Delhi District Court
State vs Zakir@ Nasir on 9 October, 2023
IN THE COURT OF SH. SACHIN SANGWAN :
ADDITIONAL SESSION JUDGE (FAST TRACK COURT - 01):
SOUTH-EAST DISTRICT : SAKET COURTS : NEW DELHI
SC No.1669/2016
STATE Vs Zakir @ Nasir
FIR No.: 217/2008
U/S 396/307/34 & 302/34 IPC & 52-A r/w
section 212 IPC, 1860
PS : Defence Colony
Particulars of the case
1. Date of offence : 11.07.2008
2.Offence complained of : u/s 396/307/34 IPC & 302/34 IPC &
52-A r/w section 212 IPC, 1860
3.Name of the complainant : Sh. Manvender Singh
4. Name of the accused no.1 : Zakir @ Nasir @ Jagdish
his parentage s/o Mohd. Anwar Hussain,
his residential address R/o: A-119, Sangam Vihar, New Delhi
Name of accused no.2 : Om Shiva @ Kalu
his parentage s/o Sh. Pyare Lal
his residential address R/o: D-3/155,
Shiv Durga Vihar Colony,
Lakkarpur, District Faridabad,
Haryana.
Name of accused no.3 : Israil @ Ajay
his parentage s/o Sh. Sahabuddin
his residential address R/o: Samana Kamruddin Nagar,
PS Dulara, Ghaziabad, UP
Name of the accused no.4 : Suresh @ Kala
his parentage s/o Sh. Mehar Singh,
his residential address R/o: Village Barara, PS Sadar Panipat,
District Panipat, Haryana
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 1 of 60
FIR No. 217/2008
5. Plea of accused : Pleaded not guilty
6.Final order : All accused acquitted
Date of Institution : 10.12.2008
Date of Judgment reserved on : 21.09.2023
Date of Judgment : 09.10.2023
Ld. Addl PP for State : Sh. Ashok Debbarma
Ld. Counsel for accused Zakir @ Nasir : Ms. Rajni Singh
Ld. Counsel for accused Om Shiva @ Kalu,
Israil @ Ajay and Suresh @ Kala : Sh. Nitin Rai Sharma
JUDGMENT
1. CHARGESHEET 1.1 As per chargesheet, on 11.07.2008 at 09.16 pm an information was received via DD No.38A regarding snatching of a vehicle near Andrews Ganj Flyover. Thereafter, SI Anil along with Ct. Nihal reached beneath Andrews Ganj Flyover where Mahinder Singh, the Inspector, Law & Order and the SHO, Defence Colony along with his staff and complainant/injured Manvender Singh were also found present. They came to know that a scooterist had received a bullet injury and he was shifted to hospital by HC Surender in a TSR. Injured Manvender Singh along with Ct. Kuldeep were also sent to Trauma Center, AIIMS. On inspection of the spot, one scooter bearing registration no.DL 2SL 6198 make Bajaj and one motorcycle bearing registration no. DL 8SAD 6710 make Hero Honda were found SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 2 of 60 FIR No. 217/2008 standing at the spot and there was an empty cartridge near the rear wheel of the scooter. The photographer and crime team were called at the spot. Leaving SI Anil Kumar and Ct. Nihal Singh at the spot for inspection, Inspector Mahinder Singh along with Ct. Kuldeep went to AIIMS hospital where he found one Sanjeev s/o Sh. K. K. Suri was admitted therein with alleged history of "gun shot injury" and patient was declared "brought dead". The MLC of injured Manvender s/o Prakash Narayan was obtained and his statement was recorded.
1.2 Injured Manvender, inter alia, stated that he was returning from the Hazrat Nizamuddin railway station on motorcycle bearing no. DL 3SAX 8464 and at about 09.15 pm he reached at Andrews Ganj Flyover Red Light. Therein four persons came on two motorcycles and robbed him of his motorcycle on gun point and also caused injuries to him using butt of the pistol. He was also fired upon but was saved. One scooterist present at the spot tried to help him but he was shot by the robbers. The four robbers took away his motorcycle after leaving one of the motorcycles on which they came at the spot. The number of motorcycle which was left by the robbers at the spot was DL8SAD 6719, Make CBZ. He can identify all said boys if shown to him. Meanwhile, one police official came at the spot and took the injured scooterist to the hospital in an auto. 1.3 After recording statement of complainant, IO Inspector Mahinder Singh got the FIR registered and took up the investigation. The spot was got photographed and finger prints were lifted by the crime team from motorcycle. IO inspected the spot and also prepared site plan at complainant's instance. All exhibits i.e. empty cartridge, scooter and motorcycle were taken into police possession. During investigation, Arif SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 3 of 60 FIR No. 217/2008 i.e. the driver of TSR bearing no. DL 1RK 4997 was inquired and his statement was also recorded. Eye witness of the spot Pawan Khanduja and Ct. Vijay were also inquired and their statements were also got recorded. Thereafter, Nitin, owner of the motorcycle, came at the spot and his statement was recorded regarding the ownership of motorcycle bearing no. DL 3SAF 8464. Portraits of robbers were got prepared. The dead body of deceased was handed over to his legal heir after conducting post mortem and belongings of the deceased seized during post mortem by the Autopsy surgeon were deposited in the malkhana. Thereafter, IO made his best efforts for searching the accused and the case property. 1.4 On 18.07.2008 IO/Inspector reached police station Sangam Vihar where he met Inspector Anil Kumar and told the circumstances to him. Said Inspector told him that one Sushila @ Guddan is the wife of one accused namely accused Israil @ Ajay and she had told him that accused Om Prakash @ Bunty, Zakir, Rajesh, Om Shiva and one Karuna stayed at Garhi Shahdara, Sector 142, Noida at one Shripal's house and they all used to execute the incidents of robbery and murder in the nearby areas. She had also told him about the incident of 11.07.2008. The IO obtained the copy of statement of Sushila recorded by said Inspector during investigation of case FIR No. 364/2008 dated 05.07.2008 u/s 302 IPC, PS Sangam Vihar. He also recorded the statement of Inspector Anil Kumar u/s 161 CrPC.
1.5 On 20.07.2008 the IO/Inspector along with his team reached at PS New Friends Colony wherein he along with other team members and crime team reached at Garhi Shahdara, Sector 142, Noida at Shripal's house where two motorcycles were found parked at a courtyard near a weighing SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 4 of 60 FIR No. 217/2008 bridge. Out of which, one was of make Pulsar of black colour bearing registration no. DL 3SAX 8464, snatched in the present case and the other motorcycle was of make Pulsar of black colour bearing no. DL3ASX 7616, snatched from the area of PS Sangam Vihar. The said motorcycles were got photographed and inspected by the finger print expert. There was mud on both the tyres and rims of both motorcycles. Same was scratched from two places and two samples were taken along with earth control from two places. All four exhibits were seized and same were also signed by landlord Shripal and his son Ravinder at the spot and their statements were also recorded. Thereafter, raid was conducted at the house of landlord Shripal along with him and he showed the room where those boys used to reside. Things were scattered in the said room and there were two empty mobile boxes, prepaid card having written mobile no. 9310928216 and two reliance SIM cards. Beside this, in the room adjacent to said room various other articles including eight bunch of keys and eight different keys of motorcycles were found and same were seized. From the balcony of house 18 cherry seeds were also taken into possession. The statements of Ravindra, Mahipal, Sandeep and Sanjay were recorded at the spot regarding the proceedings. Statements of landlord Shripal, Mahipal and Ravindra were also recorded regarding letting out of house. 1.6 On 21.07.2008 PM report of deceased Sanjeev was obtained. On 22.07.2008 driver Ballu Singh was examined regarding dropping of members of Bunty Group at Garh Ganga by him on 17.07.2008. 1.7 On 31.07.2008 on receiving DD No. 46-A regarding arrest of accused Zakir @ Nasir by special staff, the IO/Inspector got to know that he had admitted his guilt regarding the present case also. IO collected the SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 5 of 60 FIR No. 217/2008 relevant papers of said case and on 20.08.2008 he conducted the raid at District Panipat because Zakir who was on police remand in South District had told that accused Om Prakash @ Banti used to live in Panipat, Haryana at the time of absconding. Then IO along with his team reached Panipat where some team was already deputed there and he met one person namely Nazira. IO showed him the photographs of each of the five accused persons, out of which he recognized Om Prakash @ Bunty and Rajesh @ Panni and told him that both of them lived with one Suresh @ Kala at the tubewell. On inquiry from him regarding Suresh @ Kala, he told that one Narender was uncle of Suresh @ Kala and was lodged in Karnal Jail and Suresh @ Kala knew Om Prakash @ Banti and Rajesh through his uncle. They used to come to him during their bail period and he knew that they had committed crimes but he deliberately kept them along with him and also arranged meals for them despite knowing that both of them were criminals and they had come to hide themselves after committing murder and dacoity in Delhi. When village people also came to know about the same through television, they also started asking the questions. At that time, he made them stay at Dhand, District Kurushetra. As there was sufficient material against the accused accused Suresh @ Kala, therefore, he was arrested u/s 216/109/120B IPC and his disclosure statement was recorded.
1.8 Thereafter, IO along with his team reached at Village Dhand where the accused Suresh @ Kala identified a room. Landlord of the room namely Arvind after seeing five photographs identified two persons and told that they were the same boys who were living on rent in his house. Thereafter, statements of Nazira and Arvind were recorded.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 6 of 60 FIR No. 217/2008 1.9 On 22.08.2008 accused Zakir @ Nasir was handed over by the Inspector of PS Sangam Vihar and his disclosure statement was recorded by the IO. He admitted that he along with his accomplices Om Prakash @ Bunty, Rajesh @ Panni, Israil @ Ajay and Om Shiva @ Kalu had committed the present case crimes. He was produced in the muffled face before the concerned MM for conducting his TIP but he refused to participate in the same. Thereafter, his police custody was obtained for five days.
