Delhi District Court
State vs Joginder Solanki @ Ravi on 28 February, 2024
IN THE COURT OF MS. GURMOHINA KAUR: ADDL.
SESSIONS JUDGE (SOUTH-WEST)-05, Dwarka COURTS:
DELHI
Sessions Case No. 441199/2016
CNR No: DLSW01-003174-2016
FIR No. 64/2016
Police Station: Dwarka South
Under Section: 302/506/120B/34 IPC &25/27/54/59 Arms Act
In the matter of:
State
VERSUS
1. Joginder Solanki @ Ravi,
S/o Sh. Rakesh Solanki,
R/o : WZ-799/3C, Palam Village,
Near Shiv Mandir, New Delhi.
2. Dheeraj Vats @ Rinku
S/o Sh. Subhash Chand Vats
R/o : RZ-I/39, Dharampura Colony,
Near Mangal Chowk Road, Najafgarh,
New Delhi.
3. Amit @ Rocky
S/o Sh. Ramesh Tiku
R/o : C-305, Palam Ext., Sector - 7,
Dwarka, New Delhi.
4. Anil Kumar Vats @ Choti
S/o Sh. Ishwar Chand,
R/o : WZ-746/7, Village Palam,
New Delhi.
State Vs. Joginder Solanki @ Ravi and Ors. No. 1/99
SC No. 441199/2016
5. Manish Solanki @ Chola (abated)
S/o Sh. Raj Singh Solanki
R/o : WZ-623, Palam Village,
New Delhi.
Date of filing of the case : 19.05.2016
Date of Reserving judgment : 04.01.2024
Date of Pronouncement : 28.02.2024
JUDGMENT
1. The present case was assigned to the Ld. Predecessor of this court on 19.05.2016 on being committed as the offences alleged against the Accused persons are Session Triable Offences.
2. In the present case, FIR was registered on the complaint of Gaurav Bhardwaj and thereafter chargesheet against the Accused persons namely Joginder Solanki @ Ravi, Dheeraj Vats @ Rinku, Amit @ Rocky, Anil Kumar Vats @ Choti and Manish Solanki @ Chola (abated) was filed for offences punishable under Sections 302/506/120B/34 IPC and 25/27/54/59 Arms Act.
3. As per the case of the Prosecution, on 01.02.2016 at about 01:45 pm, behind Maxfort School, Sector - 7, Dwarka, New Delhi, Accused Manish Solanki @ Chola (abated) along with his associates Joginder Solanki @ Ravi, Dheeraj Vats @ Rinku, Amit @ Rocky and Anil Kumar Vats @ Choti entered into criminal conspiracy to commit offence of murder of Nikhil S/o State Vs. Joginder Solanki @ Ravi and Ors. No. 2/99 SC No. 441199/2016 Shri Satya Prakash and committed the murder of Nikhil by firing upon him and after committing the murder of Nikhil, threatened eye witness Gaurav Bhardwaj. On 07.02.2016, at about 05:30 pm, near Takiya Maszid, Sadh Nagar, Palam, accused Manish Solanki @ Chola (abated) was found in possession of one loaded pistol magazine of which on checking was found containing 3 live cartridges which accused Manish Solanki @ Chola (abated) used on the day of incident at the time of committing murder of Nikhil on 01.02.2016. It is the case of the prosecution that the incident was witnessed by the complainant Gaurav Bhardwaj.
4. Charge was framed against Accused Joginder Solanki @ Ravi, Dheeraj Vats @ Rinku, Amit @ Rocky, Anil Kumar Vats @ Choti and Manish Solanki @ Chola (abated) by Ld. Predecessor of this Court vide order dated 26.10.2016 for offences punishable under Sections 120B/302/34 IPC to which they pleaded not guilty and claimed trial. Charge was also framed under Section 506 IPC & 25/27/54/59 Arms Act against accused Manish Solanki @ Chola (abated) to which he pleaded not guilty and claimed trial. Accused Manish @ Chola expired during the pendency of trial and proceedings against him stood abated vide order dated 12.02.2019.
5. In order to prove the charges against the Accused persons, the prosecution examined the following persons namely:-
State Vs. Joginder Solanki @ Ravi and Ors. No. 3/99 SC No. 441199/2016
6. PW-1 Gaurav Bharadwaj deposed that on 01.02.2016 while going to Patiala House Court for internship, he met deceased Nikhil in a gali outside his house at 08.00 AM, and he along with Nikhil went to his village Sohal Gaon, Manglapuri on a scooty bearing no. 8291. He stated that the deceased Nikhil received a missed call on his phone and Nikhil took mobile phone of a person who was unknown to him and called back on the said number. He stated that thereafter he left Nikhil at his house and at around 01.00 PM, he received a call from Nikhil on his mobile number, number of which he was not able to re- collect. He further stated that when he reached gali no. 4, Mahavir Enclave, he met deceased Nikhil, who told him that accused Anil @ Choti was calling him to his house to have some conversation and they reached the house of accused Anil @ Choti in a scooty which Nikhil was riding and he was the pillion rider. He further stated that when they reached the house of accused Anil @ Choti, someone told him that Anil @ Choti was not present at his house and thereafter they proceeded to the shop of accused Anil @ Choti behind Maxfort School, Sector -7, Dwarka. He further stated that when they went to the shop of accused Anil @ Choti situated at the back side of Maxfort School, Sector -7 Dwarka, they noticed a white i-10 car stationed there and the witness added that Manish @ Chola (abated) was drinking in the car. He further stated that many persons were standing near the car and accused Dheeraj Vats was standing near the car and accused Joginder Solanki and Amit @ Rocky were also standing near the car.
State Vs. Joginder Solanki @ Ravi and Ors. No. 4/99 SC No. 441199/2016 6.1 PW-1 Gaurav Bhardwaj deposed during his deposition recorded on 15.12.2016 that all the accused persons started abusing each and accused Manish @ Chhola (since abated) asked Nikhil (deceased) to take out whatever he had to which Nikhil (deceased) put his hands in his pocket but found nothing. He stated that Nikhil tendered apology from Manish @ Chhola and then accused Manish @ Chhola fired on the chest and head of Nikhil (deceased) after taking out pistol from the possession of accused Anil @ Choti which he was carrying. He stated further that accused Manish @ Chhola after firing on Nikhil (deceased) first kicked Nikhil (deceased) and then went on foot from the spot towards Maxfort School and after some time came back to the spot on scooty. He added that accused Manish @ Chhola (abated) threatened him that if he tried to pick up Nikhil (deceased) he would also kill him. He stated that when accused Manish @ Chhola left the spot, he called 100 number and he went to Nikhil's Chacha's house and informed Nikhil's aunt (taayi) about the incident. He further deposed that he received a call from police station who informed him that they removed Nikhil from the spot to Ayushman Hospital and he then went to Ayushman Hospital. He added that he was thereafter taken to DCP Office and from there to PS Sector 9 where his statement, Ex. PW1/A was recorded. He further stated that he was kept at the police station for two days and was continuously interrogated. He also stated that on the very same day he was taken on the spot by IO where IO checked the place of State Vs. Joginder Solanki @ Ravi and Ors. No. 5/99 SC No. 441199/2016 sitting/room of Rahul. He stated that in his presence, nothing was lifted by the police from the spot.
