Delhi District Court
State vs . 1) Monu Mann on 26 August, 2022
IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS
JUDGE-04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 58014/2016
CNR No. DLNT01-000779-2014
State Vs. 1) Monu Mann
S/o Sh. Kehar Singh
R/o H.No.-635, Vill-Alipur, Gadhi, Delhi
(Proceedings already stand abated
vide order dated 08.08.2018)
2) Gulshan Bhardwaj
S/o Sh. Madan Lal
R/o H. No.-1563, East Handi Pana, Alipur,
Delhi.
3) Yogesh @ Tunda
S/o Sh. Rajender Singh
R/o H. No. 1585, Dulia Colony, Village
-Alipur, Delhi.
Also at : Village Bhatgoan, Sonipat, Haryana.
4) Kuldeep Maan
S/o Sh. Jagbir
R/o H.No. 218, Naya Baans, Delhi.
(He has been declared proclaimed offender
vide order dated 23.10.2018)
5) Digvijay Saroha
S/o Sh. Dharambir
R/o H.No. J279, Model Town, Sonipat,
Haryana
6) Zarnail Singh @ Zaily
S/o Sh. Amrik Singh
R/o Village Janghola, Delhi.
(Proceedings already stand abated
vide order dated 07.11.2017)
SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 1 of 44
7) Jitender @ Gogi
S/o Sh. Mehar Singh
R/o H.No. 1494, Village Alipur, Delhi.
(Proceedings already stand abated
vide order dated 01.11.2021)
FIR No. : 401/2014
Police Station : Alipur
Under Sections : 307/34 IPC
Date of committal to Sessions Court : 25.08.2014
Date of institution : 08.08.2014
Date of Argument : 29.07.2022
Date of reservation of order : 25.08.2022
Date on which Judgment pronounced : 26.08.2022
JUDGMENT
1. In brief, the case of the prosecution is that on 27.04.2014 on receipt of DD No. 9A, regarding gun shot fire upon one person at Valmiki Chowk, Alipur, the IO of the case SI Roop Lal alongwith Constable Kapil reached at the above mentioned spot, where they came to know that injured has been shifted to SRHC hospital by PCR Van. No eyewitness met at the spot. HC Ajay was left at the spot to preserve the spot and crime team was called. IO of the case alongwith Ct. Kapil went to SRHC hospital and he collected MLC No. 1232/14 of the injured Vikas @ Aalu, s/o Sh. Charan Singh, wherein the concerned doctor had mentioned "fit for statement" and hence, IO recorded statement of the injured Vikas @ Aalu, s/o late Charan Singh, r/o H.No. 1187, Valmiki Mohalla, Alipur, Delhi, who stated that he resides at the above mentioned address alongwith his family and did job of Sweeper in MCD. He further stated that a verbal argument took place between his nephew Sumit and Sanjay, resident of Alipur prior to 15-20 days SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 2 of 44 due to which he gave 5-7 slaps to Sanjay. He further stated that thereafter 4-5 days later accused Jitender @ Gogi (against whom proceedings already stand abated vide order dated 01.11.2021) met him alongwith 3-4 boys in the gali and told him to leave Alipur otherwise he can not live since he slapped his brother Sanjay and disrespected his brother. He further stated that today i.e on 27.04.2014, when he was going to barber shop for shaving and at the time he reached near the shop the associates of accused Jitender @ Gogi namely Yogesh @ Tunda, Monu Mann (against whom proceedings already stand abated vide order dated 08.08.2018), Gulshan Bhardwaj @ Gulu, Zarnail Singh @ Zaily (against whom proceedings already stand abated vide order dated 07.11.2017) and Kuldeep Mann (who has been declared proclaimed offender vide order dated 23.10.2018) came down from Accent car and on the instigation of accused Monu, accused Yogesh and Gulshan rushed towards him to caught hold him and when he escaped from them from the Santro car standing in front of him, accused Digvijay Saroha residence of Sonipat got down from the car and caught hold of him. He further stated that Monu and Zarnail Singh also came there, they started giving beatings to him and pushed him down. He further stated that in the meanwhile accused Monu taken out his pistol stating that "today we will finish him" and with intention to kill him, Monu fired towards him. He further stated that lying on the ground he tried to save himself and the bullet hit at the upper part of the knee of his right leg. He further stated that on raising noise by him, they all left the spot in the above mentioned two cars. He further stated that accused Sanjay, Jitender Gogi and above mentioned accused persons gave injuries to him with intention to kill him and prayed that legal action may be taken against them.
It is further the case of the prosecution that during investigation SI Roop Lal prepared site plan, got inspected the spot from the crime team SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 3 of 44 officials, photographs of the spot were taken. No chance print, stains of blood and empty cartridge met at the spot. Thereafter, IO started search of the wanted accused persons of the present case but all the accused persons found to be away from their respective houses.
On 12.05.2014, SI Roop Lal received the application for surrender moved on behalf of accused Gulshan Bhardwaj and Monu Mann. SI Roop Lal with due permission of the Court interrogated accused persons in the Court complex and both the accused persons admitted their guilt. Thereafter, IO arrested both the accused persons and took their two days P.C remand. However, during the two days P.C remand neither remaining accused persons could be arrested since they were absconding, nor the pistol used in the crime could be recovered and accused Monu Mann (against whom proceedings already stand abated) informed that after commission of offence, he handed over the said pistol to accused Jitender @ Gogi. IO obtained result on the MLC of the injured and concerned doctor mentioned the injures as simple and also mentioned that the bullet has not removed from the body of injured. The concerned doctor of Department of Forensic Medicine BJRM hospital after examining the victim and after getting his X-ray mentioned the injuries as grievous in nature and caused by bullet present in the thigh region. During investigation statements of witnesses were recorded and it came to the knowledge that accused Sanjay was resident of Alipur and was known to accused Jitender @ Gogi and it also came to the knowledge that due to the scuffle of Sumit with accused Sanjay, Vikas gave beatings to Sanjay and for this reason accused Jitender @ Gogi used to keep grudge with Vikas @ Aalu. Accused Sanjay was not found involved in the incident of 27.04.2014 and the weapon of offence could not be recovered during investigation. During investigation, it also came to the knowledge of the investigating agency that SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 4 of 44 accused Monu Mann and Gulshan Bhardwaj on the asking of accused Jitender @ Gogi alongwith other associates namely Yogesh Tunda, Zarnail Singh @ Zaily, Kuldeep Mann and Digvijay Singh Saroha had caused gunshot injury upon the complainant with the intention to kill him. All the accused persons were known to the complainant and their names were mentioned in the FIR. Since accused Jitender @ Gogi, Yogesh Tunda, Zarnail Singh @ Zaily, Kuldeep Mann and Digvijay Singh Saroha had not joined the investigation, their NBWs were obtained and charge-sheet against accused Monu Mann and Gulshan Bhardwaj u/s 307/34 IPC and 27/54/59 Arms Act was filed in the Court of Ld M.M on 08.08.2014, which was committed to the Court of Sessions vide order dated 11.08.2014 and assigned to ld. Predecessor of this Court vide order dated 25.08.2014.
Thereafter, on 15.11.2014 supplementary charge-sheet u/s 307/34/120B/174A IPC qua declaring of proclaimed offenders of accused Jitender @ Gogi, Yogesh @ Tunda, Zarnail Singh @ Zaily, Kuldeep Mann and Digvijay Singh Saroha, wherein it was mentioned by the IO concerned that since the above mentioned accused persons could not be arrested despite best efforts, process u/s 82/83 Cr.P.C was issued against them by the concerned Court and they were declared proclaimed offenders vide order dated 05.11.2014. During investigation the complainant gave statement that at the time of the incident in question accused Yogesh, Digvijay Saroha, Kuldeep and Zarnail Singh @ Zaily caught hold of him and they also gave him beatings and thereafter accused Monu Mann fired upon him. He also stated that accused Jitender @ Gogi hatched the conspiracy of his murder. The said supplementary challan was committed to the Court of Sessions vide order dated 19.11.2014 and assigned to ld Predecessor of this Court vide order dated 20.11.2014.
SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 5 of 44Thereafter, on 06.07.2015, another supplementary charge sheet against accused Digvijay Saroha and Kuldeep @ Fajja u/s 174A IPC was filed, wherein it was mentioned that main charge-sheet against accused Monu Mann and Gulshan Bhardwaj had already been filed and the fact of absconding by accused Jitender @ Gogi, Yogesh @ Tunda, Zarnail Singh @ Zaily, Kuldeep Mann and Digvijay Singh Saroha was mentioned therein. It was also mentioned in the supplementary charge-sheet that complainant informed that at the time of incident in question accused Yogesh, Digvijay, Kuldeep and Zarnail Singh @ Zaily caught hold of him and gave beatings to him and thereafter accused Monu Mann fired upon him for which accused Jitender @ Gogi hatched conspiracy. As per the case of the prosecution, the names of accused Digvijay Saroha and Kuldeep Mann @ Fajja are also mentioned in the FIR. It is further case of the prosecution that the complainant Vikas made specific allegations against accused Digvijay Saroha and Kuldeep Mann @ Fajja of caught hold of him and their participation in the incident in question. Both the accused persons were known to the complainant and have been declared proclaimed offender by the Court. On the basis of statements of the complainant, supplementary charge-sheet u/s 307/34/120B/174A IPC was prepared against accused accused Digvijay Saroha and Kuldeep Mann @ Fajja and filed in the Court. The said supplementary charge-sheet was committed to the Court of Sessions vide order dated 09.07.2015 and assigned to ld Predecessor of this Court vide order dated 10.07.2015.
On 01.08.2015, another supplementary charge-sheet qua accused Yogesh @ Tunda, who has already been declared as proclaimed offender in the present case vide order dated 05.11.2014 was filed, mentioning therein that on 07.07.2015 on receipt of an information from P.S Mahindra Park, Delhi SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 6 of 44 that the wanted criminal of the present case namely Yogesh @ Tunda has been arrested by them in case FIR No. 60/15, u/s 302/34 IPC and in his disclosure statement the said accused disclosed about his involvement in the present case. On 19.07.2015 with the permission of the Court the above said accused was interrogated at Tihar Jail and during his interrogation accused admitted about his involvement in firing incident with the complainant Vikas @ Aalu alongwith his associates. On finding proof to arrest him, the accused was arrested in the present case and on 20.07.2015 after producing before the concerned Court was sent to judicial remand. The complainant in his statement stated that at the time of incident in question accused Yogesh, Digvijay, Kuldeep and Zarnail Singh @ Zaily caught hold him gave him beatings and thereafter accused Monu Mann fired upon him, for which accused Jitender @ Gogi had hatched conspiracy. In his statement complainant Vikas made specific allegations against accused Yogesh @ Tunda of caught hold of him and his participation in the incident in question and the accused was known to the complainant and has been declared proclaimed offender by the Court. On the basis of statement of the complainant, supplementary charge-sheet u/s 307/34/120B/174A IPC was prepared against accused Yogesh @ Tunda and filed in the Court. The said supplementary charge sheet was committed to the Court of Sessions vide order dated 04.08.2015 and assigned to ld Predecessor of this Court vide order dated 07.08.2015.
On 23.04.2016, another supplementary charge-sheet qua accused Jitender @ Gogi, who has already been declared as proclaimed offender in the present case vide order dated 05.11.2014 was filed, mentioning therein that on 08.03.2016 on receipt of DD No. 27B that the wanted criminal of the present case namely Jitender @ Gogi has been arrested by them in case SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 7 of 44 FIR No. 102/16, u/s 307/336/186/279/34 IPC and 25/27 Arms Act and in his disclosure statement the said accused disclosed about his involvement in the present case. On 07.04.2016 with the permission of the Court the above said accused was interrogated at Rohini Jail and during his interrogation accused admitted about his involvement in firing incident with the complainant Vikas @ Aalu alongwith his associates. On finding proof to arrest him, the accused was arrested in the present case from Rohini Jail and on 08.04.2016 after producing before the concerned Court, one day P.C remand of the said accused was taken. During P.C remand of the accused efforts were made to recover the pistol used by accused Monu Mann at the time of commission of offence and handed over by him to accused Jitender @ Gogi after use, but same could not be recovered. Thereafter, accused was sent to judicial remand. The complainant in his statement stated that accused Jitender @ Gogi threatened him stating that he(complainant) can not live alive now and thereafter the incident of firing took place with him. In his statement complainant Vikas made specific allegations against accused Jitender @ Gogi and the accused was known to the complainant and has been declared proclaimed offender by the Court. On the basis of statement of the complainant, supplementary charge-sheet u/s 307/34/120B/174A IPC was prepared against accused Jitender @ Gogi and filed in the Court. The said supplementary charge-sheet was committed to the Court of Sessions vide order dated 25.06.2016 and assigned to ld Predecessor of this Court vide order dated 27.04.2016.
2. Separate charge u/s 307/34 IPC against accused Yogesh @ Tunda, Kuldeep Mann and Digvijay Saroha was framed vide order dated 18.08.2015 and vide order dated 15.09.2014 charge u/s 27 Arms Act against accused SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 8 of 44 Monu Mann and u/s 307/34 IPC against accused Monu Mann and Gulshan Bhardwaj and vide order dated 29.04.2016 charge u/s 307/34 IPC against accused Jitender @ Gogi were framed, to which they pleaded not guilty and claimed for trial.
3. The prosecution had examined 16 witnesses in support of its case. The details of said witnesses are as under:-
S.No Name of prosecution witness Purpose of examination .
1 PW-1 Sh. Vikas @ Jitender @ PW-1, Sh. Vikas @ Jitender @ Alu, Alu the complainant/victim of this case deposed in detail about the incident in question. He came to prove his statement given by him to the police officials in the hospital as Ex.
PW1/A. He also came to prove seizure memo as Ex. PW1/B, site plan as Ex. PW1/C and copy of FIR No. 343/14 as Ex. PW1/DA. He got exhibited the case property as Ex. P-1.
2 PW-2 Dr. Ashutosh Gupta PW-2 Dr. Ashutosh Gupta, Specialist(Orthopedics), SRHC hospital deposed that on 04.08.2014 SI Satish Kumar moved before the M.S of SRHC hospital an application alongwith MLC No. 1232/14 of the injured for getting opinion. He further deposed that he gave his opinion Ex. PW2/A and also preferred for opinion from Forensic Expert also.
3 PW-3 Dr. Bhim Singh PW-3 Dr. Bhim Singh, Associate Professor, Department of Forensic Medicine and Toxicology, Subharti Medical College, Meerut, U.P SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 9 of 44 deposed that on 27.04.2014 he was posted as M.D (Forensic Medicine) Incharge Mortuary, BJRM hospital and received an application from SI Satish Kumar alongwith MLC No. 1232/14 of the injured. He further deposed that he also examined the injured and proved the opinion given by him as Ex. PW3/A. 4 PW4 Ct. Kapil PW-4 Ct. Kapil deposed that on 27.04.2014, he alongwith IO SI Roop Lal reached at the spot i.e Balmiki Chowk, Alipur, where they came to know that injured has been shifted to SRHC hospital. He further deposed about the initial investigation carried out in the present case like their visit to the hospital, collections of MLC of the injured, recording of statement of the injured, registration of FIR of the present case and seizure of case property etc. 5 PW5 HC Shiv Om PW-5 HC Shiv Om, photographer of the crime team deposed that on 27.04.2014, on receipt of a call from District Control Room he alongwith SI Anil Kumar and HC Satish reached at the place of occurrence i.e Harijan Chaupal, Balmiki Chowk, Alipur, Delhi and upon the instructions of IO, he took 6 photographs of the place of occurrence from different angles. He came to prove the photographs as Ex.PW5/A-1 to Ex. PW5/A-6 and negatives as Ex.PW5/B-1 to Ex.
PW5/B-6.
6 PW6 Dr. Manoj Kumar PW-6, Dr. Manoj Kumar, Medical Officer, SRHC hospital deposed on SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 10 of 44 27.04.2014 he examined the injured vide MLC No. 1232/14 and got exhibited the above said MLC as Ex.
PW6/A. 7 PW7 Inspector Anil Kumar PW-7 Inspector Anil Kumar deposed that on 27.04.2014, on receipt of a call from District Control Room he alongwith HC Shiv Om and HC Satish reached at the place of occurrence i.e Harijan Chaupal, Balmiki Chowk, Alipur, Delhi and they met with SI Roop Lal. He further deposed that he inspected the spot and prepared his report as Ex.