1.10 On 23.08.2008 IO got issued NBWs against the accused Om Prakash @ Banti, Om Shiva @ Kalu, Rajesh @ Panni and Israil @ Ajay. Thereafter, he came to know that accused Om Prakash @ Banti and Rajesh @ Panni had died in an encounter for which FIR No. 416/2008, u/s 186/353, PS Badarpur, New Delhi had been recorded. He obtained the copy of said FIR, recorded statement of witnesses and also obtained the PM report of above mentioned two accused persons. On 30.08.2008 IO obtained the disclosure statement of accused Israil @ Ajay from PS Badarpur and also obtained the statement of IO SI Hira Lal. Thereafter, he moved P/W application wherein Ld. MM ordered for interrogation of said accused at Tihar Jail.
1.11 On 20.09.2008 accused Israil @ Ajay was arrested. However, he also refused to participate in the TIP.
1.12 On 25.09.2008 IO obtained one day PC remand of accused Israil and recorded his disclosure statement. During investigation, complainant saw the said accused in the police station and identified him therein as one of the robbers who was involved in the offence committed on 11.07.2008 where he caused injuries to him by using pistol and fled away from the spot SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 7 of 60 FIR No. 217/2008 after snatching his motorcycle along with his associates and also fired at the scooterist.
1.13 Exhibits were sent to FSL and statement of witnesses were recorded. The accused Israil @ Ajay, Zakir @ Nasir and Suresh @ Kala were kept in column no.3 of the chargesheet. The accused Om Prakash @ Banti and Rajesh @ Panni had already died in an encounter and were kept in column no.2. As per chargesheet, there is sufficient evidence against accused Israil @ Ajay, Zakir @ Nasir, Om Prakash @ Banti and Rajesh @ Panni for the offence u/s 302/394/397/307/34 IPC and 25/54/59 Arms Act. As per chargesheet, accused Suresh @ Kala is also liable to be tried for the offence u/s 212/109/120-B IPC. Proceedings u/s 82/83 CrPC had been initiated against the accused Kalu @ Om Shiva but he was subsequently arrested by the special cell and investigation regarding him was being conducted. FSL result was still awaited at the time of filing of main chargeshseet. Accordingly, the main chargesheet was filed against the accused Zakir @ Nasir, Suresh @ Kala and Israil @ Ajay with deceased accused Om Prakash @ Banti and Rajesh @ Panni being kept in column no.2. 1.14 Subsequently, a supplementary chargesheet was filed against the accused Om Shiva @ Kalu. As per the same, on 27.10.2008 information was received from the special cell regarding the arrest of accused Om Shiva @ Kalu in FIR No.60/2008 dated 26.10.2008 PS Special Cell. Therein the accused Om Shiva confessed his involvement in the present case FIR. The IO collected the documents of the said case and thereafter permission was obtained from the court to interrogate him. In his interrogation, he confessed his guilt in the present case and was arrested in the present case. Thereafter, application was moved for conducting his TIP SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 8 of 60 FIR No. 217/2008 but he refused to participate in the same. Thereafter, he was taken on one day police remand wherein he identified the place of occurrence. Thereupon the supplementary chargesheet was filed against him for the offence u/s 394/397/307/302 IPC read with 27 Arms Act. 1.15 Later on, the FSL report was also filed by the IO.
2. CHARGE 2.1 On the basis of the chargesheets, charge u/s 396 IPC and u/s 307/34 IPC and an alternative charge u/s 302/34 IPC was framed against Zakir @ Nasir, Israil @ Ajay and Om Shiva. Charge u/s 52-A read with section 212 IPC was framed against accused Suresh @ Kala. All accused persons pleaded not guilty to said charges and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the chargesheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 45 witnesses.
S. No. Name of the witnesses Nature of the evidence
PW-1 Dinesh Pasricha Witness to identification of
dead body of his brother in law
Sh. Sanjeev Suri
PW-2 HC Viju Traffic Police Official who was
posted near the spot and
reached at the spot on hearing
gun shot
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 9 of 60
FIR No. 217/2008
PW-3 Shripal Nagar Landlord whose wife had given
two rooms of their house on
rent to accused Israil @ Ajay
Bidhuri and witness to seizing
of two pulsar motorcycles of
said accused
PW-4 Ct. Nihal Singh Police Official who along with
SI Anil Kumar reached at the
spot on receipt of PCR call
PW-5 Ct. Surender Police official who joined the
investigation with Inspector
Mahender Singh and took
accused Suresh to his village
Barana, conducted raid there
and who took the exhibits of the
case to FSL Rohini and
deposited the same therein.
PW-6 Ct. Surender Witness to recovery of two
pulsar motorcycles from the
courtyard of Shripal
PW-7 HC Ishwar Singh Witness to pointing out of the
place of committing robbery by
accused Zakir and the place
where said accused had kept the
robbed motorcycle
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 10 of 60
FIR No. 217/2008
PW-8 Ravinder Witness whose mother had
given two rooms of their house
situated in their village on rent
to accused Israil @ Ajay
Bidhuri
PW-9 Sanjay Shripal's neighbour having
grocery store near his house
PW-10 Pawan Khanduja Eye witness who saw the
robbers escaping from the spot
PW-11 HC C. M. Meena Duty Officer
PW-12 Mahipal Shripal's brother
PW-13 Sandeep Shripal's known person
PW-14 Bablu Driver who allegedly took
accused persons to Garh Ganga
from village Shahedra, Noida,
U.P.
PW-15 Arvind Kumar Prosecution witness regarding
harbouring of accused Om
Prakash @ Banti and Rajesh @
Panni by the accused Suresh @
Kala
PW-16 Nazira Prosecution witness regarding
harbouring of accused Om
Prakash @ Banti and Rajesh @
Panni by the accused Suresh @
Kala
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 11 of 60
FIR No. 217/2008
PW-17 SI Jeet Singh Witness to arrest of accused
Zakir @ Nasir in case FIR No.
407/2008 of PS Sangam Viihar
PW-18 Manvender Singh Complainant/eye witness of the
case
PW-19 Inspector Anil Kumar Witness to the seizure of two
pulsar motorcycles bearing no.
DL 3SAX 8464 and DL 3SAX
7616, seizure of mud collected
from the tryes of said
motorcycles by scratching the
same. Also witness to seizure of
other articles from the premises
of Shripal allegedly rented out
to accused Israil @ Ajay.
PW-20 Dr. Sudhir Gupta Doctor who conducted autopsy
on the dead body of deceased
Sanjeev Suri
PW-21 Dr. Sanjeev Lalwani Doctor who along with Dr.
Manish and Dr. Arvind
conducted autopsy on the dead
body of deceased accused
Rajesh @ Panni and Om
Prakash @ Banti
PW-22 Dr.Arvind Kumar Doctor who conducted
abovesaid autopsy with PW21
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 12 of 60
FIR No. 217/2008
PW-23 Dr. D. K. Sharma Judicial Officer who conducted
TIP of accused Zakir @ Nasir
PW-24 SI Sanjay Kumar Saxena Crime Team Official regarding
inspection of Shripal's premises
and lifting of chance prints from
black pulsar motorcycle therein
PW-25 SI Nafe Singh Incharge, Mobile Crime Team
who inspected the crime scene
PW-26 ASI Manohar Lal Duty Officer who recorded the
FIR No. 407/2008, u/s 411 IPC
& 25 Arms Act
PW-27 Retired SI Girjesh Singh Witness to registration of FIR
No. 416/2008, u/s
186/332/353/307/34 IPC and
section 25/27/54/49 Arms Act at
PS Badarpur, regarding police
encounter with accused Om
Prakash @ Bunty and Rajesh @
Panni
PW-28 ASI Ganeshan Photographer, Crime Team who
had taken photographs of the
vehicles parked at the premises
of Shripal
PW-29 Dr. Vijay Kumar Doctor who prepared the MLC
of patient Sanjeev
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 13 of 60
FIR No. 217/2008
PW-30 ASI Teresh Terki Duty Officer who recorded FIR
No. 416/2008, u/s
186/353/332/307/34 IPC &
25/27 Arms Act
PW-31 HC Ranbir Police official who took the
copy of present case FIR to the
residence of Ld. MM
PW-32 HC Suresh Police official who deposited
the exhibits in FSL, Rohini
PW-33 HC Kuldeep Witness who got conducted
medical examination of injured
Manvender Singh
PW-34 ASI Jaswant Singh Witness to pointing out memo
of courtyard of Shripal at
village Garhi, Shahdra and even
place of occurrence at red light,
U-turn, under the Andrews Ganj
Flyover, at the instance of
accused Zakir @ Nasir
PW-35 ASI Giriraj Crime Team photographer who
took photographs of the crime
scene
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 14 of 60
FIR No. 217/2008
PW-36 ASI Surender Kumar Police official who reached the
spot on hearing gun shot, took
the injured Sanjeev to the
hospital and participated in the
investigation with IO
PW-37 Naresh Kumar Finger Print Expert who gave
his detailed report regarding
examination of chance prints
lifted from the scene of crime
PW-38 Inspector Deepak Panwar Finger Print Expert who lifted
six chance prints from the
motorcycle found at the spot
(DL8SAD6719)
PW-39 Rajender Singh Record clerk who proved the
MLC of injured Manvender
Singh
PW-40 ACP Mahesh Kumar Draftsman who prepared the
scaled site plan
PW-41 Inspector Arvind Witness to arrest of accused
Suresh @ Kala
PW-42 ACP Hira Lal Witness to arrest of accused
Isrile @ Ajay
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 15 of 60
FIR No. 217/2008
PW-43 Inspector Anil Kumar Police Official who reached the
spot on PCR call and was
witness to seizure of scooter,
one RC from its dicky,
motorcycle, one empty
cartridge and preparation of site
plan by the IO
PW-44 V. R. Anand Ballistics Expert who examined
the exhibits (fired cartridge) of
the present case and found it
matching with firearm of case
FIR No. 416/2008, PS Badarpur
(Encounter case)
PW-45 Dr. Puneet Puri Ballistics Expert who examined
the exhibits (clothes of
deceased Sanjeev) for firearm
residue etc. and found the hole
in the clothes as the one caused
by a firearm
3.2 The prosecution has exhibited following documents/objects in support of its case:-
No.of exhibit Nature of exhibit
Ex.PW1/A Dead body identification memo of Sanjeev
Suri
Ex.PW3/A Seizure memo of both pulsar motorcycles i.e.