6.2 The said witness was cross examined by Ld. Additional PP for the State as the witness resiled from his previous statement on certain aspects. During his cross examination by Ld. Additional PP for the State he admitted that the seizure memo Ex. PW1/B bears his signature at point A. He denied the suggestion that the articles mentioned in Ex. PW1/B were seized in his presence and stated that the articles were shown on the table to him at police station. He added that due to passage of time, he was not able to recollect about the articles. He also admitted that the arrest memos of accused Dheeraj, Ex. PW1/C1, Joginder Solanki Ex. PW1/C2 and Amit, Ex. PW1/C3 bear his signatures at point A on each of them. He further admitted that the car which was used by the accused persons was taken into possession in his presence vide memo Ex. PW1/D. He also stated that after being kept in police station for two says, he was relieved. He admitted that due to passage of time, he was not able to recollect certain things. He identified accused Joginder Solanki before the Court and stated that accused Joginder Solanki was arrested on 02.02.2016 in his presence when he was going in his car.
6.3 The said witness was cross examined by Counsels for all the accused persons wherein he stated that deceased Nikhil was known to him for the last 4-5 years. He stated that on the day of incident, he along with Nikhil went to the house of accused Anil State Vs. Joginder Solanki @ Ravi and Ors. No. 6/99 SC No. 441199/2016 at around 1-1.30 pm on scooty where they were told by the mother and cousin of accused Anil that he might be at his shop. He stated that the last digits of scooty were 8291. He further stated that he could not tell the number from which Nikhil(deceased) received the missed call since at that time he was not there and was at his house. He added that Nikhil had informed him that he had received a missed call. He stated that on the day of incident, he had talked to Nikhil 3-4 times but from different numbers. He stated that he did not remember any of the numbers from which Nikhil (deceased) called him. He further stated they reached the shop of accused Anil at about 1.30 pm. 6.4 During his cross examination conducted on 17.12.2016, in answer to court question, PW1 Gaurav Bharadwaj stated that he could identify i10 car and the photographs and CD of the same were Ex. PW1/X. The said witness during his cross examination conducted by Counsel for accused Manish @ Chhola stated that he did not remember the date on which the i10 car was seized by the police and he was neither called by the police for the seizure of the car nor was the said car seized in his presence. He added that he did not remember the distance between the place where accused Dheeraj was standing and the i 10 car at the time of incident. He added that accused Dheeraj was standing on the other side of the road. He further stated that the time of incident, he had taken a capsule of intoxication and was not in complete senses. He added that he did not remember as to which persons had started bickering with each other and he did not know State Vs. Joginder Solanki @ Ravi and Ors. No. 7/99 SC No. 441199/2016 whether accused Manish @ Chhola was having a weapon or not at the time he was talking to Nikhil. He stated that first he made a call to 100 number and thereafter went to the house of Nikhil's uncle's. He also stated that he reached Ayushman hospital with the cousins of Nikhil. He further admitted that he was detained at the police station for two days and was not allowed to leave the police station. He stated that the police had taken him at the place of occurrence only once on the day of incident and in his presence, no document was prepared by the IO at the spot. He admitted that the entire documents bearing his signatures were prepared in police station. He further admitted that some documents were written and some documents were blank on which his signatures were obtained. He stated that his signatures were obtained after four days of the incident and that he had made the statement before the Court that accused Manish @ Chola (abated) had fired upon Nikhil under the pressure of the family of deceased Nikhil. He further admitted that he did not know who had fired upon deceased Nikhil.
7. PW-2 Dr. V K Ranga, Specialist Forensic Medicine, DDU Hospital deposed that on 02.02.2016, he had conducted the postmortem of the dead body of Nikhil on the request of Inspector Ajay Kumar Singh. He stated that the dead body was identified by Satya Prakash, the father of the deceased and Nishant, brother of the deceased. He further deposed that he had conducted the postmortem at about 12.40 pm and submitted the detailed report vide PM report No. 170/2016, Ex. PW2/A. He State Vs. Joginder Solanki @ Ravi and Ors. No. 8/99 SC No. 441199/2016 stated that as per his opinion, the cause of death was due to hemorrhagic shock due to fire arm injury produced by projectile of fire arm. He further stated all the injuries were ante morterm in nature and were fresh in duration. He stated that injury No. 1 and 2 were sufficient in the ordinary course of nature to cause death, individually and collectively. He stated that possibility of homicide could not be ruled out.
During his cross examination by counsel for accused Manish @ Chola (abated) he stated that the time of death was about 1 day as per finding of PM report. He added that the death occurred within 24 hours of examination. He was not cross examined by Counsels for other accused persons.
8. PW-3 Prashant Yadav deposed that on 01.02.2016, he left his home at 9 am to go to Ramphal Chowk, snooker point to play snooker and his friend Rahul Rajput had accompanied him. He stated that on reaching that place, they met Amit @ Rocky (whom he correctly identified). He further deposed that Rocky called his friend Ravi (identified as accused Joginder Solanki @ Ravi). He further stated that Ravi took out his i10 car whose number he did not remember in which he, Rocky, Ravi and Rahul proceeded to Ramphal Chowk, Sector 7 Dwarka. He stated that they went to wine and beer shop at Sector 23, Dwarka where they again met accused Manish @ Chola (abated) (correctly identified) who said that he would join them. He stated that accused Manish @ Chola (abated) sat in the front and he, Rocky and Rahul were seated at the back. He deposed that while State Vs. Joginder Solanki @ Ravi and Ors. No. 9/99 SC No. 441199/2016 roaming in Dwarka, they consumed whiskey in the car and thereafter Manish purchased clothes from Kakrola more. He further deposed that from the shop below a Metro Station they purchased whiskey and drank whiskey in the moving car and they reached Maxfort School, Sector 7, Dwarka. He also stated that while sitting in the car, accused Dheeraj (correctly identified) was talking to Manish. He stated that at time, he, Rahul, Rocky and Ravi were standing outside. He added that in the meantime, two persons came on a scooty and Manish, Nikhil, Anil and one more person were talking to each other. He identified accused Anil who was present through video conferencing. He stated they started purchasing ber (fruit) from the rehri and he was drunk. He added that he and Rocky on the other side of the road to smoke and in the meanwhile he heard sound like cracker. He deposed further that on turning he saw accused persons Manish @ Chola (abated) and Anil Vats @ Choti were grappling with each other and people started running from there and shouts were heard 'goli chal gayi'. He stated that he ran away from home. He stated that he saw pistol in the hands of Manish @ Chola (abated) and since his face was on the other side, he could not see who had fired from the pistol. He stated that he did not see pistol in the hands of any other person.