PW7/A. 8 PW8 Ct. Trinder PW-8 Ct. Trinder deposed that on 12.05.2014 he joined investigation of the present case alongwith IO SI Roop Lal to Rohini Court and IO moved an application before ld M.M for interrogation of accused Gulshan Bhardwaj and Monu Mann. He came to prove the arrest memo of accused Monu Mann as Ex. PW 8/A, his personal search memo as Ex. PW8/B, arrest memo of accused Gulshan as Ex. PW8/C, his personal search memo as Ex. PW8/D, disclosure statement of accused Monu Mann as Ex. PW8/E and disclosure statement of accused Gulshan as Ex. PW8/F. He further deposed that during PC remand accused Gulshan Bhardwaj pointed out the place of occurrence vide memo Ex. PW8/G and Monu Mann pointed out the place of occurrence vide memo Ex. PW8/H. 9 PW9 SI Roop Lal PW-9 SI Roop Lal the first IO of the case deposed about the investigation SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 11 of 44 carried out by him at initial stage. He deposed about receipt of information regarding the offence in question, his visit to the spot and thereafter at SRHC hospital. He further deposed that at SRHC hospital they found Vikas @ Alu admitted in the said hospital having injury caused by bullet. He further deposed that he recorded statement of the injured and returned back to the spot, where they found the crime team officials. The crime team officials inspected the spot and took photographs of the spot. He further deposed that on the basis of statement of the complainant, he prepared rukka Ex. PW9/A. He further deposed that he made efforts to search the accused persons but in vain. He further deposed about seizure of the clothes of the complainant, preparation of the site plan, arrest of the accused persons namely Monu Manna and Gulshan, conducting of their personal search and recording of their disclosure statements. He further deposed that he made efforts to trace the weapon of offence but same could not be recovered and thereafter on 31.05.2014 he was transferred from the said P.S and he handed over the case file to MHC(M).
10 PW10 ASI Devender Joshi PW-10 ASI Devender Joshi deposed that on 27.04.2014 at about 8.10 a.m he received an information from control room through telephone to the effect that one person had been caused gunshot injury at Balmiki Chowk, Alipur and accordingly he SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 12 of 44 lodged DD entry No. 9A in roznamcha and he proved the same as Ex. PW10/A. He further deposed that at about 11.15 a.m, Ct. Kapil brought a rukka sent by SI Roop Lal and on the basis of said rukka he got registered the FIR of this case and got exhibited the computerized copy of FIR as Ex. PW10/B and made endorsement on the same as Ex.
PW10/C. He came to prove the original certificate u/s 65B of Indian Evidence Act as Ex. PW10/D. 11 PW-11 Sh. Vikas PW-11 deposed that he is a driver by profession and used to drive TATA ACE Chota hathi. He further deposed that he did to remember the exact date but on one day in the month of August 2014, he received a phone call of the police officials of P.S Alipur for joining the investigation of the present case. He further deposed that he went to P.S Alipur where he met with SI Satish Kumar and complainant of this case. This witness did not support the case of the prosecution and turned hostile at the time of recording of his testimony before the Court.
12 PW-12 Inspector Mukesh PW-12 deposed that on 06.07.2015, Kumar on receipt of a secret information to the effect that wanted accused of the case FIR No. 60/15, u/s 302/34 IPC, P.S Mahindra Park i.e accused Yogesh @ Tunda would come to village Bhat Gaon, Sonipat and accordingly he prepared a raiding party consisting of himself and Ct. Pardeep. He further deposed about apprehension of accused Yogesh @ Tunda and about SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 13 of 44 recording of disclosure statement Ex. PW12/A of accused Yogesh @ Tunda by IO Inspector C.M Meena, in his presence.
13 PW-13 Inspector C.M Meena PW-13, the investigating officer of case FIR No. 60/15, u/s 302/34 IPC, P.S Mahindra Park deposed that on 06.07.2015, at about 4.30 p.m, he received an information on phone from Inspector Mukesh Kumar regarding apprehension of accused Yogesh @ Tunda from his residence at village Bhat Gaon, Sonipat. He further deposed that Inspector Mukesh Kumar informed him that they would bring accused Yogesh @ Tunda to Mukarba Chowk and accordingly he reached at Mukarba Chowk, Delhi and above said accused was produced by Inspector Mukesh Kumar and Ct. Pradeep to him. He further deposed that he effected arrest of accused Yogesh @ Tunda in case FIR No. 60/15, P.S Mahendra Park, u/s 302/34 IPC and recorded his disclosure statement Ex. PW12/A, wherein accused Yoesh @ Tunda disclosed about his involvement in the present case FIR. He further deposed that during investigation, IO of the present case also recorded his statement.
14 PW-14 SI Jagbir PW-14 deposed that on 05.06.2015, on receipt of a secret information by SI Satish Kumar at about 4-4.30 p.m, about movement of accused Digvijay at Singhu border, a raiding party was constituted comprising of HC Praveen, Constable Jitender, HC Kuldeep, SI Satish Kumar and SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 14 of 44 himself and they reached at Singhu boarder. He further deposed that at about 6.30 p.m, one person was apprehended and on interrogation he disclosed his name as Digvijay Saroha and on interrogation also disclosed about his involvement in the present case. This witness came to prove the arrest memo, personal search memo and diclosure statement of accused Digvijay Saroha as Ex.
PW14/A, Ex. PW14/B and Ex.
PW14/C. He further deposed about the investigation joined by him on 25.06.2015 alongwith HC Praveen, Ct. Mahesh, Ct. Satish, Ct. Jaideep and deposed about arrest of accused Kuldeep Mann from Uttrakhand on 27.06.2015. PW-14 came to prove the arrest memo, personal serarch memo and disclosure statement of accused Kuldeep Maan as Ex.
PW14/D to Ex. PW 14/F. He got exhibited the pointing out memo of the place of occurrence prepared on the pointing out of accused Kuldeep Maan as Ex. PW14/G. 15 PW-15 SI Gajender PW-15 deposed that on 25.06.2015, the further investigation of this case was marked to him. He further deposed that he collected the case file from concerned MHC(R). He further deposed that on 28.06.2015, HC Praveen and SI Jagbir produced one person, who initially told his name as Lalit but later on he disclosed his name as Kuldeep Maan @ Fajja. He further deposed about arrest of the said accused, his personal search memo, recording of his disclosure SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 15 of 44 statement and preparation of pointing out memo. He further deposed that on 29.06.2015, he handed over the case file to MHC(R) of P.S Alipur.
16 PW-16 Inspector Satish Kumar PW-16 Inspector Satish Kumar deposed that on 11.06.2014, investigation of the present case was marked to him. He further deposed that he obtained the MLC of injured Vikas @ Aalu, recorded statement of witnesses, obtained NBWs against five accused persons namely Yogesh @ Tunda, Kuldeep Maan @ Fajja, Journail @ Jally, Jitender @ Gogi Maan & Digvijay Saroha. He further deposed that he got the process u/s 82 Cr.P.C executed against all the above said five accused persons and they were declared as Proclaimed Offender and he filed the supplementary charge-sheet qua the five accused persons. He further deposed about the investigation carried out by him on 05.06.2015, 19.07.2015 and on 07.04.2016 and came to prove disclosure statement of accused Yogesh @ Tunda as Ex. PW16/A, his arrest memo as Ex. PW16/B. PW-16 also came to prove disclosure statement of accused Jitender @ Gogi as Ex. PW16/C and his arrest memo as Ex. PW16/D.
4. On 18.08.2015, joint statement of accused Yogesh @ Tunda and Digvijay Saroha was recorded to the effect that they do not want to recall the prosecution witnesses i.e PW-2 Dr. Ashutosh Gupta, PW-3 Dr. Bhim Singh, PW-4 Constable Kapil, PW-5 HC Shivam, PW-6 Dr. Manoj Kumar, PW-7 Dr. SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 16 of 44 Anil Kumar, PW-8 Ct. Tirender, PW-9 SI Roop Lal for their cross examination as they adopt the cross examination of said eight witnesses conducted on behalf of co-accused Monu Mann and Gulshan Bhardwaj. They further deposed that they have no objection if testimonies of above said witnesses be read as evidence against them.