DL-3SAX-7616 and DL-3SAX-8464
belonging to accused Ajay Bidhuri
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 16 of 60
FIR No. 217/2008
Ex.PW3/B Seizure memo of mud/soil wrapped on the
wheel of above mentioned motorcycles
Ex.PW6/A Pointing out memo of place of incident
prepared at the instance of accused Mohd.
Israil
Ex.PW6/B Pointing out memo of outside of the room of
gher of Shripal Nagar where accused Mohd.
Israil had left his two pulsar motorcycles
along with his associates namely Rajesh @
Panni, Bunty @ Om Praksh, Zakir @ Nasir
and Kalu @ Om Shiva
Ex.PW7/A Pointing out memo of place of commission
of robbery prepared at the instance of
accused Zakir
Ex.PW7/B Pointing out memo of the place where
accused Zakir had kept the robbed
motorcycle
Ex.PW11/A Rukka
Ex.PW11/B FIR
Ex.PW11/C DD No.38A regarding regarding snatching of
a vehicle near Andrews Ganj Flyover
Ex.PW11/D DD No.41A regarding admission of injured
Sanjeev Suri in the hospital
Ex.PW11/E DD No. 27A regarding departure of
IO/Inspector Mahender Singh for patrolling
along with Ct. Guddu Khan on a government
motorcycle bearing no. DL1SN 9019
Ex.PW11/F DD No.48A regarding the completion of the
registration of present case FIR and despatch
of FIR to IO
Ex.PW11/G DD No. 46A regarding arrest of accused
Nasir @ Zakir in case FIR No. 407/2008, u/s
25/24/29 Arms Act and his disclosure about
the present case
Ex.PW17/A Disclosure statement of accused Zakir @
Nasir in case FIR No. 407/2008, U/s 25
Arms Act r/w section 411 IPC, PS Sangam
Vihar
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 17 of 60
FIR No. 217/2008
Ex.PW18/A Complaint of Manvender Singh
Ex.PW18/B Sketches of the cartridge
Ex.PW19/A1 & Two photographs of motorcycle no.
Ex.PW19/A2 DL3SAX8464
Ex.PW19/B1 & Two photographs of motorcycle no.
Ex.PW19/B2 DL3SAX7616
Ex.PW20/A Post mortem report of victim Sanjeev Suri
Ex.PW21/A Post mortem report of deceased accused
Rajesh @ Panni
Ex.PW21/B Post mortem report of deceased accused Om
Prakash @ Bunty
Ex.PW23/A Application of the IO for conducting TIP of
accused Zakir @ Nasir
Ex.PW23/B TIP proceedings of accused Zakir @ Nasir
Ex.PW23/C Certificate regarding the TIP proceedings of
above mentioned accused
Ex.PW24/A Finger Print Expert Report regarding lifting
of chance prints from the articles/motorcycle at village Sahedra, Noida, UP Ex.PW25/A Crime Scene Inspection Report Ex.PW26/A FIR No. 407/2008, u/s 411 IPC & 25 Arms Act Ex.PW28/P2 41 photographs of the premises of Shripal wherein the motorcycle was parked Ex.PW28/P1 44 negatives of the photographs (colly) Ex.PW29/A MLC of patient Sanjeev Ex.PW30/A Duty officer who recorded the FIR No.416/2008, u/s 186/353/332/307/34 IPC and 25/27 Arms Act Ex.PW32/A Road Certificate No. 56/21/08 regarding deposition of exhibits of present case in FSL, Rohini Ex.PW32/B Acknowledgement of above mentioned certificate Ex.PW35/P1 to P7 Seven photographs of the crime scene Ex.PW35/P8 to Negatives of above mentioned photographs Ex.PW35/14 SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 18 of 60 FIR No. 217/2008 Ex.PW36/A Seizure memo of clothes of the deceased Sanjeev, blood in guaze and fired bullet Ex.PW36/B Arrest memo of accused Suresh @ Kala Ex.PW36/C Personal search memo of accused Suresh @ Kala Ex.PW36/D Arrest memo of accused Zakir @ Nasir Ex.PW36/E Disclosure statement of accused Zakir @ Nasir Ex.PW36/F Application moved by the IO for formal arrest of accused Israil @ Ajay Dhakad Ex.PW36/G Disclosure statement of accused Israil @ Dhakad Ex.PW36/H Disclosure statement of accused Om Shiva @ Kalu Ex.PW37/A Detailed report of finger print expert wherein he stated that chance prints from crime scene could not be matched with the exhibits Ex.PW37/B (colly) Photographs and negatives of chance prints Ex.PW38/A Crime Scene Inspection Report regarding lifting of six chance prints from the motorcycle at the crime scene Ex.PW39/A Authority letter given to PW38 Record Clerk for appearing on behalf of Dr. Shashank Kumar who prepared the MLC of injured Manvender Singh Ex.PW39/B MLC of injured Manvender Singh prepared by Dr. Shashank Kumar Ex.PW39/C Document showing joining and leaving of Dr. Shashank Kumar Ex.PW40/A Scaled site plan Ex.PW41/A Disclosure statement of accused Suresh @ Kala Ex.PW42/A Kalendra dated 29.08.2008 regarding arrest of accused Israil @ Ajay Ex.PW42/B DD No.40A dated 29.08.2008 regarding arrest of accused Israel SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 19 of 60 FIR No. 217/2008 Ex.PW44/A Detailed report of Senior Scientific Officer (Ballistics) regarding the exhibits (fire arms/ammunition) of the present case Ex.PW45/A Detailed report of Senior Scientific Officer (Ballistics) regarding exhibits (T-shirt of the injured/deceased) of the present case Ex. PX1 TIP proceedings dated 20.08.2008 of accused Israil @ Ajay admitted by him u/s 294 CrPC 3.3 Out of 45 witnesses examined by the prosecution, some of the witnesses turned hostile and did not support the case of prosecution even during cross examination by Ld. Addl. PP for State. Said witnesses are PW8 Ravinder, PW9 Sanjay, PW12 Mahipal, PW13 Sandeep and PW14 Bablu. All of them were witnesses regarding the residence of accused persons at the premises of Shripal and/or the recovery of motorcycle robbed in the present case, from the premises of Shripal. Even witness regarding the harbouring of deceased accused Rajesh and Bunty i.e. PW16 Nazira turned hostile to the case of prosecution. The IO of the case Inspector Mahender Singh also passed away and could not be examined by the prosecution. Thus, out of the remaining prosecution witnesses, the main witnesses of the case are:
i. PW-18 Manvender Singh, complainant/eye witness of the case, ii. PW-2 HC Viju, witness to hearing the noise of bullet firing at the spot, iii. PW-10 Pawan Khanduja, eye witness to the escape of the robbers from the spot, SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 20 of 60 FIR No. 217/2008 iv. PW-36 ASI Surender Kumar, police official who reached at the spot immediately after the incident and accompanied the IO during investigation, v. PW-43 Inspector Anil Kumar, witness to seizure of vehicles and empty cartridge from the spot of incident, vi. PW-3 Shripal, landlord whose wife had given two rooms of their house on rent to accused Israil @ Ajay, vii. PW-19 Inspector Anil Kumar, witness to the seizure of two motorcycles and various other articles from Shripal's Courtyard/house, viii. PW-27 Retired SI Grijesh Singh, witness to circumstances at the spot of encounter of accused Rajesh @ Panni and Om Prakash @ Banti. 3.4 PW-18 Manvender Singh deposed that on 11.07.2008 he was unemployed and had come to Delhi looking for some job. On that day, he came to his senior Nitin Bhushan. There was another person senior to him and Nitin Bhushan and on that day he had gone for dropping said person senior to Hazrat Nizamuddin Railway Station on Nitin's motorcycle but he do not remember the number of motorcycle. After dropping said person at the Railway station he was returning to the room where he and even Nitin was staying in Mohammadpur on rent. At about 09.00-09.15 pm, he reached the Moolchand crossing and he stopped underneath the Moolchand Flyover as the traffic light was red. Within 3-4 seconds, two persons came on their motorcycle and they were wearing helmets and they demanded to hand over his motorcycle along with keys to them. He did not give keys to them and told them that his motorcycle could run without keys so they could take away the same. One of those persons was carrying gun and he hit it on his head causing severe hurt. Meanwhile, two more persons came SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 21 of 60 FIR No. 217/2008 on their motorcycle. After parking their motorcycle by the side, they caught hold of him from his left side. He entangled the keys of his motorcycle in his finger. One of those persons who was on his left side hit him with the gun on his left collar bone due to which he fell down. He handed over the key of his motorcycle to those persons and went towards the police traffic booth and told the incident to traffic police official, who accompanied him to the spot.
He further deposed that by the time they were going to the spot and when they were behind a bus, he heard gun fire. By the time they reached the spot, said persons had already fled away. The firing was done by two persons who were not wearing helmets and they suddenly turned right towards Moolchand area and fled away. Then, they found one scooterist lying on the road. Initially, they did not notice any blood but later on they found that the said scooterist was shot at. Meanwhile, crowd gathered and police also came. Someone from the crowd picked the scooterist from the road, put him in a TSR for sending him to the hospital. The CBZ motorcycle on which two of those assailants came, was left behind by them as they had fled away on his motorcycle. Police took him to Trauma Center AIIMS where his medical treatment was done. Police recorded his statement Ex.PW18/A in police station Defence Colony.
Thereafter, he returned to the room in Mohammadpur where he stayed and then police used to visit him repeatedly at Mohammadpur in connection with this case.
On the day of incident itself, police in his presence found one empty cartridge on the spot under the Moolchand Flyover and one empty cartridge was found there by the police on the next day also. He deposed that SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 22 of 60 FIR No. 217/2008 perhaps on the next day of incident, police showed him a bullet stating that the same had hit the said scooterist. The empty cartridges were kept by the police with them. The police in his presence took measurements of the cartridges, prepared sketches of the same Ex.PW18/B and discussed about the possible gun. The live bullet was placed in a plastic jar and empty cartridges were kept in plastic bag having shape of small jar.