8.1 The said witness was cross examined by Ld. Additional PP for the State wherein he admitted that when they had stopped the behind the place at Maxfort School, Sector - 7, 5/6 boys were already there and two persons on scooty had come there. He State Vs. Joginder Solanki @ Ravi and Ors. No. 10/99 SC No. 441199/2016 stated that he only knew the name of one person, Nikhil. He added that he did not know Nikhil personally. He denied the suggestion that accused Manish had taken out pistol from the pant of accused Anil and fired from it on the chest of Nikhil. He added that he was standing on the other side of the road and he did not see it happening. He stated that he told the police that accused Manish had taken out from the pant of accused Anil and fired it on the chest of Nikhil. He stated that he had stated the same to the police after having seen the CCTV footage and what the police were telling. He admitted that after hearing the sound of the first shot fired, he turned around and saw towards the place of occurrence. He stated that he did not see Nikhil sitting. He denied the suggestion that he had seen Nikhil sitting down and that accused Manish @ Chola (abated) went towards Nikhil and fired another shot on the head on Nikhil. He denied the suggestion that he had seen the entire incident taking place or that he had given his statement to the police as per what he had seen at the place of occurrence and not only from the CCTV footage. He stated that he had seen the CCTV footage where the incident was visible appropriately. He stated that he could not identify the pistol.
8.2 During his cross examination by Counsel for accused Anil @ Choti, he admitted that accused Manish did not sit in the car when he met us the first time but sat in the car when he met us the second time that day. He stated that he knew the name of only boy Nikhil which was revealed to him later. He admitted that he State Vs. Joginder Solanki @ Ravi and Ors. No. 11/99 SC No. 441199/2016 was drunk that he could not see what happened. He further stated that police recorded his statement on 26.02.2016 at his home and that after one two days of the murder, he was shown the CCTV footage in police station by the police on mobile phone. He admitted that only on showing the CCTV, he was told the name of Anil and prior to that he did not know Anil's name.
8.3 During his cross examination by Counsel for accused Dheeraj he stated that he had received call from police on the next day of incident and the call was received on the phone of Rahul. He denied the suggestion that Gaurav Bharadwaj was detained at the police station since 01.02.2016 and the police had made him meet Gaurav Bharadwaj. He stated that he did not know any Gaurav Bharadwaj. It is correct that since he was told the names of other accused persons while showing the CCTV footage at PS. He stated that he did not know whether accused Dheeraj was having any shops in the vicinity. He stated that he had not heard the talks between Dheeraj and Manish while they were seated in the car since he was outside the car. PW-3 was not cross examined by Counsels for accused persons Amit @ Rocky and Joginder Solanki.
8.4 During his cross examination by counsel for accused Manish @ Chola (abated) he stated that when he was shown the CCTV footage no public person was present. He further admitted that police persons had told him the names of the persons who were in the CCTV footage when it was shown. He further State Vs. Joginder Solanki @ Ravi and Ors. No. 12/99 SC No. 441199/2016 admitted that prior to that he did not know the names of the persons. He also admitted that since he had consumed a lot of liquor, he had not seen the occurrence and added that he was across the road.
9. PW-4 Rahul Rajput deposed that on the day of incident at about 11.45 am or 12 noon, he had gone to play snooker at Ramphal Chowk, Sector 7, Dwarka where he met Prashant who was his old friend. He stated that a car i10 came whose number he did not remember and two persons who were sitting on the front seats came out and exchanged pleasantries with Prashant they were previously known to him. He stated that he as well as Prashant got seated in the rear seat of i10 car and Prashant introduced him to the persons sitting on the front seat but he did not know their names. He added that they started roaming in Dwarka and from Kakrola they came back to Ramphal Chowk to Maxfort market. He stated that since it was about 2 pm, he went home and after buying falsa for Rs. 10, he took TSR to his home at Indira Park.
The said witness was cross examined by Ld. Additional PP for the State he stated that he had not given the statement under Section 161 CrPC dated 26.02.2016, Mark P4/A. He stated that accused Amit @ Rocky did not come to play snooker Q club in his presence. He denied all the other suggestions put forth to him and was not cross examined by Counsels for any of the accused persons.
State Vs. Joginder Solanki @ Ravi and Ors. No. 13/99 SC No. 441199/2016
10. PW-5 Satya Prakash deposed that deceased Nikhil was his son and he had identified the dead body of Nikhil at DDU Mortuary vide his statement Ex. PW5/A. He stated that after the postmortem, he received the dead body of Nikhil and that Nikhil was murdered on 01.02.2016. The said witness was not cross examined by Counsels for any of the accused persons.
11. PW-6 Nishant deposed Nikhil was his elder brother and he had identified the dead body of Nikhil at DDU Mortuary vide his statement Ex. PW6/A, stated that after the postmortem, he received the dead body of Nikhil and that Nikhil was murdered on 01.02.2016. He stated that at that time he was in college and he did not see the incident. He further stated that he did not see who all committed the murder of Nikhil. The said witness was not cross examined by counsels for any of the accused persons.
12. PW-7 ASI Geeta deposed that on 01.02.2016, she was the Duty Officer and at 02:00 pm, on receipt of call from Control Room, she recorded the information in DD No. 24A on 01.02.2016, copy of which was Ex.PW7/A (OSR). She further stated that at about 03:05 pm, on 01.02.2016, she received the call from Control Room and she recorded the information in DD No. 24B, copy of which was Ex.PW7/B (OSR). She further deposed that at about 12:30 pm, on 03.02.2016, she received call from R. K. Puram, Crime Branch and she recorded the information in DD No. 32B, copy of which was Ex.PW7/C. She deposed that at about 09:20 am on 08.02.2016, she received a State Vs. Joginder Solanki @ Ravi and Ors. No. 14/99 SC No. 441199/2016 call from ASI Shiv Kumar, ATS, SW and recorded the information in DD No. 16B, copy of which was Ex.PW7/D (OSR). The said witness was not cross-examined by counsel for any of the accused persons.
13. PW-8 ASI Sukhbir deposed that on 01.02.2016, he was posted as Duty Officer at PS Dwarka South from 4 pm to 12 night and at about 6.45 pm, HC Saini gave him tehrir sent by Inspector Ajay Kumar on the basis of which he got recorded the FIR of this case through Computer Operator Pramod Kumar. He deposed that the copy of FIR was Ex. PW8/A(OSR) and the endorsement on the tehrir was Ex. PW8/B. The certificate under Section 65B of the Indian Evidence Act was Ex. PW8/C. During his cross examination by Counsels for accused persons Manish Solanki and Dheeraj Vats @ Rocky, he stated that the FIR was completely recorded by 7.35 pm. During his cross examination by counsel for accused Anil Vats he stated that he had sent the copies of the FIR through special messenger Ct. Dinesh to officers including Ld. MM after 7:35 pm.