5. On 29.04.2016, accused Jitender @ Gogi gave statement that he does not want to recall the prosecution witnesses i.e PW-2 Dr. Ashutosh Gupta, PW-3 Dr. Bhim Singh, PW-4 Constable Kapil, PW-5 HC Shivam, PW- 6 Dr. Manoj Kumar, PW-7 Dr. Anil Kumar, PW-8 Ct. Tirender, PW-9 SI Roop Lal, PW-10 ASI Devenmder, PW-12 Inspector Mukesh Kumar and PW-13 Inspector C.M Meena. He further deposed that he wanted to adopt the cross examination of above said witnesses, conducted on behalf of co-accused persons of this case and have no objection if their testimony is read as evidence against him.
6. On 20.10.2015, the then ld Additional P.P for State gave statement to the effect that he drop Ct. Pradeep cited as witness in the supplementary list of witnesses being the witness of repetitive facts in respect of which PW-12 Inspector Mukesh Kumar and PW-13 Inspector C.M Meena have already been examined.
7. After completion of prosecution evidence, statement of the accused was recorded u/s 313 Cr.P.C., wherein they denied the case of prosecution and claimed that they have been falsely implicated in the present case. The accused persons had chosen not to lead any defence evidence and hence matter was adjourned for final arguments.SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 17 of 44
8. I have heard Sh. Sanjay Jindal, Additional P.P for the State and ld respective defence counsels namely Sh. Rajesh Tanwar, ld, counsel for accused Yogesh @ Tunda, Sh. Ankur Sharma, ld Amicus Curiae for accused Gulshan and Sh. Ronak Singh and Ms. Babita Ahlawat, ld counsels for accused Digvijay Saroha and perused the record.
9. Ld. Additional P.P for the State has stated that prosecution has proved its case against the accused persons beyond reasonable doubts and hence accused persons may be convicted in the present case.
10. On the other hand, ld respective defence counsels have submitted that there are nothing incriminating against the accused persons and they have been arrested in this case only on the basis of disclosure statements made by them in some other case.
11. Ld counsel for accused Yogesh @ Tunda has also filed written arguments mentioning therein that in the present case the story of the prosecution creates doubts on the credibility and truthfulness of the incident in question. It is also mentioned in the written arguments that there are material contradictions in the case of the prosecution since as per the version of the PW-1 he was given merciless beatings by accused persons, but as per PW-6 Dr. Manoj Kumar, who conducted the medical examination of the complainant opined the injury of the complainant as simple. It is further asserted in the written arguments that PW-3 Dr. Bhim Singh on looking the lower (pyjama) of the complainant deposed that there is no hole or burning mark or blacking in the lower, which also falsify the story of the prosecution. It is further asserted SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 18 of 44 that as per the testimony of PW-3 he can not rule out the possibility that the injury sustained by the complainant could be caused by RoyalSeema Phenomena. PW-3 also deposed that it can not be confirmed if the object found present inside the thigh of the injured was lead or otherwise. It is further averred that as per PW-4 Ct. Kapil and PW-5 HC Shiv Om, no blood and even blood stains were found present on the spot. It is further asserted that the complainant is also involved in criminal cases and has falsely implicated the accused persons in the present case. It is further mentioned in the written arguments that at the most the case of the prosecution covers u/s 324 IPC and not u/s 307 IPC. Ld counsel has relied upon the judgment passed by Hon'ble Supreme Court of India in case tiled as Shyam Sharma Vs. State of Madhya Pradesh, 2017(4) LRC 305(SC) in support of his submissions.
12. In the written arguments filed on behalf of accused Dig Vijay Saroha it is mentioned that the said accused has been falsely implicated in the present case. It is further asserted that PW-11, the public witnesses did not support the case of the prosecution. It is further mentioned that the version of the complainant is not believable since he himself is involved in many criminal cases including the cases of murder. It is further mentioned that this accused was not even present at the spot and has been falsely implicated in this case due to previous enmity as in the year 2013 the present accused was helping some other candidate while the complainant was helping some other candidate. It is further mentioned that nothing was recovered from the possession of the present applicant/accused. Ld counsel has relied upon judgement passed by Hon'ble Supreme court of India in case titled as Balkar Singh Vs State of Punjab, 1994AIR(SC) 1133 in support of his submissions.SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 19 of 44
13. For the sake of convenience, evidence of prosecution witnesses in short is mentioned as under:-
14. PW-1, Sh. Vikas @ Jitender @ Alu, the complainant/victim of this case deposed in detail about the incident in question. He came to prove his statement given by him to the police officials in the hospital as Ex. PW1/A. He also came to prove seizure memo as Ex. PW1/B, site plan as Ex. PW1/C and copy of FIR No. 343/14 as Ex. PW1/DA. He got exhibited the case property as Ex. P-1. He further deposed that approximately 15-20 days prior to 27.04.2014, one Sanjay who was resident of Alipur had an altercation with his nephew Sumit. He further deposed that at that he was also present there with his nephew and he gave 5-7 slaps to Sanjay. PW-1 further deposed that thereafter about 4-5 days, one Jitender @ Gogi, who was bed character of P.S Alipur, met him in the gali, when he was coming outside his house. He further deposed that at that time accused Jitender @ Gogi was accompanying with 4-5 boys and he stated to him as to how he dare to slap Sanjay. He further deposed that thereafter he went to attend his duties at Azadpur and after his duty hours he went to the house of his maternal uncle situated at Mangolpuri. He further deposed that he kept on going for his duty from the house of his maternal uncle for 7-8 days and thereafter he came back to his house.
It is further deposed by him that on 27.04.2014 at about 7.30/7.45 a.m, when he had gone to barbar shop for shaving and was waiting ahead 4-5 shops from the said shop due to rush in the said shop, accused persons namely Monu Mann and Gulshan alongwith their associates namely Yogesh, Kuldeep Mann and one sardar boy namely Jelly came there on an Ascent car and started giving beatings to him. He further deposed that in the meantime, one SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 20 of 44 more associate namely Vijay Saroha also came there in one Santro car. He further deposed that accused Monu exhorted "Pakdo sale ko" and thereafter accused Gulshan and Yogesh caught hold of him. He further deposed that accused persons grippled with him and gave beatings to him and during the course of giving beatings to him accused Monu uttered the words " hat jao aaj iska kaam tamam kar dunga". He further deposed that accused Manu also took out a pistol and fired one bullet at him which hit him on portion just above right knee of leg. He further deposed that he raised noise of "pakdo pakdo" on which several public persons came there and accused persons and their associates managed o flee away from there. He further deposed that some one made a PCR call at 100 number, on which PCR Van came and removed him to Raja Harish Chander Hospital. He further deposed that after some time police officials came and recorded his statement Ex. PW1/A. He further deposed that thereafter doctor of SRHC hospital shifted him to LNJP hospital on the same night and accordingly he was shifted to LNJP hospital. It is further deposed that he was given some treatment by the doctor of LNJP hospital, but bullet could not be removed despite efforts and same is still lying inside his right leg. It is further deposed by him that he got discharged from LNJP hospital by his family members. He further deposed that in LNJP hospital he handed over the black pajama worn by him at the time of commission of offence to the IO, which was seized by him vide seizure memo Ex. PW1/B. He further deposed that during investigation he accompanied IO to the place of occurrence and pointed out the place of occurrence. He further deposed that IO prepared site plan Ex. PW1/C at his instance. During his evidence PW-1 identified the black colour pajama/lower and exhibited the same as Ex. P-1.
SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 21 of 4414.1 During cross examination this witness deposed that he was booked in two kalandras u/s 107/151 Cr.P.C of P.S Alipur of the year 2014 and voluntarily deposed that said Kalandra were falsely prepared at the instance of associates of the accused persons. He further deposed that one of the said Kalandra was prepared prior to registration of FIR of this case and the other Kalandra was prepared subsequent thereto. He has further deposed that he has no knowledge if any FIR was lodged against him at P.S Alipur on 13.04.2014. He further deposed that he did not remember the exact date when his nephew Sumit had an altercation with accused Sanjay. During cross examination of this witness the copy of FIR No. 343/14, u/s 323/324/341/34 IPC, registered at P.S. Alipur on dated 13.04.2014 was confronted to this witness and copy of the same was got exhibited as Ex. PW1/DA.