On next day, at about 07.00 pm to 08.00 pm he went to a building, perhaps police head quarters to see the sketches of the assailants but for some reason, the work over there could not be done so he returned with one of the police officials.
He deposed that in his presence, police had seized the bullets and motorcycle. He signed some documents to reflect that those articles i.e. the empty cartridge, live bullet and motorcycle were shown to him.
The witness stated that he does not know what a seizure memo is. He stated that he can identify those persons who had assaulted him on 11.07.2008. The witness pointed out towards accused Om Shiva and Israil as the persons who had assaulted him on 11.07.2008 but he stated that presently he do not remember the faces of other two assailants.
As the witness partially resiled from his earlier given statement to the police, he was cross examined by Ld. Addl. PP for State.
During his cross examination by prosecution, he admitted that he told the police that one of those assailants aged about 25-26 years had threatened him to leave the key of his motorcycle and ran away. He admitted that he told the police that the person with beard took out his pistol and hit its butt on his left temple and same person had hit butt of his pistol on his left shoulder when he did not given the key. He further SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 23 of 60 FIR No. 217/2008 admitted that he told the police that when he screamed for help, the person who was not wearing helmet and was standing on his right side fired with his gun towards him but the fire missed and thereafter one scooterist tried to save him. At that time, one clean shaven boy 25-26 years old person exhorted the bearded person to shoot the scooterist and thereafter said bearded person shot at the scooterist. He admitted that he told the police the registration number of CBZ motorcycle that was abandoned by the assailants as DL 8SAD 6719. He voluntarily stated that he noted down the said registration number on his hand.
He admitted that site plan was prepared by the IO at his instance and seizure memo of RC of scooter Ex.PW18/X1, of abandoned motorcycle Ex.PW18/X2 and of the empty cartridges Ex.PW18/X3, all bearing his signatures at point X were prepared in his presence. He admitted that the empty cartridge was placed in a plastic container and same was sealed with the seal of MS in his presence.
He admitted that he told the police that out of four assailants, two were not wearing helmet while other two were wearing helmets and faces of all four assailants could be clearly seen. He admitted that the accused Israil present in the court is the same bearded person who hit him with his pistol butt and he also shot at the scooterist in his presence. He admitted that the accused Zakir had snatched the key of his motorcycle from him. He admitted that accused Om Shiva was standing on his motorcycle on the spot at the time of incident. He further stated that he can identify remaining two assailants if shown to him. However, Ld. Addl. PP submitted that the other two accused namely Bunty @ Om Prakash and Rajesh @ Panni were killed in an encounter.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 24 of 60 FIR No. 217/2008 He admitted that three accused persons namely Israil, Om Shiva and Zakir were involved in the incident. He further admitted that he accompanied SI Anil to CRO where sketches of the accused persons were got prepared by him.
PW18 identified the case properties i.e. empty cartridge Ex.P1was the same cartridge which was found near the rear wheel of the scooter.
PW18 was duly cross examined by the Ld. Counsels for accused persons.
3.5 PW-2 HC Viju deposed that on 11.07.2008 he was posted as Constable in Traffic Circle Defence Colony and on that day, he was on duty from 08.00 am to 09.00 pm at Traffic point under the Andrews Ganj Flyover. At about 09.00/09.15 pm he went inside Traffic Booth for changing his uniform and at that time, suddenly he heard a noise of bullet firing. Thereafter, he reached at the said road where crowd gathered and one person was lying on the road. Gathered public persons informed him that four boys ran had away after snatching the motorcycle and had caused gun shot injury. He immediately called police at number 100 by his mobile no. 9968290245. HC Surender from PS Defence Colony came at the spot and took the injured to the hospital in a TSR. Thereafter, he left the spot and on next day, IO recorded his statement in this regard.
PW2 was duly cross examined by Ld. Counsels for the accused persons.
3.6 PW-10 Pawan Khanduja, eye witness of the case deposed that he do not remember the exact date, probably the month was July or August of 2008. He was going back from his business place by his Santro Car and at about 09.00 pm, when he reached at the red light below the Andrews Ganj SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 25 of 60 FIR No. 217/2008 Flyover, he stopped there as it was a red light. He heard the sound of a gun shot and also heard the voice of someone raising alarm. He turned around and saw four persons on two motorcycle going towards Lajpat Nagar by wrong side. He noted the number of one motorbike only and told the said number to the police in his statement but before he could see their faces, they fled away.
As PW10 resiled from his earlier statement, he was duly cross examined by Ld. Addl. PP for the State.
During his cross examination, he admitted that he had told the IO that date of occurrence was 11.07.2008. He further admitted that that the number of one of the motorbike noted down by him was DL 35AX 7616. He further admitted that the pillion riders on both the motorcycles were wearing helmets.
PW10 was duly cross examined by Ld. Counsels for the accused persons.
3.7 PW36 ASI Surender Kumar deposed that on 11.07.2008 he was posted as Head Constable at PS Defence Colony and on that day, he was on night emergency duty. After attending the call, he was going back to PS Defence Colony via under Andrews Ganj Flyover and at about 09.20 pm when he reached at red light of Andrews Ganj Flyover, he heard a noise "goli maar di goli maar di". He parked his scooter on the side of the road and went to the spot where public persons were found gathered. One person was found lying on the patri having bullet injuries on his belly. Thereafter, he asked public persons to help him in lifting the injured but nobody came forward. Then, one auto came. He stopped said auto and with the help of auto driver whose name was later on revealed as Rafiq, lifted the injured SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 26 of 60 FIR No. 217/2008 and took him to AIIMS hospital in the said auto. On the way to hospital, he informed senior officer regarding the incident. While he was admitting the injured in the emergency ward of AIIMS hospital, Inspector Mahender also reached there in the hospital. Doctor in the emergency declared the injured brought dead within 5-7 minutes of his admission. On checking the dead body, a purse was found in the back side pocket pocket of pant and on checking the same, a driving license was found inside the purse and name of deceased was mentioned as Sanjeev on the driving license. Dead body was sent to mortuary and Inspector Mahender left for the spot. He remained in the mortuary with dead body.
On 12.07.2008, relative of deceased reached in AIIMS hospital along with Inspector Mahender Singh and after identification of dead body vide memo Ex.PW3/A, post mortem of the deceased was conducted at about 12.07 am and after post mortem, dead body of the deceased was handed over to Dinesh Pasricha vide handing over memo Ex.PW1/B. Thereafter, doctor handed over three sealed parcels and one sample seal with the seal of AIIMS Hospital, containing clothes of deceased, blood in gauze and bullet and he handed over the same to the IO in the AIIMS Hospital and IO seized the same vide memo Ex.PW36/A. Thereafter, he came back to the police station with IO and the IO recorded his statement.
On 20.08.2008 he along with IO Inspector Mahender Singh and SI Arvind Sharma went to village Barahna, Sonipat, police station Sadar and local police were made to join investigation and thereafter they went to village Barhna where IO had shown some photographs to the local residents of village and asked them about their identity. One of the villager identified two persons after seeing the photographs and he revealed the SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 27 of 60 FIR No. 217/2008 name of those persons as Om Prakash @ Bunty, Rajesh @ Panni and told the IO that both aforesaid persons were relative of Narender and one Suresh @ Kala kept both Om Prakash @ Bunty and Rajesh @ Panni at his tube well where one room was built up. Thereafter, they searched the accused persons and accused Suresh @ Kala was apprehended from the agriculture field and IO arrested the accused Suresh @ Kala vide arrest memo Ex.PW36/B and conducted his personal search vide memo Ex.PW36/C. On 20.08.2008, he along with accused Suresh @ Kala and IO had gone near H. No. 24, Kalyan Nagar East, Dhand, Haryana for searching the other accused. They met the landlord from whom IO made inquiry and thereafter, they along with accused returned to Delhi and after his medical examination, he was put behind the lock up of PS Defence Colony.
On 22.08.2008 he along with IO had joined the investigation of the case and they visited PS Ambedkar Nagar where accused Zakir @ Nasir was in custody in another case. Inspector Mahender Singh interrogated and arrested him vide arrest memo Ex.PW36/D. Disclosure statement of said accused Ex.PW36/D was recorded and thereafter he was produced before concerned court at Patiala House in muffled face. IO moved an application before the Court for TIP and the said application was marked to link Court. Accused was produced for TIP but he refused to join the TIP proceedings. Thereafter, accused was produced before the concerned Court. IO moved an application for police custody remand which was allowed. Accused was taken to AIIMS for his medical examination. Thereafter, accused was brought to PS Defence Colony where he was put behind the lock up.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 28 of 60 FIR No. 217/2008 On 23.08.2008 he joined the investigation with Inspector Mahender Singh and on that day, accused Suresh @ Kala was in police custody. Thereafter, they along with accused reached at PS Sadar where they had taken the police force. Thereafter, they reached at village Barana where accused led them to agriculture field at tubewell for searching accused Rajesh @ Bunty but in vain. They also tried searching for the mobile phone at the instance of accused Suresh @ Kala but same could not be recovered nor his associates met them. Thereafter, they along with accused reached at house no. 24, Kalyan Nagar East, Dhand, Kaithal. Haryana and conducted raid for searching accused Bunty @ Rajesh but he was not fount there. IO made inquiry from the landlord Arvind Yadav. IO had shown the photographs of accused to him. Thereafter, they along with accused returned to PS Defence Colony and accused was put behind lock up.
On 20.09.2008 he joined the investigation with Inspector Mahender Singh and they went to Patiala House Court. IO moved an application for formal arrest of accused Israil @ Dhakad before the concerned court. The application was allowed and accused was formally arrested vide arrest memo Ex.PW36/F. Thereafter, accused was produced before the link MM for TIP.
On 25.09.2008 he again joined the investigation with Inspector Mahender Singh. Accused was interrogated and his disclosure statement Ex.PW36/G was recorded. Thereafter, accused led them at the spot where pointing out memo Ex.PW6/A was prepared.
On 26.09.2008 he joined the investigation with Inspector Mahender Singh and on that day, he along with IO and accused Israil @ Ajay went to village Ghadi Shahdar, sector 142, Noida, UP where they met Shripal SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 29 of 60 FIR No. 217/2008 Nagar in his gher and pointing out memo Ex.PW6/B was prepared at the instance of accused.