14. PW-9 Sunil Kumar deposed that on 01.02.2016, at about 1.45 or 2 pm he was at his home with his uncle Ram Kumar and Gaurav Bharadwaj came to their home and informed them that bullet had hit Nikhil. He deposed that Nikhil was the son of his uncle Satya Prakash. He further deposed that he along with Ram Kumar and 2-4 village people reached near Maxfort School, the place of incident. He further stated that by the time we reached State Vs. Joginder Solanki @ Ravi and Ors. No. 15/99 SC No. 441199/2016 there, Nikhil was already taken to Ayushman hospital. He stated that they waited outside Ayushman Hospital, where Nikhil was declared dead. During his cross examination by Counsels for accused persons Manish Solanki and Dheeraj Vats he stated that they reached Ayushman Hospital at about 2.10 or 2.20 pm. He stated that after 2-3 days, police called him and made inquiries. He admitted that police had not recorded his statement.
15. PW-10 Ram Kumar deposed that on 01.02.2016, he was at his home and about 1.45 pm he was at his home and when Gaurav came and informed that Nikhil was hit by a bullet. He stated that he did not see the incident wherein Nikhil was hit by bullet. He deposed on similar lines as that of testimony of PW9 and stated that they remained outside at Ayushman Hospital where Nikhil was declared dead.
The said witness was cross examined by Ld. Additional PP for the State and the said witness had partly resiled from his previous statement. During his cross examination by Ld. Additional PP for the State he admitted that police had inquired from him on 11.02.2016 and had recorded his statement. He further admitted that Satya Prakash was his elder brother and Nikhil was his son and that Gaurav Bharadwaj was Nikhil's friend. He further admitted that at about 1.45 pm, Gaurav Bharadwaj came to his home on scooty. The said witness was cross examined by Counsels for accused persons Manish Solanki and Dheeraj Vats wherein he stated that police had called him only once and thereafter he was never called by the police to join State Vs. Joginder Solanki @ Ravi and Ors. No. 16/99 SC No. 441199/2016 investigation. He also stated that he was called by the police on the day of incident and not later and then his statement was recorded. During his cross examination by Counsel for accused Amit @ Rocky, the witness PW10 admitted that from the place of incident, the home of Nikhil was nearer than his home.
16. PW-11 SI Shiv Kumar deposed that on 07.02.2016, he was posted in AATS, South-West Dwarka as ASI and on receipt of DD No. 10 at 7.20 pm, he went to Sadh Nagar, near Takia Masjid where he met ASI Shyam Singh, HC Vijay and one person. He stated that ASI Shyam Singh produced a sealed jar sealed with the seal of SS and one person Manish. He further deposed that at the pointing out of ASI Shyam Singh, he prepared the site plan, Ex. PW11/A of the place of apprehension of accused Manish @ Chhola (abated) with country made pistol. He stated that he seized the scooty vide seizure memo Ex. PW1/C and recorded the statement of ASI Shyam Singh. He added that he interrogated accused Manish and arrested him vide arrest memo Ex. PW1/D during the personal search of accused Manish @ Chhola (abated) was conducted vide memo Ex. PW1/E. The said witness identified accused Manish @ Chhola (abated) who was produced before the court by way of video conferencing. He further stated that he sent the case property to FSL and prepared the chargesheet and submitted the same in the Court. The said witness was cross examined by Ld. Additional PP for the State wherein he admitted that IO of FIR NO. 64/16 PS Dwarka South had inquired from him and recorded his statement. During his State Vs. Joginder Solanki @ Ravi and Ors. No. 17/99 SC No. 441199/2016 cross examination by Counsels for accused persons Manish Solanki and Dheeraj Vats, he stated that he was in his office when he received DD No.10. He admitted that there used to be a vegetable market near Takiya Masjid. He stated that he prepared the arrest memo of accused Manish @Chhola (abated) at about 8.50 pm. He denied the suggestion that they had not arrested accused Manish @ Chhola (abated) but he had surrendered at their office. During his cross examination by counsel for accused Amit @ Rocky, he stated that he had filled the particulars of FIR number on the top of sketch of pistol.
17. PW-12 Ct. Ramesh deposed that on 12.04.2016 at the directions of Inspector A. K Singh, he had accompanied him to A-117, Chander Vihar, Palam Extension, Dwarka Sector 7 near Maxfort School at the backside of Shri Agarsen Apartments and took rough notes. He stated that on 13.04.2016, he prepared the scaled site plan, Ex. PW12/A and thereafter destroyed the rough notes and handed over the scaled site plan to SI Nanag Ram. The said witness was cross examined by Ld. Additional PP for the State wherein he stated that he had gone to A-17, Chander Vihar, Palam Extension and not A-117. He stated that he had taken notes at A-17. During his cross examination by Counsels for accused Amit @ Rocky, he admitted that in his statement under Section 161 Cr.P.C dated 12.04.2016, address was not mentioned of where he had gone and taken the rough notes.
State Vs. Joginder Solanki @ Ravi and Ors. No. 18/99 SC No. 441199/2016
18. PW-13 Dr. Sudhanshu Shekhar deposed that on 01.02.2016, he was working as Casualty Medical Officer at Ayushman Hospital and at 02:04 pm, he had examined Nikhil when he was brought in an unconscious state by HC Deen Dayal. He stated that he prepared MLC No. 4027/16 in his own handwriting Ex.PW13/A. The witness further added that the said patient did not respond to any stimulus and his pulse BP was not recordable. He stated that he declared the said patient dead and the body of the patient has handed over to police.
During his examination by Counsel for the accused Dheeraj, he stated that the alleged history has told to him by HC Deen Dayal who had brought the said patient and he did not have personal knowledge of the incident.
19. PW-14 Ramesh Chand deposed that in 2016, he was engaged in farming and does not know nothing about this case.
The said witness was cross-examined by Ld. Addl. Public Prosecutor for the State as he resiled from his previous statement wherein he admitted that Sunil Pandit was the son of his elder brother and he was murdered in 2015. He admitted that he had got installed a CCTV camera in his house after the said murder and added that the said camera was installed at his house. He denied the suggestion that the police had interrogated him and recorded his statement under Section 161 Cr.P.C. He stated that he could not say that it was not in his knowledge that on 01.02.2016, there was one murder committed in front of his shops which was captured in his CCTV camera or that the same State Vs. Joginder Solanki @ Ravi and Ors. No. 19/99 SC No. 441199/2016 was seen by police. He denied the suggestion that he had handed over the DVR of the CCTV camera system alongwith the adapter to the police or that the same was put in a white cloth pullanda and sealed by police and seized. He denied the suggestion that he had been won over by the accused persons. He further stated that the DVR did not belong to him.