15. PW-2 Dr. Ashutosh Gupta deposed that on 04.08.2014 an application moved by SI Satish Kumar alongwith MLC No. 1232/14 of injured Vikash was marked to him for opinion purposes. He further deposed that after perusal of the photocopy of the MLC of the injured Vikas he opined the nature of injury as simple. He further deposed that he also referred for opinion from Forensic Expert. He came to prove the opinion given by him as Ex. PW2/A.
16. PW-3 Dr. Bhim Singh Associate Professor deposed that on 27.04.2014, he received an application from SI Satish Kumar alongwith MLC No. 1232/14 of Vikas and the patient was also brought before him. He further deposed that upon local examination, he observed that there was difficultly in walking and movement of right knee joint. He further deposed that after carefully perusing the MLC, X-ray plate and after examining the patient, he SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 22 of 44 opined the nature of injury as grievous, caused by the bullet present in the thigh region of patient Vikas. He came to prove his opinion in this regard as Ex. PW3/A. 16.1 During cross examination this witness deposed that at the time of examination, he had also gone through the X-ray of the injured in the present case. He further deposed that he cannot say as to how the bullet was stopped/remained in the thigh. He has further deposed that no opinion has been sought from him by the investigating agency to the effect that if the injury could be self inflicted or by Royalseema Phenomena.
17. PW-4 Ct. Kapil, deposed that on 27.04.2014, he alongwith SI Roop Lal on receipt of DD No. 9A went to Balmiki Chowk, Alipur, where they came to know that injured has been shifted to SRHC hospital by PCR van. He further deposed that no eye-witnesses met them at the spot and information was given to Crime Branch. He further deposed that in the meantime HC Ajay also reached at the spot and he alongwith SI Roop Lal went to SRHC hospital, where they found injured Vikas @ Alu admitted in the hospital having injury caused by bullet. He further deposed that SI Roop Lal collected MLC of the injured and returned back to the spot. He further deposed that when they returned back to the spot they found SI Anil Kumar, Incharge of crime team and photographer HC Sri Om was present at the spot alongwith HC Ajay. PW-4 further deposed that crime team officials inspected the spot and took photographers of the spot. He further deposed that SI Roop Lal prepared rukka on the basis of statement given by injured Vikas and handed over to him and accordingly he went to police station, got registered the FIR and returned back to the P.S alongwith original rukka and copy of SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 23 of 44 FIR, which was handed over by him to SI Roop Lal. He further deposed that IO made efforts to search the accused persons but in vain. He further deposed that thereafter they also went to SRHC hospital where injured Vikas @ Alu produced his black colour sports lower, which was found in torn condition from the right side beneath knee. He further deposed that the said lower was kept in a pullanda, sealed with seal of RL and seized by the IO vide seizure memo Ex. PW1/B. He further deposed that IO recorded his statement in this regard.
17.1 During cross examination this witness admitted that they had not found any blood stains either at the spot or nearby. He also admitted that in his presence no public person met with the IO who had heard the noise of bullet being fired at the said spot.
18. PW-5 HC Shiv Om deposed that on 27.04.2014, on receipt of call from District Control room he alongwith SI Anil Kumar, Incharge Mobile Crime Team and HC Satish reached at the place of occurrence I.e Harijan Chaupal, Balmiki Chowk, Alipur, Delhi. He further deposed that upon the instructions of IO, he took 6 photographers of the place of occurrence from different angles. He came to prove the said photographers as Ex. PW5/A-1 to Ex. PW5/A-6 and their negatives as Ex. PW5/B-1 to Ex. PW5/B-6.
18.1 During cross examination this witness deposed that no blood or even no blood stains were found present at the place of occurrence when they had reached there.
19. PW-6 Dr. Manoj Kumar deposed that on 27.04.2014 at around SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 24 of 44 8.22 a.m, one patient namely Vikas was brought by PCR official namely HC Mahipal Singh with alleged history of gun shot wound. He has further deposed that the said patient was conscious oriented and his general condition was fair. He further deposed that he conducted medical examination of said patient vide MLC No. 1232/14 and got exhibited the above mentioned MLC as Ex. PW6/A. He further deposed that on examination of the said patient he was found having wound above right knee with blackening all around the wound. He further deposed that the patient was given primary treatment and was referred to SR(Ortho) for further management and treatment.
19.1 During cross examination this witness deposed that except the above mentioned injury no other injury was found present on the person of patient Vikas at the time of his local examination conducted by him on 27.04.2014. He has admitted that the phenomena of occurrence of blackening takes place only when gun shot was fired from close range but not otherwise.
20. PW-7 Inspector Anil Kumar deposed that on 27.04.2014, on receipt of call from District Control Room, he alongwith crime team officials went to the place of occurrence I.e in front of under construction Hrijan Chopal near Balmiki Chowk, village Alipur, Delhi where they met with SI Roop Lal. He further deposed that he inspected the place of occurrence and photographer HC Shivom took photographs of the place of occurrence. This witness got exhibited his report as Ex. PW7/A.
21. PW-8 Ct. Trinder deposed that on 12.05.2014, he joined the investigation of this case with IO SI Roop Lal. He further deposed that on that day he accompanied IO to Rohini Court and IO informed him that the wanted SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 25 of 44 accused on the present case have surrendered before the Court. He further deposed that IO moved an application before ld M.M for interrogation of accused persons namely Gulshan Bhardwaj and Monu Mann. He further deposed that IO effected arrest of accused Monu Mann, conducted his personal search and also recorded disclosure statement of accused Monu Mann and got exhibited the arrest memo as Ex. PW8/A, personal search memo as Ex. PW8/B and disclosure statement of accused Monu Mann as Ex. PW8/E. He further deposed that IO also effected arrest of accused Gulshan Bhardwaj, conducted his personal search and also recorded disclosure statement of accused Gulshan Bhardwaj and got exhibited the arrest memo as Ex. PW8/C, personal search memo as Ex. PW8/D and disclosure statement of accused Monu Mann as Ex. PW8/F. He further deposed that IO also obtained the PC remand of both the accused persons and during PC remand accused Monu Mann and Gulshan Bhardwaj pointed out the place of occurrence. He got exhibited the pointed out memos as Ex. PW8/G and Ex. PW8/H.
22. PW-9 SI Roop Lal deposed that on 27.04.2014, at about 8.10 a.m, DD No. 9A was marked to him and accordingly he alongwith Ct. Kapil went to Balmiki Chowk Alipur, where they came to know that injured has already been taken to SRHC hospital. The further deposition of this witness is similar on the lines of PW-4 Ct. Kapil, hence same is not reproduced herein for the shake of brevity. This witness further deposed about the investigation carried out by him on 29.04.2014 and 12.05.2014. The deposition of PW-9 qua the investigation carried out by him on 12.05.2014 is similar to the deposition of PW-8 Ct. Tirender hence same is also not reproduced herein for the shake of brevity. It is further deposed by PW-9 that he also made efforts for the recovery of arm used in the commission of offence but despite efforts, same SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 26 of 44 could not be recovered as both the accused persons stated to him that arm used in the commission of offence of the present case has been handed over by them to their co-accused Jitender @ Gogi. It is further submitted by him that on 31.05.2014, he was transferred and he handed over the file of this case to MHC(R).
22.1 During cross examination this witness denied the suggestion that a false case has been registered against the accused persons by him in connivance with the complainant of the present case. He also denied the suggestion that accused persons had not pointed out the place of occurrence and their signatures were obtained on blank papers, which were converted into pointing out memo.
23. PW-10 ASI Devender Joshi deposed that on 27.04.2014 at about 8.10 a.m on receipt of an information from Control Room(Outer District) through telephone to the effect that one person had been caused gun shot injury at Balmiki Chowk Alipur he lodged DD No. 9A in Roznamcha. This witness got exhibited the copy of DD No. 9A as Ex. PW10/A. He further deposed that on the said day at about 11.15 a.m, Ct. Kapil brought a rukka sent by SI Roop Lal and on the basis of which he got registered the FIR No. 401/14 through computer operator. He got exhibited the computerized copy of FIR No. 401/14 as Ex. PW10/B and the endorsement made on the rukka as Ex. PW10/C. He also got exhibited the original certificate u/s 65B of Indian Evidence Act as Ex. PW10/D.