On 17.02.2009 he again joined the investigation with Inspector Mahender Singh and on that day accused Om Shiva @ Kalu was taken out from the lockup of PS Defence Colony. IO interrogated him and his disclosure statement Ex.PW36/H was recorded.
During his testimony, PW36 identified the accused Suresh @ Kala, Zakir, Israil @ Ajay Dhakad and Om Shiva in the court.
PW36 was duly cross examined by Ld. Counsels for the accused persons.
3.8 PW-43 Inspector Anil Kumar deposed that on 11.07.2008 he was posted as Sub Inspector at PS Defence Colony and he was on emergency duty from 08.00 pm to 08.0 am of the next day. At about 09.16 pm via DD No.38A Ex.PW11/C he received a call and thereafter he along with Ct. Nihal reached beneath the Andrews Ganj Flyover wherein he found one motorcycle and one scooter was lying (the number of motorcycle was DL 8SAD6719 and the number of scooter was DL2SL6198). He came to know from local inquiry that four boys after firing had snatched one motorcycle from its rider. Thereafter, the ATO/Inspector Mahinder and SHO arrived. The complainant Manvender was sent to the hospital by Inspector Mahender. He and Ct. Nihal were directed to stay at spot. Inspector Mahender returned from the hospital along with the complainant and Inspector Mahender recorded statement of complainant, prepared the tehrir and sent the rukka through Ct. Nihal to PS for registration of FIR. IO seized the scooter and one RC was found from its dicky and he seized the same vide seizure memo Ex.PW18/X1. Motorcycle was also seized vide SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 30 of 60 FIR No. 217/2008 seizure memo Ex.PW18/X2 and one empty cartridge was found near the scooter. Its sketch Ex.PW18/B was prepared and same was seized vide seizure memo Ex.PW8/X3. IO also prepared the site plan at the instance of complainant. He was sent for search of accused persons and the robbed motorcycle. Thereafter early in the morning, he went with the complainant to CRO for getting the portraits of the suspects. Then he returned to the police station and handed over the portraits to the IO. IO recorded his statement.
PW43 was duly cross examined by Ld. Counsels for accused persons.
3.9 PW-3 Shripal deposed that in the year 2008 he resided at Noida, UP and was working as mali (gardener) at MCD School, Lajpat Nagar II. In the rainy season in 2008, accused Ajay had come to their house and he talked to his wife and had taken two rooms of their house on rent. At that time, his wife had put a condition to said accused to live as a tenant only with his family and he agreed to the said condition of his wife. When PW3 reached back home after his work, his wife informed him and accordingly the rooms were let out to said accused at a monthly rent of Rs. 1500/-. On being asked by his wife, accused Ajay Bidhuri told her that he was working with some Finance Company and his nature of work was to lift the vehicles for which EMIs could not be completed by the customers. Said accused had two pulsar motorcycles which he used to park inside their tenanted portion, however, during rainy season, they used to park the motorcycles in the courtyard (gher) of the house. One day prior to Ganga Sanan, they had hired one Qualis from Satbir of their village in the morning for the purpose of taking it to Brij Ghat. The said Qualis vehicle was being SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 31 of 60 FIR No. 217/2008 driven by the driver of Satbir and at that time one motorcycle was parked in their courtyard and the other one was parked near the Bhatta. On the day of ganga sanan at about 04.00 am, some of the police officials from Crime Branch reached his house and awakened him and made inquiries about the accused. He told them that accused was residing as a tenant in their house and they conducted search of the rooms of accused Ajay and seized both the motorcycles vide seizure memo Ex.PW3/A. IO also seized the mud/soil which was wrapped on the wheel of the motorcycles, kept in bottles, sealed and seized the same through seizure memo Ex.PW3/B. He do not remember the registration number of both the motorcycles. Police recorded his statement in this regard. He stated that he cannot identify any other accused person except accused Ajay Bidhuri.
As the witness resiled from his earlier given statement, he was cross examined by Ld. Addl. PP qua the registration number of the motorcycles.
During his cross examination, he admitted that one of the motorcycle was of red colour and the other one was of black colour and registration number of the red motorcycle was DL 3SAX7616 and registration number of black motorcycle was DL 3SAX 8464. He further admitted that the said proceedings were conducted by the police on 20.07.2008.
During PW3's testimony, he identified accused Israil @ Ajay in the court.
PW3 was duly cross examined by Ld. Amicus Curiae for the accused persons.
3.10 PW-19 Inspector Anil Kumar deposed that on 16.07.2008 he was posted as Inspector Investigation at PS Sangam Vihar and on that day, he examined and recorded the statement of one Ms. Guddan w/o Israel in case SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 32 of 60 FIR No. 217/2008 FIR No. 364/2008, u/s 302 IPC, PS Sangam Vihar. In her statement, Ms. Guddan had told the whereabouts of the accused persons of the present case and also about the place where they had stayed as tenant i.e. the house of Sh. Sripal, Village Gadhi, Shadhara, Noida. Guddan also told that the motorcycles used in committing the present offence were parked in the yard (gher) of the Sripal. She also told that the accused persons can come back to the said place and if raid is conducted, they can be apprehended. On 17.06.2008 (clarified as 17.07.2008 in cross) they deployed the police staff around the said gher but the accused persons did not turn up till 20.06.2008 (clarified as 20.07.2008 in cross). Thereafter, the higher police officials organized a team under the supervision of Sh. K. S. Bhatnagar. The team reached at the Gher where two pulsar motorcycles bearing registration no. DL3SAX 8464 black colour and DL 3SAX7616 red colour were found parked there. The IO called up the photographer and the crime team to the spot. The photographer clicked the photographs of the motorcycle and the crime team lifted the finger prints. Thereafter, both the motorcycles were taken into possession vide seizure memo Ex.PW3/A. The IO collected the mud/dust from the tyres of the motorcycle by scratching the same and also collected the earth sample of the place where the motorcycles were parked, sealed with the seal of MS and took into possession vide seizure memo Ex.PW3/B. Thereafter, they reached at the house of Sripal wherefrom two empty cartons of reliance mobile phone, one sim card wrapper of Reliance and two sim card recharge coupon wrapper, five key bunch and 8 single keys, about 18 guthli (seeds) of cherry which the accused persons had consumed, one Rapidix English Speaking course book, one copy on which something was written in English, one SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 33 of 60 FIR No. 217/2008 novel like book and one original RC of motorcycle bearing no. UP16H 0787 along with pollution certificate were found. The IO prepared the pullanda of the above mentioned articles, sealed the same with the seal of MS and same were taken into police possession vide seizure memo Ex.PW8/PB1, Ex.PW8/PB2, Ex.PW8/PB3 and Ex.PW8/PB4. IO recorded his statement to this effect.
PW19 identified the case properties i.e. motorcycle bearing no. DL3SAX8464 and DL3SAX7616 through photographs Ex.PW19/A1, A2, B1 and B2.
PW19 was duly cross examined by Ld. Counsel for the accused persons.
3.11 PW-27 Retired SI Girjesh Singh deposed that on 25.08.2008 he was posted as SI in PS Badarpur and on that day he received the information of an encounter at house no.H-211/97, Saurabh Vihar, Badarpur. He reached at the spot along with the then SHO and other police staff where Inspector Subhash Chand Kaushik met them and informed them that two accused namely Om Prakash @ Bunty and Rajesh @ Panni had received injuries in an encounter and some police officials also received injuries in the above said encounter. The said injured accused persons had already been sent to JP Apex Trauma Centre prior to their arrival and injured police officials were also sent to the said hospital. He went inside the room where the encounter had taken place and saw that blood and blood stains were lying in the room and three pistols, four kattas, three knives, 22 live cartridges and 13 fired/used cartridges were found at the spot. One motorcycle of HR number was also found at the spot. However, he do not remember the complete number of said motorcycle. Two black colour bags were also SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 34 of 60 FIR No. 217/2008 found at the spot. After leaving the staff at the spot, he went to JP Apex Trauma Centre and collected the MLC of the above said police officials as well as above mentioned both accused. On the MLC of above said both accused namely Om Prakash @ Bunty and Rajesh, both were declared brought dead by the doctors. After collecting the above said MLCs, he came back to the spot and recorded the statements of Inspector Suresh Chand Kaushik. The above said articles found at the spot were seized by him. He got the case registered on the statement of Inspector Suresh Chand Kaushik via FIR no. 416/2008, u/s 186/332/353/307/34 IPC along with section 25/27/54/49 Arms Act at PS Badarpur.
He got preserved the dead body of the above said both accused. He also recorded the statement of police officials in case FIR No.416/2008 and case property of that case was deposited in the malkhana.
He was interrogated by the IO of this case. His statement was recorded by the IO and he handed over the photographs of PM report of the above said both accused to the IO.
PW27 was cross examined nil by Ld. Amicus Curiae for accused persons.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence, all accused were questioned u/s 313 CrPC regarding incriminating circumstances appearing against them. They stated that they are innocent and have been falsely implicated in the present case.
4.2 Accused Zakir @ Nasir stated that he refused to participate in TIP since he had been shown to the witnesses in the police station and his photographs were also shown to the witnesses. Accused stated that he do SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 35 of 60 FIR No. 217/2008 not know why witnesses have deposed against him but he was implicated in one rape case in FIR No.202/2008 and thereafter he was implicated in the present case but he had been acquitted in the said rape case. Accused further stated that he was arrested from Hardoi on 24.07.2008 along with Karuna. Inspector Anil Kumar was the SHO in PS Sangam Vihar and the present case was assigned to him. Said SHO was searching him due to aforesaid rape but he was not present in Delhi. Accused was brought from Hardoi after five months along with Karuna who is PW18 in case FIR No.364/2008, PS Sangam Vihar. Then, he was sent to jail but Karuna was discharged by the police. On 03.03.2008 he left along with Karuna and had been to various places like Mauraina, Madhya Pradesh, Noida and finally after five months, he along with Karuna was arrested from village Mohammadpur village, Hardoi and brought to Delhi.