19.1 During his examination by all the accused persons, he admitted that the DVR and the camera system which he had installed at his house in 2015 was still installed at his house. The said witness was re-examined by Ld. Addl. Public Prosecutor for the State wherein he stated that he did not have any bills of the DVR system which he got installed in 2015.
19.2 The said witness was recalled for his deposition on 27.01.2021 wherein he stated that he did not bring the bill as he could not find it.
19.3 The PW-14 was cross-examined by counsel for Accused Dheeraj wherein he stated that the spot where the incident happened was about 40 yards from his house and that accused Dheeraj used to look after one Kiryana shop and in another shop, Accused Dheeraj also conducted property dealing work.
19.4 During his examination by counsel for Accused Anil Kumar, he admitted that accused Anil was the son of his brother Ishwar Chand and used to come at his shop bearing No. A-22, State Vs. Joginder Solanki @ Ravi and Ors. No. 20/99 SC No. 441199/2016 Chander Vihar, Dwarka Sector - 7.
20. PW-15 Puneet Puri, Assistant Director, Ballistics, FSL Rohini deposed that on 17.03.2016, three sealed parcels and on 19.08.2016, one sealed parcel was received in the office of FSL Rohini which were marked to him for examination. He added that the 7.65 mm cartridge, Mark Ex.EC1 and Ex.EC2 were the fired empty cartridges and no opinion could be given whether the said cartridges were fired through improvised pistol 7.65 mm bore Marked Ex.F1 in FIR No. 66/16, PS Palam Village, as the individual characteristics of marks present on the cartridges and the test fired cartridges were found insufficient for comparision and opinion/report. He further deposed that the bullet marks EB1 and EB2 were corresponding to the bullets of 7.65 mm cartridges and had been discharged through improvised pistol 7.65 mm bore, Mark F1 as the individual characteristic of striations present on evidence bullets mark Ex.EB1, Ex.EB2 and on test fired bullets marked TB1 and TB2 were found identical when they were examined under comparison microscope. He stated that cartridges marked Ex.A1, cartridge cases marked EC1, EC2 and bullets marked EB1 and EB2 were ammunitions as defined in Arms Act, 1959 and the improvised bullet, Ex.F1 was a fire arm as defined in Arms Acts, 1959. He stated that his detailed report was Ex.PW15/A. The said witness was examined by Counsel for Accused Anil Kumar wherein he denied the suggestion that the individual marking /characteristics on the bullet continue to shift/alter after State Vs. Joginder Solanki @ Ravi and Ors. No. 21/99 SC No. 441199/2016 5-6 shots fired from the same weapon. He stated that he could not tell how many shots were previously fired from the weapon in question Ex.F1.He denied the suggestion that marking found on the bullet or cartridge would be the same on the weapons which were manufactured in consecutive process/order one by one.
21. PW-16 HC Dinesh Kumar deposed that on 01.02.2016, the Duty Officer handed over to him three envelopes containing the copy of FIR which he delivered to Joint CP, DCP and concerned Ld. MM. He further stated that on 23.02.2016, on the directions of IO, he went to PS Palam Village to collect the case property i.e. one scooty bearing Registration No. DL-9SAU-2351 and one pistol and on reaching there, he came to know that the pistol had already been deposited at FSL. He added that the MHC(M) of PS Palam Village handed over the said scooty to him vide Road Certificate vehicle he brought to PS Dwarka South and handed over the same to MHC(M). He stated that as long as the case property remained in his possession, the same was not tampered with. He identified the photographs of the scooty Ex.PW16/P1 to Ex.PW16/P5. During his cross-examination by Counsel for accused Anil Kumar Vats, he denied the suggestions put forth to him.
22. PW-17 Pankaj Sharma deposed that on 07.04.2016, on the instructions of IO, he had taken two sealed parcels from MHC(M) and deposited the same in FSL vide RC No. 30.12.2016. He added that after depositing the same, he State Vs. Joginder Solanki @ Ravi and Ors. No. 22/99 SC No. 441199/2016 deposited the copy of RC and receipt of FSL in Malkhana. He stated that till the time, the property remained with him, it was not tampered with. The said witness was cross-examined by Counsel for Accused Dheeraj wherein he denied the suggestion that he did not deposit any exhibit in FSL.
23. PW-18 Ct. Anil deposed that on 17.03.2016, vide RC No. 17/12/16, four sealed pullandas vide RC No. 19/21/16, one sealed pullanda were taken by him from Malkhana Mohrar and he deposited RC No. 17/12/16 as well as 18/12/16 alongwith forwarding letter with FSL Rohini. He stated that due to some objection, Exhibits as mentioned in RC No. 19/21/2016 were not deposited in FSL and he handled the same back alongwith acknowledgment receipts of FSL to MHC(M). He added that till the time, the case property remained with him, the same were not tampered with.
During his cross-examination by counsel for Accused Amit @ Rocky that he did not remember which he had mentioned in his statement under Section 161 Cr.P.C. regarding the objection raised by FSL.
24. PW-19 HC Karambir Singh deposed that on 13.08.2016, he had gone to PS Palam Village on the instructions of IO and obtained pullanda from MHC(M) having seal of FSL vide RC No. 115/21/16 and handed over the same to MHC(M), PS Dwarka South. He further stated that on 29.09.2016, on instructions of IO, he went to Police Line Kot with the PHQ State Vs. Joginder Solanki @ Ravi and Ors. No. 23/99 SC No. 441199/2016 order and Authority letter and obtained five live cartridges vide RC No. 207/21/16 and deposited the same with MHC(M). He added that he had obtained RC No. 114/21/16 and deposited the above said cartridge to FSL Rohini and handed over the acknowledgment to MHC(M). He stated that till the time, the case property remained with him, it was not tampered with. In a leading question put by Ld. Addl. Public Prosecutor for the State, he admitted that Road Certificate No. vide which he had obtained sealed pullanda from PS Palam Village was 125/21/16 and not 115/21/16. During his cross-examination by counsel for Accused Amit @ Rocky that he denied the suggestion that he did not deposit the exhibits with FSL
25. PW-20 SI Satender Kumar deposed that he brought the original Road Certificate Register pertaining to above said organization and as per record, on 29.09.2016, five number of live cartridges of 7.65 mm pistol were issued to SHO PS Dwarka South through Ct. Karamveer Singh for test firing/ballistic opinion in present FIR vide RC No.207/21/16, Ex. PW20/A (OSR).
The said witness was not cross-examined by counsels for any of the accused persons.