24. PW-11 Sh. Vikas, the resident of village Alipur did not support the case of the prosecution and declared hostile by ld Additional P.P for State SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 27 of 44 and during cross examination this witness denied the suggestion that he is intentionally not supporting his statement which he had made before the IO as he entered into any out of Court compromise with the accused persons of the present case.
25. PW-12 Inspector Mukesh Kumar deposed that on 06.07.2015, he received an information that wanted accused of the case FIR No. 60/15, u/s 302/34 IPC registered at P.S Mahendra Park I.e accused Yogesh @ Tunda had gone to village Bhat Gaon Sonipat. He further deposed that accordingly he prepared a raiding party consisting of him and Ct. Pradeep and they reached at village Bhat Gaon Somipat in a private vehicle. He further deposed that on pointing out of informer they managed to apprehend accused Yogesh @Tunda. He further deposed that he gave information regarding the apprehension of accused Yogesh @ Tunda to IO of the case FIR No. 60/15 Inspector C.M Meena, who met them at Mukarba Chowk, Delhi. He further deposed that Inspector C.M Meena interrogated the accused and effected his arrest in case FIR No. 60/15, P.S Mahendra Park. He further deposed that accused Yogesh @ Tunda also made disclosure statement and got exhibited the disclosure statement as Ex. PW12/A. He further deposed that during investigation IO of the present case also recorded his statement.
26. PW-13 Inspector C.M Meena deposed that on 06.07.2015, at about 4.30 p.m, he received an information from Inspector Mukesh Kumar regarding the apprehension of accused Yogesh @ Tunda from his residence at village Bhat Gaon, Sonipat. He further deposed that Inspector Mukesh Kumar also informed that he would be bringing accused Yogesh @ Tunda to Mukarba Chowk. He further deposed that accordingly he went to Mukarba SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 28 of 44 Chowk Delhi where he met Inspector Mukesh Kumar and Ct. Pradeep who produced to him Yogesh @ Tunda. He further deposed that he effected arrest of accused Yogesh @ Tunda in case FIR No. 60/15 of P.S Mahendra Park. He further deposed that accused also made disclosure statement in case FIR No. 60/15 wherein he also disclosed about his involvement in the present case.
27. PW-14 SI Jagbir deposed that on 05.06.2015, at about 4-4.30 p.m, a secret informer came to SI Satish Kumar and told about the movement of accused Dig Vijay at Singhu boarder. He further deposed that on the said information, a raiding party comprising of HC Praveen, Ct. Jitender, HC Kuldeep, SI Satish Kumar and himself reached at Singhu boarder. He further deposed that at about 6.30, p.m a person was apprehended at the instance of secret informer, whose name lateron revealed as Dig Vijay Saroha. He further deposed that on interrogation he disclosed about firing at Vikas @ Aalu with his accomplices. He further deposed that accused Dig Vijay Saroha was arrested in this case, his personal search was conducted and his disclosure statement was recorded. He got exhibited the arrest memo of the said accused as Ex. PW14/A, his personal search memo as Ex. PW14/B and his disclosure statement as Ex. PW14/C.
28. This witness further deposed that on 25.06.2015, a secret informer came to him and informed that accused Kuldeep Mann, the declared proclaimed offender of this case, would go to Hemkunt Gurudwara, Rishikesh, Uttrakhand and could be apprehended if raided. He further deposed that accordingly a raiding party comprising HC Praveen, Ct. Mahesh, Ct. Satish, Ct. Jaideep and himself was constituted and they left for Rishikesh, where they reached on 26.06.2015. He further deposed that on 27.06.2015 a secret SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 29 of 44 informer came to him and informed that Kuldeep @ Fazza was staying at Room No. 58, Hemkunt Gurudwara, they reached there and apprehended accused Kuldeep, who initially told his name as Lalit. He further deposed that he was brought to Delhi and produced before SI Gagender Singh who was IO of the case. He further deposed that accused Kuldeep @ Fazza was arrested in this case, his personal search was conducted and his disclosure statement was recorded. He got exhibited the arrest memo of the said accused as Ex. PW14/D, his personal search memo as Ex. PW14/E and his disclosure statement as Ex. PW14/F. He further deposed that accused also pointed out the place of occurrence and got exhibited the pointing out memo as Ex. PW14/G. 28.1 During cross examination this witness denied that accused Dig Vijay was apprehended from his house and all the proceedings were conducted in the police station after due manipulation.
29. PW-15 SI Gajinder deposed that on 25.06.2015, the further investigation of the present case was marked to him. He further deposed that he collected the case file of the present case from MHC(R) and on 28.06.2015 HC Praveen and SI Jagbir produced one person to him in the P.S and on inquiry initially the said person told his name as Lalit and later on he disclosed his identity as Kuldeep Maan @ Fajja. He further deposed about the arrest of the accused in the present case as already deposed by PW-14 hence same is not reproduced herein for the shake of brevity.
30. PW-16 Inspector Satish Kumar deposed that on 11.06.2014, investigation of the present case was marked to him. He further deposed that he obtained the opinion of the doctor on the MLC of injured Vikas @ Aalu SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 30 of 44 and doctor opined the injury as grievous. He further deposed that he obtained NBWs against five accused persons namely Yogesh @ Tunda, Kuldeep Maan @ Fajja, Jurnail @ Jally, Jitender @ Gogi Maan and Digvijay Saroha, prepared charge-sheet and filed the same in the Court. He further deposed that he got the process u/s 82 Cr.P.C executed against all the above said five accused persons and all of them declared Proclaimed offenders and thereafter I filed supplementary charge-sheet against the said accused persons as P.O. PW- 16 further deposed about the investigation carried out on 05.06.2015 as deposed by PW-14 and hence same is not reproduced herein for the shake of brevity. PW-16 further deposed that on 19.07.2015, he received information that accused Yogesh @ Tunda has been arrested in some other case and was lodged in Tihar Jail. He further deposed that he interrogated accused Yogesh @ Tunda and recorded his disclosure statement Ex. PW16/A. He further deposed that he formally arrested accused Yogesh @ Tunda vide memo Ex. PW16/B and thereafter he filed supplementary charge-sheet against accused Yogesh @ Tunda. PW-16 further deposed about the investigation carried out by him on 07.04.2016 and deposed that on the said date he received information that accused Jitender @ Gogi has been lodged in Rohini Jail. He further deposed that he went to Rohini Jail and interrogated accused Jitender @ Gogi and recorded his disclosure statement Ex. PW16/C. He further deposed that he formally arrested accused Jitender@ Gogi vide memo Ex. PW16/D and filed supplementary charge sheet against accused Jitender@ Gogi accordingly.
31. During cross examination this witness deposed that complainant Vikas is involved in many other criminal cases. He further deposed that he has investigated one case of murder pertaining to the complainant bearing FIR SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 31 of 44 No. 193/15, u/s 302/307/452/120B/34 IPC of P.S Alipur.
Appreciation of Evidence
32. The present case is related with the direct evidence. In a case where there is an eye witness the reliability of the witness has to be testified. It is the quality and not the quantity of witnesses that is required to prove a case. Even a single witness, if he is reliable and trustworthy may be sufficient to convict. In the present case, the witness Vikas @ Jitender @ Alu (PW1) is the sole eye witness as well as the victim. Whole of the case rests on the testimony of PW1. Apart from this eye witness there are medical evidences which also need to be seen in proper prospective whether they corroborate the case of the complainant or not.
Whether the testimony of PW1 is reliable
33. The relevant portion of the testimony of PW1 is as under :
"......Approximately 15-20 days prior to 27.04.2014, one Sanjay who is the resident of Alipur, had an altercation with my nephew Sumit. At that time I was also present there with my nephew. Upon this, I gave 5-7 slaps to Sanjay....."
"....Thereafter, after about 4-5 days, one Jitender @ Gogi (absconding) who is B.C. of PS Alipur, met me in the gali when I was coming outside my house. At that time, the said Jitender @ Gogi was accompanying with 4-5 boys. The said Jitender @ Gogi stated to me as to how dare I had slapped Sanjay and he further stated to me that the said Sanjay was like his brother and he further threatened me that in case I want to live, then I should leave the village forever......"