4.3 Accused Kalu @ Om Shiva stated that he has been falsely implicated in the present case. Accused stated that he had a fight with 15- 16 boys and police took the side of said boys and he was implicated in that case. After said case, police officials had ill-will towards towards him and he had been implicated in the present case due to such ill-will. The witnesses had identified him at the instance of police as his photographs were published in newspapers and shown in electronic media. 4.4 Accused Suresh @ Kala stated that he do not know Bunti or Rajesh and he had never taken any room on rent for them. Accused stated that he had been implicated in the present case at the instance of Narender, who was the brother of the sarpanch of their village.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 36 of 60 FIR No. 217/2008 4.5 Accused Israil @ Ajay stated that he had nothing to do with the alleged offence and has been falsely implicated by the Investigating Agency.
5. DEFENCE EVIDENCE 5.1 Accused Zakir @ Nasir filed certified copy of the judgment dated 03.03.2010 passed by Ld. ASJ Ms. Pinki in FIR No. 202/2008, PS Sangam Vihar, u/s 365/376/366/368 IPC as Ex.DX1. Other accused persons chose not to lead any defence evidence.
6. ARGUMENTS 6.1 Thereafter, arguments of both parties were heard. Ld. Addl. PP for State has submitted that eye witness has deposed against the accused persons Zakir, Israil and Om Shiva regarding the robbery of his motorcycle and shooting of the scooterist and has identified them during his testimony. Further, a firearm was recovered at the spot where the other two accused (since deceased) were encountered by the police and the Ballistic expert had opined that cartridge/bullet recovered in present case had been discharged from the same firearm. Further, the robbed motorcycle has been recovered from the rented premises of accused Israil. Even the other motorcycle on which the robbers arrived at spot was recovered from said premises. As far as accused Suresh @ Kala is concerned, PW15 Arvind Kumar has deposed that said accused along with two other persons took the room of his uncle on rent and thereafter the deceased accused Bunty and Rajesh resided in the said room and that he used to arrange the meals for them. Accordingly, all the alleged offences have been duly proved against all the accused persons.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 37 of 60 FIR No. 217/2008 6.2 On the other hand, Ld. Counsel for accused has submitted that there are serious infirmities in the testimony of alleged eye witness Manvender. Rather, said witness has to be led by the Ld. Addl. PP to even identify all the accused. The witness has even referred to a different spot of incident than the one referred by the prosecution. Moreover, his testimony is not in sync with the other witnesses of the same facts. There is ambiguity even regarding total number of persons involved in the incident. Further, there is no physical evidence to link any of the accused to the alleged offence as no chance prints of any accused were found on the motorcycle/scooter found at the spot and the motorcycles recovered from the premises of Shripal. Even the alleged murder weapon was not recovered at the instance of any of the accused standing the trial. In regard to the accused Suresh @ Kala, it is submitted that the main witness regarding the harbouring i.e. PW Nazira has not supported the case of prosecution. It is submitted that PW Arvind Kumar has deposed that he identified the persons harboured by accused Suresh @ Kala by photographs shown by the police. However, no such photographs which were so identified were produced during the trial. Ld. Counsel for accused Zakir has argued that he has been acquitted in the main case of FIR No.202/2008 of PS Sangam Vihar wherein rape allegations were made against him but the prosecutrix did not support the case of prosecution at all. It is submitted that the accused Zakir has been implicated in the present case only because of the said case and there is no concrete evidence against him. It is submitted that the testimony of main eye witness is not credible and is not in sync with the circumstantial facts and other prosecution witnesses. Accordingly, the Ld. Counsels for all the accused have submitted that all the accused are entitled to be acquitted.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 38 of 60 FIR No. 217/2008
7. POINTS FOR DETERMINATION 7.1 The relevant legal provisions applicable in the present case are reproduced herewith:
Section 396 IPC provides "If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or imprisonment for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.".
Section 307 IPC provides "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.."
Section 302 IPC provides "Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine."
Section 34 IPC provides "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Section 52-A provides "Harbour".--Except in section 157, and in section 130 in the case in which the harbour is given by the wife or husband of the person harboured, the word "harbour" includes the supplying a person with shelter, food, drink, money, clothes, arms, ammuni- tion or means or conveyance, or the assisting a person by any means, whether of the same kind as those enumerated in this section or not, to evade apprehension.
Section 212 IPC provides that whenever an offence has been committed, whoever harbours or conceals a person whom he knows or has reason to believe to be the offender, with the intention of screening him from legal punishment, such person shall be punished. Section 212 IPC further provides graded punishment for such person corresponding to the gravity of the offence of the offender.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 39 of 60 FIR No. 217/2008 7.2 From the facts of the case, arguments of the parties and relevant provisions of law, the following points for determination arise:-
1. Whether the testimony of the star witness PW18 Manvender is credible?
2. Whether the circumstantial evidence supports the case of prosecution?
3. Whether there is sufficient evidence regarding harbouring of accused Rajesh @ Panni and Om Prakash @ Banti by the accused Suresh @ Kala?
4. Whether the accused persons are liable to be convicted for the alleged offences?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The star witness of the case is PW18 Manvender. However, there are certain serious inconsistencies in his testimony. Same are discussed in succeedings paras:
8.1(a) Discrepancy regarding the place of occurrence In his complaint Ex.PW18/A, PW18 has stated that the place of incident was at the red light at Andrews Ganj Flyover. Even the case of prosecution is the same and the site plan of the said spot has been filed along with chargesheet. However, in his testimony PW18 has deposed that the place of incident was at the red light of Mool Chand Flyover. Both the said locations are at a distance of about 800 meters and are distinct locations/flyovers on Ring Road, Delhi. Hence, the discrepancy about the spot itself by the eye witness puts the court on caution from the word go.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 40 of 60 FIR No. 217/2008 8.1(b) Manner of arrival of robbers In his complaint Ex.PW18/A, PW18 has stated that two motorcycles stopped behind him and four boys got off from said two motorcycles and two boys came and stood on his left side and other two boys came and stood on his right side. Thereafter, he has narrated the acts of said boys in his complaint. Thus, he has mentioned about simultaneous arrival of all four boys. However, in his testimony, he has deposed that two persons came on their motorcycle and demanded keys of his motorcycle. He refused to hand over the keys and one of them was carrying gun with which he hit on his head causing severe hurt. In the meanwhile, two more boys came on their motorcycle and after parking their motorcycle by the side, they caught hold of him from his left side. Thus, in his testimony, he has mentioned the arrival of accused persons on two motorcycles one by one. 8.1(c) Serious inconsistencies regarding eye witness being fired upon More importantly, in his complaint Ex.PW18/A, he has mentioned that when he shouted for help, one of the boys standing to his right and who was without helmet fired upon him but he escaped. However, surprisingly in his examination in chief, he has deposed that after he was hit by the accused persons with the butt of pistol he handed over the key of his motorcycle to them and went to traffic police booth and narrated the incident to traffic police officer who accompanied him to the spot. Thus, the witness has not deposed anything in his examination in chief about being fired upon by any of the accused. Said fact is too material to be ignored. If a person is fired upon by a gun he will not forget the incident for his entire life and even after number of years he will not omit such fact while narrating the incident. Though in his cross examination by Ld. Addl.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 41 of 60 FIR No. 217/2008 PP for State, he has admitted the suggestion that he has told the police that he was fired upon by the robbers but he was saved, however, the omission of such fact in examination in chief is too material to be ignored.
Here, it is also to be noted that in the complaint/FIR there is categorical assertion about two gun shots i.e. one on complainant and one on the scooterist. However, only one fired cartridge was recovered from the spot. Moreover, no other witness has deposed that they heard two gun shots.
8.1(d) Serious inconsistencies regarding witnessing the shooting of scooterist In his complaint Ex.PW18/A, the complainant has mentioned that one scooterist standing to his right side tried to help him but the clean shaven boy aged 24/25 years standing on his right side exhorted the bearded boy who had hit him with butt of pistol to fire upon the scooterist and thereupon said bearded boy shot the said scooterist and he fell down. Thus, there is pictorial representation of the shooting of the scooterist in the complaint/FIR. However, in his examination in chief, he has deposed that on being hit by the accused persons with the pistol butt, he handed over the motorcycle keys to them. He went to Traffic Police Booth and narrated the incident to Traffic Police officer who accompanied him back to the spot. He has specifically deposed that by the time they (PW18 and traffic police officer) were going to the spot and they were behind a bus, he heard gun fire. By the time, they reached the spot, said persons had already fled away. Thus, in his entire examination in chief, he has not deposed that he saw the scooterist being shot. Thus, there is stark difference regarding the events witnessed by the eye witness as per his complaint and as per his testimony.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 42 of 60 FIR No. 217/2008 Though, in his cross examination by prosecution he has admitted that he had told the police that one scooterist tried to save him and one of the robbers shot at the scooterist, however, considering the specific facts stated in his examination in chief such admission appears to be of a person who merely nodded to suggestions of Ld.Addl. PP without deposing the facts himself. Rather, in his examination in chief he has even deposed that they (he and Traffic Police Official) found one scooterist lying on the road. Initially, they did not notice any blood but later on they found that said scooterist was shot at. Thus, there is categorical statement in examination in chief of PW18 that he only heard gun shot and later on he came to know about scooterist being shot.
8.1(e) Inconsistency regarding the manner in which robbers left the spot PW18 has also deposed that the firing was done by two persons who were not wearing helmets and they suddenly turned right towards Moolchand area and fled away. However, the eye witness regarding the escape of the robbers i.e. PW10 Pawan Khanduja has deposed that he heard the sound of gun shot and when he turned around, he saw four persons on two motorcycles going towards Lajpat Nagar by wrong side.