26. PW-21 Prashant Kumar, Alternate Nodal Officer, Vodafone Idea Ltd., deposed that as per record, mobile number xxxx8577 was issued in the name of Dheeraj Kumar Vats S/o Sh. Subhash Chand Vats and the said subscriber had furnished the State Vs. Joginder Solanki @ Ravi and Ors. No. 24/99 SC No. 441199/2016 copy of his Aadhar card in respect of his identity and his residential proof. He stated that the certified copy of CAF was Ex.PW21/A and the original of the same had been destroyed after 3 years of deactivation of mobile number. He stated that the certificate in this regard was Ex.PW21/B and the certified computer generated CDR of mobile number xxxx8577 for the period 30.01.2016 to 02.02.2016 was Ex.PW21/C. He added that the certificate u/s 65B of The Indian Evidence Act pertaining to said mobile number was Ex.PW21/D. 26.1 PW21 further deposed that as per record, mobile no. 9899996067 was issued in the name of Sh. Sunil Kumar Vats, s/o Sh. Ishwar Chand Vats and the said subscriber had furnished the copy of his Aadhar card in respect of his identity and residential proof. He stated that the certified copy of CAF lying with judicial file was Ex.PW21/E (OSR) and the computer generated CDR of said mobile number i.e. xxxx6067 for the period 30.01.2016 to 02.02.2016 was Ex.PW21/F. He stated that Ex.PW21/A to Ex.PW21/G except Ex.PW21/B, bears the initials of Nodal Officer Sh. Anuj Bhatia and could identify his signatures as he had worked with him.
26.2 During his examination by Counsel for the accused Amit @ Rocky, he stated that he had not brought any official document pertaining to his functioning in the organization in 2016 but he could bring the same.
State Vs. Joginder Solanki @ Ravi and Ors. No. 25/99 SC No. 441199/2016
27. PW-22 HC Devender deposed that on 01.02.2016 on receipt of control room call, he along with I/C mobile crime team SI Khazan Singh and other crime team officials reached the spot i.e backside of Maxfort School, Sector 7, Dwarka where on the request of IO, he clicked 11 photographs at the spot, Ex. PW22/A (colly) and the negatives of the said photographs were Ex.PW22/B (Colly). He was not cross examined by Counsels for any of the accused persons.
28. PW-23 Vivek Kumar, Junior Forensic/Assistant Chemical Examiner, FSL, Rohini deposed that on 07.04.2016, one sealed parcel sealed with the seal of AKS was received in the laboratory vide memo no. 877/R-SHO/Dwarka South and the same was assigned to him for examination. He stated that on opening the sealed parcel, one DVR containing no. QHMPLH 264, having model no. QHM8101-S7AHDF which had one western digital hard disc. He stated that during examination, the suspect storage media marked HDD1 was forensically duplicated on a sterile storage media and the duplicated storage was analyzed and the requisite video files dated 01.02.2016 at about 1.00 pm to 2.15 pm had been retrieved and was then transferred to three DVDs. He stated that he prepared his report Ex. PW23/A and three DVDs were Ex.PW23/1 to Ex. PW23/3 respectively. The DVR is Ex. PW23/4. The said witness was not cross examined by Counsels for any of the accused persons.
State Vs. Joginder Solanki @ Ravi and Ors. No. 26/99 SC No. 441199/2016 28.1 The said witness was recalled in view of order dated 19.08.2023 and he deposed that he had seen his detailed report Ex. PW23/A. During his cross examination by Counsel for accused Anil @ Choti, he admitted that he had no personal knowledge and the DVR was examined at the request of the IO.
28.2 PW-23 Sh. Vivek Kumar was again recalled under Section 311 Cr.P.C vide order dated 02.02.2024, wherein he certified that the proceedings pertaining to the present case related to retrieval of data from DVR1 (HDD1), already Ex.PW- 23/4 which was carried out by him using forensic software and hardware tools of forensic workstation. He stated that the retrieved data was provided in the soft copy as Annexure DVD1, DVD2 and DVD3, already Ex.PW23/1 to Ex.PW-23/3 respectively. He further stated that the contents of the soft copy was the true reproduction of retrieved data and also certified that at the time of data retrieval Forensic Work Station was under his control and working properly during the process and there was no distortion with the accuracy of the data. He stated that the certificate under Section 65 B (4)(c) of the Indian Evidence Act was Ex.PW-23B.
28.3 During his cross-examination by Ld. counsel for accused persons Joginder Solanki and Amit @ Rocky, he admitted that Ex.PW23/B bears the date 12.02.2024 and further admitted that Ex.PW-23/A and Ex.PW-23/B does not bear the date of retrieval of data.
State Vs. Joginder Solanki @ Ravi and Ors. No. 27/99 SC No. 441199/2016 28.4 During his cross-examination by Ld. counsel for accused persons Anil @ Choti and Dheeraj Vats, he denied the suggestion that the Ex.PW-23/B was prepared in a mechanical manner.
29. PW-24 Inspector Devender Kumar deposed that he had taken out the PCR form on the request of the IO which was Ex. PW24/A and the certificate under Section 65B of the Indian Evidence Act was Ex. PW24/B. The said witness was not cross examined by Counsels for accused persons.
30. PW-25 Surender Kumar, Nodal Officer, Bharti Airtel Ltd. deposed that he was working in the said company since 03.08.2015 and as per record, mobile No. xxxx3106 was issued in the name of Manish and the subscriber furnished the copy of his election ID card in respect of his identity and his residential proof. He stated that the certified copy of CAF was Ex.PW25/A (OSR) and the computer generated CDR of mobile number xxxx3106 was Ex.PW25/B. He further stated that as per record, mobile No. xxxx4434 was issued in the name of Amit and the subscriber had furnished copy of his Aadhaar card in respect of his identity and residential proof. He further stated that the CAF was Ex.PW25/C and the computer generated CDR of the mobile number was Ex.PW25/D. He stated that mobile No. xxxx9439 was issued in the name of Joginder s/o Sh. Rakesh and the subscriber had furnished copy of his Aadhaar card in respect of his identity and residential proof. He further stated that the State Vs. Joginder Solanki @ Ravi and Ors. No. 28/99 SC No. 441199/2016 certified copy of CAF was Ex.PW25/E and the computer generated CDR was Ex.PW25/F. He deposed that as per record, the mobile no. xxxx4005 was issued in the name of Sumit Tiku and the subscriber had furnished the copy of his Employee ID card in respect of his identity and residential proof. He stated that the certified copy of CAF was Ex.PW25/G and the computer generated CDR of said mobile number was Ex.PW25/H. He deposed that as per record, mobile no. xxxx6100 was issued in the name of Gaurav Bhardwaj, s/o Sh. Jugal Kishore and the subscriber had furnished the copy of his ID card issued by Bar Council of Delhi in respect of his identity and residential proof. The certified copy of CAF was Ex.PW25/I (OSR) and the computer generated CDR of the said mobile number was Ex.PW25/J. He also deposed that as per record, mobile no. xxxx5694 was issued in the name of Vimla Devi, w/o Sh. Manohar Lal and the subscriber had furnished the copy of her election ID card in respect of her identity and her residential proof. The certified copy of CAF was Ex.PW25/K and the CDR of the said mobile number was Ex.PW25/L. He stated that the certificate u/s 65B of the Indian Evidence Act was Ex.PW25/M. He also brought the Cell ID chart which was taken on record as Ex.PW25/N. The said witness was crossexamined by Counsels for accused persons Anil Kumar Vats @ Choti and Joginder Solanki wherein he stated that the original CAF of the mobile numbers were generally kept for 57 years.