"....accused persons namely Monu Mann and Gulshan SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 32 of 44 alongwith their associates namely Yogesh, Kuldeep Mann and one sardar boy namely Jelly came there on an Ascent car and started giving beatings to him. He further deposed that in the meantime, one more associate namely Vijay Saroha also came there in one Santro car. He further deposed that accused Monu exhorted "Pakdo sale ko" and thereafter accused Gulshan and Yogesh caught hold of him. He further deposed that accused persons grappled with him and gave beatings to him and during the course of giving beatings to him accused Monu uttered the words " hat jao aaj iska kaam tamam kar dunga". He further deposed that accused Manu also took out a pistol and fired one bullet at him which hit him on portion just above right knee of leg...."
"....I was given some treatment by the doctor of LNJP Hospital but bullet could not be removed despite efforts and same is still lying inside my right leg...."
"......On the same night of the day of incident, when I was shifted to SRHC Hospital, Narela, I was told by the doctors that bullet is inside my thigh. I made efforts for getting myself treated so that the bullet can be taken out from my thigh. the doctors advised me operation in this regard. The doctors further informed me that there is risk in removing the bullet as in order to remove the same during operation, my vain in the leg could be damaged, which could be risky for my life....."
There is no prima facie contradiction in the statement of the PW1. Even during the cross-examination nothing has come on record as to say that the witness is unreliable. In the testimony, it is reflected that there was some small quarrel between the nephew (Sumit) of the victim and (Sanjay) whom the accused used to treat as brother. This fact in itself cannot be a ground to falsely implicate the accused persons. Apart from this fact nothing has come as to not rely the version of the witness.
SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 33 of 44WHETHER THE VERSION OF COMPLAINANT GETS CORROBORATION FROM MEDICAL EVIDENCE 33.1 The relevant portion of the testimony of PW2 Dr. Ashutosh Gupta is as under:
".....I perused the photocopy of MLC of Vikash S/o Charan Singh and after perusing the same, I opined the nature of injury as simple....."
The relevant portion of the testimony of PW3 Dr. Bhim Singh is as under:
"......I found healed scar mark of 1.6 cm x 1.5 cm from of right thigh, lower part, situated 3 cm above the upper part of knee joint patella. I also perused the X-ray plate number 8253 (right side) dated 07.08.2014 which shows metallic object i.e. bullet in the lateral aspect of right femur bone with displacement of periosteum. When the aforesaid patient Vikas walked in my presence, I observed that there is difficulty in walking and movement of right knee joint.
"....After carefully perusing the MLC, X-ray plate and after examining the patient, I opined the nature of injury as grievous and caused by bullet present in the thigh region of patient Vikas....."
The relevant portion of the testimony of PW6 Dr. Manoj Kumar is as under:
"......On examination of the said patient, he was found having the following injuries:-
1. Wound above right knee with blackening all SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 34 of 44 around the wound..."
From the testimony of PW3 and PW6, the prosecution has been able to prove on record that PW1 /victim Vikas @ Jitender @ Alu had sustained gunshot injury. The testimony of PW1 Vikas @ Jitender @ Alu deposed that he received gunshot injury on portion just above right knee of leg finds corroboration from the testimony of PW3 Dr. Bhim Singh who opined the nature of injury as grievous and caused by bullet present in the thigh region of patient Vikas and PW6 Dr. Manoj Kumar, who opined that wound above right knee with blackening all around the wound. So the testimony of the witness gets sufficient corroboration from the aforesaid witnesses who are independent and reliable witnesses.
Nature of injury
34. Regarding the nature of injury, the prosecution has produced PW2 Dr. Ashutosh Gupta, PW3 Dr. Bhim Singh and PW6 Dr. Manoj Kumar.
PW6 Dr. Manoj Kumar deposed that on 27.04.2014 at around 8.22 a.m, one patient namely Vikas S/o Sh. Charan Singh aged about 24 years male was brought by PCR official namely HC Mahipal Singh with alleged history of gun shot wound. He has further deposed that the said patient was conscious oriented and his general condition was fair. He further deposed that he conducted medical examination of said patient vide MLC No. 1232/14 and got exhibited the above mentioned MLC as Ex. PW6/A. He further deposed that on examination of the said patient he was found having wound above right knee with blackening all around the wound. He further deposed that the patient was given primary treatment and was referred to SR(Ortho) for further management and treatment. He further deposed that on 09.05.2014 , he had opined the injuries as simple on the basis of relevant reports and the MLC Ex.PW6/A. SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 35 of 44 During cross examination this witness deposed that except the above mentioned injury no other injury was found present on the person of patient Vikas at the time of his local examination conducted by him on 27.04.2014. He has admitted that the phenomena of occurrence of blackening takes place only when gun shot was fired from close range but not otherwise.
PW2 Dr. Ashutosh Gupta has opined the nature of injury as simple on the MLC No. 1232/14 of Vikash.
PW-3 Dr. Bhim Singh deposed that on 27.04.2014, he received an application from SI Satish Kumar alongwith MLC No. 1232/14 of Vikas and the patient was also brought before him. He further deposed that upon local examination, he found healed scar mark of 1.6 cm x 1.5 cm front of right thigh, lower part, situated 3 cm above the upper part of knee joint patella. He also perused the X-ray plate number 8253 (right side) dated 07.08.2014 which shows metallic object i.e. bullet in the lateral aspect of right femur bone with displacement of periosteum. He observed that there was difficultly in walking and movement of right knee joint. He further deposed that after carefully perusing the MLC, X-ray plate and after examining the patient, he opined the nature of injury as grievous, caused by the bullet present in the thigh region of patient Vikas.
During cross examination this witness admitted that in case of a hand gun i.e. revolver and pistol, if bullet is fired for more than 1 ft. distance, there is no blackening around the entrance wound. He voluntarily stated that such blackening would appear in case the bullet is fired from contact range or from close range i.e. at around 6 inch or less. He further deposed that at the time of examination, he had also gone through the X-ray of the injured in the present case. He further deposed that he cannot say as to how the bullet was stopped/remained in the thigh. He has further deposed that no opinion has SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 36 of 44 been sought from him by the investigating agency to the effect that if the injury could be self inflicted or by Royalseema Phenomena. He further deposed that the place where the said bullet /metallic piece was present, is on the vital part of the body of the injured and it could have been easily removed by the Surgeon.
PW2 Dr. Ashutosh Gupta and PW6 Dr. Manoj Kumar have opined the nature of injuries as simple and Dr. Bhim Singh has opined the nature of injury as grievous.
As far as the testimony of PW2 and PW6 is concerned, who have stated the injury as simple, it is to be noted that PW2 and PW6 had given opinion which does not specify the injury in detail while PW3 has specifically given details of the injury. PW3 has also given statement that the injury was on the vital part. PW3 has referred to the distance of gun fire, referred to blackening of the wound and also gone through X-ray. Therefore, the testimony of PW3 is more reliable regarding the nature of injury being grievous. Moreover, the injury is caused by the bullet is not denied by either PW2 or PW6. It is also pertinent to mention here that the basic requirement of Section 307 is also established by the testimony of PW6 who has stated that the alleged injury was on the vital part of the complainant. The aforesaid witnesses are Government Hospital Doctors and there is nothing on record to attribute any bias towards the accused persons therefore, it is fully established that the injury could have been fatal in view of Section 307 IPC but anyhow it did not result in death of the complainant/victim. So, the nature of injury correlates with the requirement of Section 307 IPC.
Whether the testimony of another independent witness Vikas is reliable SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 37 of 44
35. There was another eye witness PW11 Vikas. He has outrightly denied any knowledge regarding the present case. He stated that "I do not know anything in the present case." The said witness did not support the case of the prosecution as the said witness turned hostile. Even though this witness turned hostile but it does not frustrate the case of the prosecution. The testimony of the main witness/complainant is reliable as it gets corroboration from the medical evidence. So, the testimony of PW11 Vikas is rejected.
Abatement of case qua Monu Mann (A-1), Zarnail Singh (A-
6) and Jitender @ Gogi (A-7)
36. It is pertinent to mention here that during trial accused Monu Mann (A-1), Zarnail Singh (A-6) and Jitender @ Gogi (A-7) have expired and proceedings were stood abated against them vide order dated 08.08.2018, 07.11.2017 and 01.11.2021. Other accused Kuldeep Maan (A-4) has been declared proclaimed offender vide order dated 23.10.2018.