Since the traffic on the Ring Road is one way on the either sides, therefore, the witness PW10 has implied that the robbers escaped towards Lajpat Nagar on the opposite way of the traffic i.e. the wrong side. However, since PW18 has deposed that the robbers suddenly turned right towards Mool Chand area and fled away, he has implied that the robbers took a right turn towards Mool Chand along the direction of traffic and not the direction opposite to the traffic i.e. wrong side.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 43 of 60 FIR No. 217/2008 8.1(f) Inconsistency regarding the reporting of incident to the Traffic Police Officer PW2 HC Viju was the constable on duty at the traffic point under the Andrews Ganj Flyover at the relevant time. He has deposed that at about 09.00/09.15 pm when he was changing his uniform in the traffic booth, he heard a gun shot and reached the spot where crowd had gathered and one person was lying on the road. He deposed that gathered public persons informed him that four boys had ran away after snatching a motorcycle and causing gun shot injury. In his entire examination, he has not deposed about PW18 Manvender approaching him and reporting the incident of snatching of bike from him or about both of them reaching the spot together. Rather, he has not uttered a single word about the presence of PW18 Manvender. As mentioned earlier, PW18 has categorically deposed that he went to Traffic Police Booth and narrated the incident to Traffic Police Officer and they both went to the spot. Thus, omission of PW2 to even mention the presence of PW18 is too material to be ignored. 8.1(g) Omission regarding the presence of eye witness by the police official who reached the spot immediately after incident PW36 ASI Surender Kumar has deposed that when he was passing near the spot at around 09.20 pm he heard the noise that somebody had been shot. He parked his scooter and found one person lying on the patri with bullet injuries. However, in his entire narration about the situation at the spot, he has not uttered a single word regarding the presence of PW18 Manvender at the spot. Rather, he has deposed that he asked public persons to help to lift the injured but nobody came forward. As per PW6 he stopped an auto and with the help of auto driver he lifted the injured and SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 44 of 60 FIR No. 217/2008 took him to AIIMS in said auto. Said statement is totally contrary to the claim of PW18 who has deposed in his cross examination that he had held one hand of the scooterist when he was being shifted in the TSR for being taken to the hospital. Hence, it is difficult to reconcile the assertions of either of these witnesses.
8.1(h) Inconsistency regarding the manner of identification of accused persons.
Even otherwise, there are doubts regarding the manner in which PW18 has identified the accused persons during his testimony. Firstly, during his examination in chief, he identified only two accused i.e. accused Om Shiva and Israil. Secondly, in his examination in chief, he identified them as the persons who had assaulted him on 11.07.2008 but did not specify the individual roles of each of said accused in the incident. Thirdly, he deposed in his examination in chief that he do not presently remember the faces of other two assailants.
Proceeding further, in his cross examination by Ld. Addl. PP for State, the issue regarding the identification of the accused persons got further mixed up. Firstly, he identified the accused Zakir at the pointing out of Ld. Addl. PP and admitted his role as the person who snatched the keys of his motorcycle. However, once he has deposed in his examination in chief that he do not remember the faces of other two assailants such identification is questionable. Secondly, he identified accused Om Shiva at the pointing out of Ld. Addl. PP as the person who was standing on his motorcycle on the spot at the time of incident. However, still no further/specific role of said accused has been mentioned even in his cross examination. Moreover as per the complaint Ex.PW18/A all four persons SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 45 of 60 FIR No. 217/2008 had got off their motorcycles and two of them stood on one side of the complainant and two on the other. There is no mention of any robber who kept standing on his motorcycle. Thirdly, in his cross examination by Ld. Addl. PP for State, he admitted that accused Israil is the same person who had shot at the scooterist in his presence. However, said statement is not in consonance with his examination in chief wherein he has deposed that he had gone to call the traffic police and on his return he heard the gun shot and by the time they reached the spot, the robbers had fled away i.e. in his examination in chief, he has not deposed as an eye witness to the shooting of the scooterist.
8.1(i) Inconsistency regarding the number of persons involved in the incident After identifying accused Israil, Zakir and Om Shiva in his cross examination by prosecution, PW18 has even claimed that he can identify remaining two assailants but Ld. Addl. PP submitted that the other assailants Bunty and Rajesh had been killed in an encounter. It is to be noted that said claim runs counter to the entire FIR/initial complaint where it is categorical case of complainant that there were four persons on two motorcycles. If the identification claim of PW18 is to be believed then it makes the total persons involved in the incident as five persons. Even otherwise, PW18 has not mentioned the role of five persons in his entire testimony also. As mentioned earlier, even the witness who saw the robbers escaping i.e. PW10 has deposed categorically that there were four persons escaping from the spot on two motorcycles when he noted down the motorcycle number of one of the motorcycles.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 46 of 60 FIR No. 217/2008 8.1(j) Inconsistency regarding the description of the person who fired on the scooterist and the description of accused so identified It is to be noted that in the complaint/FIR the complainant stated that one boy out of the robbers who was 25/26 years old with strong built, dark complexion and height around 5 feet 5 inch asked him to take out the key of the bike and leave the motorcycle. Thereupon said boy who was supporting beard took out pistol and hit him on his head and thereafter on his shoulder also. He has further mentioned in his complaint that when the scooterist on his right side tried to help him the boy standing on his right exhorted the above said bearded boy to shoot the scooterist and said bearded boy fired on the scooterist. Thus, it is clear from the version mentioned in the complaint/FIR that the boy who was aged 25-26 years with height 5 feet 5 inch and dark complexion shot the scooterist. As per the conviction slips of the accused persons, the accused Israil was aged 30 years and had height of 5 feet 9 inch with fair complexion and medium built, the accused Zakir was aged 27 years with height 5 feet 4 inch with wheatish complexion, and the accused Om Shiva @ Kalu was aged 25 years with height of 5 feet 6 inch, of black complexion and strong built. In his testimony, PW18 has identified the accused Israil as the person who shot the scooterist in his presence. However, the height/age and the complexion of the said accused do not match with the description of the person mentioned in the FIR who shot the scooterist. Though description of an offender is given by approximation by an eye witness but considering the other defects in testimony of PW18 said discrepancy also assumes significance.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 47 of 60 FIR No. 217/2008 8.1(k)Deficiency in the testimony of eye witness regarding incidental facts It may also be noted that PW18 has deposed in his cross examination by the defence that on 25.09.2008 he had specifically described role of each accused to the police and on that day all the accused persons were present in the police station Defence Colony where they were shown to him and he pointed out role of each accused. However, it is to be noted that till 25.09.2008 all the accused of the case were not even arrested as the accused Om Shiva @ Kalu was arrested subsequently by the special cell.
It may also be noted that PW18 has deposed that he was hit with the butt of the pistol on his head causing severe hurt. However, in his MLC Ex.PW39/B, it is only mentioned that the patient had painful shoulder movement and he was advised X Ray of shoulder. There is no mention of any head injury, external or internal or any pain in the head region of the patient.
Further, during his examination in chief, he deposed that on the next day of the incident, he went to police head quarters to see the sketches of the assailants but for some reason the work there could not be done so he returned with one of the police official. However, during his cross examination by Ld. Additional PP, he admitted that he accompanied SI Anil to CRO where sketches of the accused were got prepared by him. Firstly, in case the sketches of the accused were got prepared at his instance, the said process is a detailed process and thus, PW18 ought to have stated about the same in his examination in chief itself. Secondly, the changing stands of the eye witness in his examination in chief and thereafter his cross examination by Ld. Additional PP regarding the material facts as well as the aforesaid SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 48 of 60 FIR No. 217/2008 fact further discredit his credibility. Thus, the testimony of the eye witness is not credible even regarding the incidental facts in addition to the principal facts.
8.2 In Shahaja @ Shahajan Ismail Mohd. v. State of Maharastra, Criminal Appeal No. 739/2017 date of decision 14.07.2022 Hon'ble Supreme Court of India has held:
"27. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 49 of 60 FIR No. 217/2008 III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 50 of 60 FIR No. 217/2008 IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him. XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 51 of 60 FIR No. 217/2008 [See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]".
The star witness of the case has fumbled upon the material facts of the case as well as the role of each accused and even the identification of the accused persons. Even after leaving scope for element of surprise, lapse of time or confusion in regard to minor facts, the deficiencies in the testimony of eye witness are not ordinary deficiencies. Rather some of the deficiencies are too material and rather incompatible with the case set up in the FIR itself. From the overall evidence of the eye witness, the Court has reason to believe that probably there was a snatching of motorcycle from the eye witness PW18 near Moolchand flyover and thereafter there was a subsequent event of firing at the scooterist at Andrews Ganj Flyover. However, PW18 probably witnessed only the snatching part but the police planted him as a witness for the murder case also and for said reason, the eye witness has fumbled upon the material facts of the case. Nonetheless, in nutshell, the star witness of the case cannot be termed as a reliable witness.