State Vs. Joginder Solanki @ Ravi and Ors. No. 29/99 SC No. 441199/2016
31. PW-26 HC Deen Dayal deposed that on 01.02.2016 he was on duty on PCR Zebra 74 and at about 01:00 pm, he received a call regarding shooting of one person and he reached the PCR alongwith his staff behind Max Fort School, Dwarka. He stated that on reaching there, they found one person lying near the corner of the road and blood was oozing out from his head and chest and they immediately took him to Ayushman Hospital, Sector - 12 where the doctors declared him brought dead. He further deposed that on the personal search of deceased Rs. 200/- cash and one mobile no. of make Micromax, having two Airtel SIM, one small knife and white handkerchief, one live round having 7.65 K of which was stuck in the cloth of deceased were found. He added that the sketch of live round was Ex.PW26/A and the seizure memo of the aforesaid articles was Ex.PW26/B. He also stated that when he reached the spot, at the first instance they found two used cartridges lying there.
During his examination by counsel for accused Anil Kumar he denied the suggestion that he did not visit the spot after receiving the call.
32. PW-27 Phoolwati deposed that he was the registered owner of the vehicle No. DL-10CS-6805 make Hyundai i10 and she got the same released from Court's order. He stated that the Panchnama was Ex.PW27/A. The said witness was not examined by Counsels for any of the accused persons.
State Vs. Joginder Solanki @ Ravi and Ors. No. 30/99 SC No. 441199/2016
33. PW-28 Ishwar Chand deposed that he was the registered owner of scooty bearing No. DL-9SAW-3251 and he got the same released on Court's order. He stated that the Panchnama was Ex.PW28/A. The said witness was not cross-examined by Counsels for any of the accused persons.
34. PW-29 Ct. Rajesh deposed that on 01.02.2016, he was on emergency duty from 08:00 am to 08:00 pm and on that day on receipt of DD No. 24A regarding gun shot injury to a person and he reached the spot i.e. behind Max Fort School, Sector - 7, Dwarka, alongwith SI Sunil where he found two empty cartridges and blood was observed by him. He stated that SHO alongwith his staff also came there and HC Shammi Kapoor was ordered to remain at the spot to protect them and he alongwith SHO and his staff reached Ayushman Hospital where the injured was declared dead by the doctor. He stated that he took the dead body at DDU Mortuary and remained there.
During his examination by counsel for accused Amit @ Rocky, he stated that he did not remember the date when his statement was recorded.
35. PW-30 ASI Priyavrat deposed that on 02.02.2016 when he was present in office, secret information was received by HC Randhawa that the accused wanted in the present case would come at Kalkaji, Nehru Palace. He stated that he briefed the information to Inspector Yashpal and a raiding party was constituted including himself, HC Randhawa, Ct. Badri Prasad State Vs. Joginder Solanki @ Ravi and Ors. No. 31/99 SC No. 441199/2016 and Ct. Gangadhar. He stated that they went to Kalkaji Mandir at about 10:30 pm and on the pointing out of secret informer, they apprehended that person whose name was found to be Anil Vats @ Choti, who the witness correctly identified through VC. He stated that accused was brought to Crime Branch office where he was interrogated. He stated that he arrested the accused vide memo Ex.PW30/A and the personal search of the said accused was conducted vide memo Ex.PW30/C and that he had recorded the disclosure statement Ex.PW30/C. He stated that he prepared the Kalandara under Section 41A Cr.P.C. Ex.PW30/D and he handed over the original Kalandara with documents to IO.
During his cross-examination by counsel for accused Anil Kumar Vats he denied the suggestion that he had stated to IO that accused was taken to Crime Branch, Sector - 8, Rohini and was confronted with statement under Section 161 Cr.P.C. dated 03.02.2016, Ex.PW30/DX1 where the same was mentioned. He stated that accused had arrived at the spot by foot and he had formally arrested the Accused at about 10:00 am on 03.02.2016. He stated that public persons were requested to join proceedings but none of them agreed and went away without disclosing their names.
36. PW-31 SI Sandeep Malik deposed that on 04.02.2016, he alongwith IO Inspector Ajay Kumar Singh and staff left for searching co-accused Manish. He deposed that Accused Anil @ Choti took them to spot behind Max Fort School, Sector - 7, Dwarka and at the pointing out of Accused Anil @ Choti, he State Vs. Joginder Solanki @ Ravi and Ors. No. 32/99 SC No. 441199/2016 prepared the pointing out memo Ex.PW31/A. He identified accused persons Anil @ Choti and Deeraj present in the Court.
During his cross-examination by counsels for Accused Anil Kumar Vats, he denied the suggestion that no pointing out memo was prepared at the instance of Accused Anil @ Choti or that his signature were taken on blank paper.
37. PW-32 SI Anil Kumar deposed that on 01.02.2016, he was posted on emergency duty from 08:00 am to 08:00 pm and on receipt of DD No. 24A, he alongwith Ct. Rajesh reached the spot i.e. behind Maxfort School, Sector - 7, Dwarka where he observed two empty cartridges and blood. He stated that thereafter, IO/SHO Ajay Kumar Singh also came at the spot alongwith PW-35 HC Shammi and other staff in his Government vehicle. He stated that the Control Room received a call regarding the fact that the injured was taken to Ayushman Hospital by PCR Van and HC Shammi kapoor was left at the spot by IO to protect the spot and they all went to Ayushman Hospital, Sector-12, Dwarka. He further deposed that on reaching hospital, it was found that injured Nikhil was found brought dead by the doctor and the police officials of PCR met them at the hospital and handed over the articles found from the dead body of the deceased which had been seized by IO vide seizure memo already Ex.PW26/B. He further deposed that eye witness Gaurav Bhardwaj also met them in the hospital and the dead body was sent to mortuary of DDU Hospital through Ct. Rajesh. He further stated that statement of Gaurav Bhardwaj was recorded by IO State Vs. Joginder Solanki @ Ravi and Ors. No. 33/99 SC No. 441199/2016 and crime team was called at the spot which inspected the spot and clicked photographs of the spot. He stated that rukka was prepared and was sent by IO to PS for registration through HC Shammi Kapoor. He further deposed that IO picked up from the spot two empty cartridges, blood gauge, blood mixed earth from the spot and put them in separate containers and sealed them with the seal of AKS. The sketch of the empty cartridge was prepared which Ex. PW32/A. He deposed that the seizure memo of abovesaid articles was prepared Ex.PW1/B and the site plan was prepared at the spot at the instance of eye witness. He added that CCTV cameras were looked upon and one CCTV camera was found installed near the place i.e., Chander Vihar, A-4, Sector 7, Dwarka at the house of Ramesh Kumar Vats. He stated that the CCTV footage was checked and it was found that it contained the CCTV footage of the incident and the IO seized the DVR along with the adapter. He further stated that the same was seized vide seizure memo Ex. PW 32/B and sealed with the seal of AKS. The witness further deposed that he along with IO and other staff, went to DDU hospital the next day to get the postmortem conducted on the dead body of the deceased where the father of the deceased Satya Prakash and his brother identified the dead body of the deceased. He stated that the postmortem was conducted on the instructions of the IO.