Role of accused Gulshan Bhardwaj, Yogesh @ Tunda and Digvijay Saroha
37. What is stated by the complainant regarding role of aforesaid accused persons. The relevant portion of his testimony is reproduced herein :-
"......Thereafter, after about 4-5 days, one Jitender @ Gogi (absconding) who is B.C. of PS Alipur, met me in the gali when I was coming outside my house. At that time, the said Jitender @ Gogi was accompanying with 4-5 boys. The said Jitender @ Gogi stated to me as to how dare I had slapped Sanjay and he further SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 38 of 44 stated to me that the said Sanjay was like his brother and he further threatened me that in case I want to live, then I should leave the village forever......"
".......accused persons namely Monu Mann and Gulshan alongwith their associates namely Yogesh, Kuldeep Mann and one sardar boy namely Jelly came there on an Ascent car and started giving beatings to him. He further deposed that in the meantime, one more associate namely Vijay Saroha also came there in one Santro car. He further deposed that accused Monu exhorted "Pakdo sale ko" and thereafter accused Gulshan and Yogesh caught hold of him. He further deposed that accused persons grappled with him and gave beatings to him and during the course of giving beatings to him accused Monu uttered the words " hat jao aaj iska kaam tamam kar dunga". He further deposed that accused Manu also took out a pistol and fired one bullet at him which hit him on portion just above right knee of leg...."
Whether Section 34 is applicable on the accused persons.
37.1 All the abovesaid accused persons are associates of accused Jitender @ Gogi. From the abovesaid deposition of PW1, it is clear that there is common intention of all the accused persons and in furtherance of their common intention they had come together to cause beatings and other injuries to the complainant and after having injured him they had left the place at the same time. Hence, Section 34 IPC is attracted in this case.
Motive of accused persons.
38. It was the case of the prosecution that accused Sanjay was SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 39 of 44 resident of Alipur and was known to accused Jitender @ Gogi and due to the scuffle of Sumit with accused Sanjay, PW1 slapped Sanjay and for this reason accused Jitender @ Gogi used to keep grudge with Vikas @ Aalu and that is why with a clear motive of taking revenge with PW1 associates of accused Jitender @ Gogi (proceedings against whom already stand abated vide order dated 01.11.2021) come together and gave beatings to PW1 and accused Monu Mann (proceedings against whom already stand abated vide order dated 08.08.2018) fired a gun shot on him.
Remaining witnesses are formal in nature.
39. Other witnesses produced by prosecution were PW4 Ct. Kapil, PW5 HC Shiv Om, PW7 Insp. Anil Kumar, PW8 Ct. Trinder, PW9 SI Roop Lal, PW10 ASI Devender Joshi, PW12 Insp. Mukesh Kumar, PW13 Insp.C.M. Meena, PW14 SI Jagbir, PW15 SI Gajender, PW16 Insp. Satish Kumar. All these witnesses are those witnesses who had participated in the investigation subsequent to the incident. They all are police officials. They all are formal in nature and not material witnesses. They do not go into the merits of the case.
Defence taken by accused persons The accused persons has taken the defence that the injury was self inflicted
40. Ld. defence counsels have also taken the defence that PW3 Dr. Bhim Singh has deposed in his testimony during cross-examination that there is no hole, burning mark or blackening in the lower worn by PW1 and that the injury was self inflicted one cannot creates doubt on the credibility of PW1. As PW3 Dr. Bhim Singh deposed that the lower is in torn condition from right SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 40 of 44 side and torn portion is very lengthy from ankle to thigh.
From the deposition, the possibility of bullet was inserted in the leg from torn portion cannot be ruled out.
40.1 Ld. defence counsels have also taken the defence that the injury was self inflicted one or caused by RoyalSeema Phenomena.
In this regard prosecution has produced witness PW3 Dr. Bhim Singh who deposed in his cross-examination that no opinion has been sought from him by the investigating agency to the effect that if the injury could be self inflicted or by Royalseema Phenomena. PW2 Dr. Ashutosh Gupta and PW6 Dr. Manoj Kumar never mentioned in the report that the injuries could be self-inflicted.
40.2 Ld. defence counsels have also taken the defence that in the cross-examination of PW1 Vikas @ Alu, he deposed that "I made efforts for getting myself treated so that bullet can be taken out from my thigh. The doctors advised me operation in this regard. The doctors further informed me that there is a risk in removing the bullet as in order to remove the same during operation, my vain in the leg could be damaged, which could be risky for my life." but in contrary PW3 Dr. Bhim Singh deposed that "the place where the said bullet/metallic piece was present, is on the non-vital part of the body of the injured and it could have been easily removed by the surgeon". This creates doubt on the story of prosecution and on the credibility and truthfulness of complainant.
He has also taken the defence that PW3 Dr. Bhim Singh deposed that "it is not confirmed if the object found present inside the thigh of the injured was lead or otherwise."
SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 41 of 44There is no point in this argument of ld. Defence counsel.
40.3 Ld. defence counsels have also taken the defence that PW4, Ct. Kapil and PW5 HC Shiv Om deposed that no blood or even blood stains were found present at the spot. PW7 Inspector Anil Kumar deposed that no blood stains or empty cartridge were found at the spot and PW9 SI Roop Lal has deposed that they had not found any blood stains either at the spot or nearby. PW9 also admitted that no public persons met him and informed him that he heard the noise of bullet being fired at the said place. Ld. defence counsel argued that this creates the reasonable doubt on the credibility of the complainant.
If no blood stain and any empty cartridge were found present at the spot, then this does not mean that bullet did not hit his leg. This does not create doubt on the credibility of the complainant. If there is no independent witness or eye witness was found present at the spot then it does not mean that the victim/complainant is not a reliable witness. In the present case, the prime witness is the victim himself. He is a direct witness of the incident. It is also pertinent to mention that single witness may be sufficient, if he is reliable.
41. Ld. defence counsel has also taken the defence that PW1 is not a trustworthy person as in his cross-examination earlier he said he is not involved in any of the criminal case or that no FIR is registered against him but later on he admitted that some FIR are registered against him which prove that he had filed the present case just to falsely implicate the accused.
If some FIR are registered against the victim then it does not mean that in order to falsely implicate the accused he himself get injured in such a way in which his own life could have been lost.
SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 42 of 4442. Ld. defence counsel has taken the defence that only allegation against accused Digvijay Saroha is that he came at the spot in one Santro Car. He further argued that there is no evidence of instigation by the present accused and mere presence of the accused cannot make him liable.
From the statement of victim that "when he tried to save himself from their clutches and started running from there, accused Digvijay Saroha who was resident of Sonipat, also got down from one Santro car and caught hold of him". He is also one of the associate of the other accused persons. After apprehending the complainant, he also started beating alongwith other co-accused persons. Subsequently, he also ran alongwith the other accused persons. Therefore, common intention is attributable against him also.
Conclusion
43. From the deposition of PW1 Sh. Vikas @ Jitender @ Alu, it is clear that the PW1 is a reliable witness as he is the direct witness of the incident in question. His version also gets corroboration from medical evidence. The possibility of self infliction is not made out, as no one get himself injured in such a way in order to falsely implicate the accused persons. All the accused persons had come together and given beatings to PW1 and subsequent to firing by the deceased Monu Mann, all the accused persons have gone from the place together which establishes the common intention between the accused persons specially in wake of the fact that the accused persons were having grudge regarding the slap being caused by the complainant to Sanjay a close aide to one of the accused persons. The defence taken by ld. defence counsels that the injuries were self inflicted and he was willfully implicating them due to the involvement in a previous case could not SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 43 of 44 substantiate on record to disbelief the testimony of the complainant.
From the overall circumstances, it transpired that all the abovesaid accused persons Gulshan Bhardwaj (A-2), Yogesh @ Tunda (A-
3) and Digvijay Saroha (A-5) are associates and they all had come with the common intention to take revenge from PW1 and wanted to give such bodily injuries to him. Therefore, the accused persons namely Gulshan Bhardwaj (A-2), Yogesh @ Tunda (A-3) and Digvijay Saroha (A-5) all are held guilty for Section 307/34 IPC. Accused Kuldeep Mann was declared proclaimed offender and could not be arrested till pronouncement of this judgment.
Announced in the open Court today i.e. on 26th August, 2022 (Shivaji Anand) Additional Sessions Judge-04 North District/Rohini Courts/Delhi SC No. 58014/2016, FIR no. 401/2014 PS Alipur State Vs Monu Mann etc. Page 44 of 44