8.3 Let us proceed further to analyze whether there is any physical/circumstantial evidence against the main accused Zakir, Om Shiva and Israil. As far as the forensic examination of the motorcycle and the scooter found at the spot is concerned, PW37 Naresh Kumar has deposed that chance prints were lifted from the said spot. However, as per the report of chance prints Ex.PW37/A, the same could not be matched with the specimen prints of the accused Om Prakash @ Banti, Nasir @ Zakir, Rajesh @ Panni and Israil. Likewise, the motorcycle robbed in the present SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 52 of 60 FIR No. 217/2008 case was stated to be recovered from the premises of one Shripal and as per testimony of PW24 SI Sanjay Kumar chance prints were lifted from said motorcycle. However, there is no evidence that such chance prints were matched with any of the accused. The only other evidence allegedly linking the accused to the crime scene is the weapon of offence. Prosecution has led evidence through the Ballistic Expert PW44 V. R. Anand that the empty cartridge recovered in the present case was compared with the pistol recovered in the case FIR No. 416/2008, PS Badarpur. As per Ld. Addl. PP for State, said pistol was recovered at the site of encounter of the deceased accused Rajesh @ Panni and Om Prakash @ Banti. Ld. Addl. PP has argued that since all accused together operated as a gang, recovery from one gang member is relatable to the other gang members. I have considered the said argument. It is to be noted that though said two accused had passed away during the investigation but prosecution never fully attempted to prove the role of said accused in the incident through the eye witness. It is evident from the chargesheet that the photographs of said deceased accused were available with the IO but such photographs were never put to the eye witness to prove that in fact said two accused were also present at the spot and they also participated in the offence of dacoity/murder. There was only a claim of the eye witness in his cross examination by prosecution that he can identify the two other accused but as mentioned earlier even the number of persons involved in the incident being five is seriously questionable. Thus, the only evidence against the said deceased accused is disclosure statements of the accused facing the trial. Moreover, no witness regarding the encounter has been examined to prove that said weapon was in fact in possession of either of the deceased SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 53 of 60 FIR No. 217/2008 accused or was used by them during the encounter. The only witness examined by the prosecution in regard to recovery of said weapon is PW27 Retired SI Brijesh Singh. He has deposed about his visit to the spot of encounter after the encounter and the recovery of three pistols, four country made pistols, three knives, 22 live cartridges and 13 used cartridges from the said spot. However, prosecution has not even proved any seizure memo regarding the particular weapon which was later on examined by the Ballistic Expert as aforementioned. No prosecution witness has even identified/exhibited the particular fire arm which was allegedly recovered from the site of encounter of said deceased accused and which was allegedly used to commit the murder in present case. Thus, the connection between the weapon of offence and the accused standing trial is too remote and even the same has not been duly proved. Hence, the prosecution has failed to link the said pistol to any of the accused standing the trial. 8.4 As far as the recovery of robbed motorcycle is concerned, the prosecution has tried to prove that same was recovered from a premises which was taken on rent by accused Israil along with other accused. However, there is no documentary proof regarding the alleged tenancy. Secondly, no finger prints could be lifted from the said premises so as to link the presence of accused therein. Thirdly, as mentioned earlier, no finger prints on the alleged motorcycle was linked to any of the accused. Fourthly, as per the items seized from the said premises, the police seized various SIM card covers and mobile phone boxes but it has not been proved by any CDR or any subsequent recovery that any of such SIM/phone was used by any of the accused. Fifthly, it is also mentioned that a bunch of keys were recovered from the premises but it is nowhere SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 54 of 60 FIR No. 217/2008 stated that said keys included the key of the recovered/robbed motorcycle also. Sixthly, the police seized the seeds of cherry purportedly for examining the same for the saliva of the accused persons however there is no report regarding such examination, if any. Thus, the only evidence linking the accused to the alleged motorcycle is the oral testimony of witnesses to the effect that accused resided at the premises from/near which the robbed motorcycle was recovered and that the landlord/local persons saw them using/possessing such motorcycle. Let us proceed further to examine the testimony of witnesses regarding the residence of accused at the given premises and the recovery of the robbed motorcycle from there. 8.5 As mentioned earlier most of the witnesses regarding the residence of the accused persons at village Garhi, Sehdara, Noida and the recovery of the motorcycle therefrom have turned hostile to the case of prosecution. The only witness who has duly supported the case of prosecution in this regard is PW3 Shripal Nagar. However, he has not deposed against all the accused being residents of his premises. He has only identified the accused Ajay (Ajay @ Israil) as the person who had taken two rooms on rent at his premises. However, apparently his testimony is hearsay as he has deposed that said accused talked to his wife and she let out two rooms to him on rent and when PW3 returned after work his wife informed him accordingly. In regard to the motorcycles, he has deposed that said accused had two pulsar motorcycles which he used to park in the tenanted premises. However, he has not deposed about the registration number of said motorcycles and a leading question has been put to him wherein he admitted registration numbers as stated by Ld. Addl. PP for State. Further, he has deposed that one motorcycle was parked in his courtyard and the SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 55 of 60 FIR No. 217/2008 other was parked near the bhatta when the police officers reached at his house and made query about the accused. However, during his cross examination, he has also deposed that people used to park the vehicles in his courtyard. Thus, he has implied that said parking was not exclusive for his alleged tenant. Further, PW8 Ravinder who was son of PW3 Shripal has partly supported the version of PW3. He has deposed that his mother had let out two rooms to a person named Ajay Bidhuri and he resided there for about 12-13 days only. However, throughout his testimony, he neither identified accused Israil @ Ajay nor any other accused being the tenant/resident in their premises. Further, he deposed that police did not seize anything in his presence. Moreover, he stated that he cannot identify the two recovered motorcycles. In his cross examination by Ld. Addl. PP for State, he has deposed that one pulsar motorcycle of red colour was parked at their courtyard and one motorcycle of black colour make pulsar was kept in the fields. The photographs (Ex.PW28/P2 collectively) regarding the said two motorcycles show that black colour motorcycle is having the registration no. DL3SAX 8464 i.e. the motorcycle allegedly robbed in the incident in question. During his cross examination by the Defence Counsel, he has further deposed that the fields from where the second motorcycle was recovered was at a distance of 2 km from the courtyard. Thus, PW8 has mentioned about the recovery of the motorcycle not from the premises or from a spot near the premises. Considering the facts that all other witnesses regarding the connection of the accused persons with the premises in question and the motorcycle recovered therefrom have turned hostile, the testimony of PW3 is on a weak footing. Even otherwise, the recovery of the robbed motorcycle in itself is not SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 56 of 60 FIR No. 217/2008 sufficient proof to show that accused Israil @ Ajay had committed the robbery/murder. Said piece of evidence could have been a corroborative piece of evidence to support the testimony of eye witness. However, as mentioned earlier, the testimony of eye witness itself suffers from various defects.
8.6 The other circumstantial evidence to link the accused persons to the offence of robbery/murder is the alleged recovery of the second motorcycle from the premises of Shripal. As per PW19, the said motorcycle was DL3SAX7616 make Pulsar. Ld. Addl. PP has submitted that said motorcycle was used by the accused persons to arrive at the spot and to escape after the robbery/murder. It is to be noted that eye witness PW18 has not referred to the registration number of the said motorcycle in his entire examination and has only referred to the second motorcycle make CBZ which was left by the robbers at the spot. The only reference to such motorcycle was made by PW10. However, he has not deposed about said motorcycle in his examination in chief. During his cross examination by Ld. Addl. PP for State, he admitted that he noted down the number of one of the motorcycle as DL35AX 7616. However, there is difference of one digit as the recovered motorcycle was DL3SAX7616. Moreover the witness PW10 has not even given the description of the colour or the make of the motorcycle also. As mentioned above even the recovery of the motorcycles is not connected to any accused except accused Israil @ Ajay and as pointed above even the facts of such recovery have not been proved beyond reasonable doubts.
8.7 As far as the Suresh @ Kala is concerned, he is charged only for the offence u/s 52A read with 212 IPC. As per the case of prosecution, he had SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 57 of 60 FIR No. 217/2008 harboured the accused Om Prakash @ Banti and Rajesh @ Panni to screen them from legal punishment. The prosecution has examined two witnesses in this regard i.e. PW15 Arvind and PW16 Nazira. However, PW16 Nazira has turned hostile and had not supported the case of prosecution at all. PW15 Arvind Kumar deposed that on 04.08.2008 three men came to take the house of his uncle on rent and they told their names as Sanjay, Raju and Kala. After settling the rent, they paid advance of Rs.300/- and they returned with two more persons whose names were told as Banti and Rajesh. PW15 has deposed that said Banti and Rajesh started residing there and out of the remaining three persons, one person used to come with different articles for Banti and Rajesh. He deposed that perhaps the accused Om Shiva @ Kalu is the person who introduced himself as Kala and perhaps the other person is Sanjay and he pointed out towards accused Suresh @ Kala. Thus, he did not identify the accused Suresh @ Kala with certainty during his examination in chief. During his cross examination by prosecution, he admitted that Suresh @ Kala is the same person who used to arrange meals for Banti and Rajesh. However, considering the vagueness in the identification of the accused in his examination in chief, said identification is not substantial enough. It is to be noted that no rent agreement was executed. Thus, in the absence of any other evidence, it is only the oral testimony of PW15 regarding the harbouring of the said accused by the accused Suresh @ Kala. However, two important things are to be noted here. Firstly, PW15 has deposed that he identified said Banti and Rajesh from their photographs shown by the police. Since said accused had passed away in the police encounter, they could not have been identified by the witness during the trial. However, even the photographs SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 58 of 60 FIR No. 217/2008 of the said accused were not shown to PW15 during his testimony by the prosecution so as to confirm that the same persons resided at the residence of his uncle. Thus, prosecution has not fully proved the fact that it was deceased Rajesh and Banti and not any other Rajesh and Banti or any third person assuming such name resided at his uncle's house. Secondly and more importantly, the offence u/s 212 IPC provides that the person harbouring or concealing the offender has knowledge or reason to believe that the person being harboured or concealed is an offender. However, there is no evidence to the effect that accused Suresh @ Kala had the knowledge that the accused Rajesh and Banti were wanted criminals. There is no evidence that he had reason to believe that accused Rajesh and Banti were wanted criminals. Had it been the case that the offence was committed in the same locality where the accused Suresh @ Kala was residing and was within the knowledge of the whole public in the locality or the police had made inquiries from him regarding the accused Rajesh and Banti mentioning that they are wanted in the present case/other cases and thereafter if he would have harboured said persons, then in such situation, the knowledge or reason to believe could have been attributed to the accused Suresh @ Kala. Further, there is no evidence even to show that accused Banti and Rajesh took the room on rent under such circumstances that their conduct was highly suspicious and smelled as that of a fugitive, for example if they were not venturing out at all from the premises or were repeatedly asking about police searching for them etc. PW15 has only stated that said persons used to stay at home most of the times and never went out but they used to go to the restaurant for meals as they did not cook at home. However, such conduct in itself is not sufficient to say that SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 59 of 60 FIR No. 217/2008 anyone would have a reason to believe from such conduct that such persons were wanted criminals. Thus, the prosecution has failed to prove the essential ingredient of the offence u/s 212 IPC against the accused Suresh @ Kala.
9. CONCLUSION 9.1 Thus, in view of the above said discussion, all four accused Zakir @ Nasir, Om Shiva @ Kala, Israil @ Ajay and Suresh @ Kala are acquitted of all the offences charged against them.
(Announced in the Open Court on Digitally signed by
09th October, 2023) SACHIN SACHIN SANGWAN
SANGWAN Date: 2023.10.09
17:39:02 +0530
(Sachin Sangwan)
Additional Sessions Judge (FTC-01): South East:
Saket District Court: New Delhi.
SC No. 1669/2016 State v. Zakir @ Nasir & Ors. Pages 60 of 60 FIR No. 217/2008