37.1 During his examination in chief conducted on 07.01.2021, he deposed that the doctor had given the sealed exhibits to the IO which was seized by him vide seizure memo Ex. PW32/C. He State Vs. Joginder Solanki @ Ravi and Ors. No. 34/99 SC No. 441199/2016 added that thereafter he along with HC Shammi, Ct. Rajiv, Ct., Pritam, Ct. Dinesh and the IO left the PS to search for the accused persons and when they reached near Ramphal Chowk, a secret informer met them and they went to A block, Sector 8 where i10 car was parked and they found three persons inside the car, who they apprehended. He further stated that the names of the three persons were found to be Joginder Solanki, Amit and Dheeraj who he correctly identified. He stated that all the three accused persons were interrogated and arrested by IO vide arrest memos Ex.PW1/C1, Ex.PW1/C2 and Ex.PW1/C3 and the personal search memo of the accused persons Joginder Solanki, Amit and Dheeraj were also conducted vide memos Ex. PW32/D, Ex.PW32/E and Ex.PW32/F respectively. The disclosure statement of the accused persons Joginder Solanki, Amit and Dheeraj were also recorded vide memos Ex.PW32/G, Ex. PW32/H and Ex. PW32/I respectively. The i10 car was also seized vide memo already Ex. PW1/D. He stated that the accused persons led them to the spot and at their instance, the pointing out memo was prepared Ex. PW32/J. He added that the aforesaid three accused persons were produced before the court the next day and special staff officials also appeared before the Court and produced accused Anil @ Choti who had been arrested by them in a Kalandra. He stated that Accused Anil @ Choti was interrogated and arrested vide arrest memo Ex. PW32/K and his disclosure statement was Ex.PW32/L. He added that the IO recorded the statement of the staff of special cell and the supplementary disclosure statement of accused Anil @ Choti was State Vs. Joginder Solanki @ Ravi and Ors. No. 35/99 SC No. 441199/2016 Ex. PW32/M. The witness identified the case property containing one folding knife, one mobile phone make Micromax having two Airtel SIM car, Rs. 200 in denomination of Rs. 100 each and one white handkerchief Ex. P1 colly. He stated that the DVR was seized by IO vide Ex. PW23/4.
37.2 During the further examination in chief conducted on 13.01.2021, the witness PW32 SI Anil Kumar identified the cartridge as Ex. P2 colly and the two used cartridges as Ex. P3 colly. He also identified the earth (mitti) seized as Ex. P4.
37.3 The said witness was cross examined by Counsel for accused Anil @ Choti he stated that he did not remember the exact time when he reached Ayushman Hospital but added that it might be between 1-2 pm. He stated that they met complainant Gaurav Bharadwaj at the hospital and they remained at the hospital for about 30 minutes. He further stated that the statement of Gaurav was recorded by the IO in Ayushman Hospital but he did not remember the exact time. He stated that they came back to the spot between 2-2.30 pm and the complainant also accompanied them to the spot. He denied the suggestion that the complainant was taken to DCP office as well as police station before reaching the spot from the hospital. He stated that he could not tell now about the address of the premises of the premises where the CCTV was installed.
37.4 The said witness was also cross examined by Counsel for State Vs. Joginder Solanki @ Ravi and Ors. No. 36/99 SC No. 441199/2016 accused Dheeraj wherein he stated that the DD entry was received between 1-2 pm and that at the time when DD entry was received, Ct. Rajesh was present with them. He stated that no police official met him at the spot when he reached there after receiving the call. He admitted that there were shops as well as residential houses near the spot and he had inquired the facts from the nearby shopkeepers. He stated that no public person volunteered to depose any fact about the incident. He stated that he remained there for about 10-15 minutes initially and IO arrived at the spot at about the same time when he reached there but he could not tell the exact time. He stated that he did not remember the exact place in the hospital where the statement of Gaurav was recorded. He further deposed that he remained at the spot after returning from the hospital for about 2-2.5 hours. He stated that during the time when HC Shammi went to PS and arrived back at the spot with the copy of the FIR, IO had called the crime team, inquired about the CCTV footage, got the photography of the scene done and lifted the exhibits from the spot. He stated that he had also seen the CCTV footage where the camera was installed i.e., in the house of Ramesh Kumar. The said witness also stated during his cross examination that he was not aware about the identities of the accused persons prior to watching the CCTV footage. He stated that they searched nearby places around the spot for the whereabouts of accused persons and also inquired from the public persons. He did not remember whether any member of the raiding party i.e. police official told IO about the fact of knowing any of the accused persons prior to State Vs. Joginder Solanki @ Ravi and Ors. No. 37/99 SC No. 441199/2016 the raid. He stated that initially they went to Sector 7, Ramphal Chowk, Dwarka in search of accused persons where secret informer met them and told them about the accused persons. He denied the suggestion that no secret informer met them or had accompanied them to Sector 8. He denied the suggestion that accused Dheeraj @ Vats was not effected as narrated by him in his examination in chief or that the accused was lifted from his house. He also denied the suggestion that accused Dheeraj @ Vats was arrested forcefully from his house on 02.02.2016 about 00.06 AM in night. He denied the suggestion that while arresting accused Dheeraj @ Vats his brother got injured and also denied the suggestion that any call was made at number 100 by the brother of accused Dheeraj. He stated that no incriminating evidence was recovered from accused Dheeraj after his arrest and admitted that place of incident was already in their knowledge prior to arrest of the accused persons. He also admitted that apart from the complainant, no other public witness was the witness of any documentation during investigation of the present case in which he was participant.
38. PW-33 SI Ulahannan deposed that on 01.01.2016, he received a message at PCR control room regarding firing of one male person at Maxfort School, Sector 7, Dwarka which was flashed to police official vehicles. He stated that the PCR form was Ex. PW24/A. The said witness was not cross examined by Counsels for any of the accused persons.
39. PW34 HC Surender Kumar deposed that on 19.08.2016, State Vs. Joginder Solanki @ Ravi and Ors. No. 38/99 SC No. 441199/2016 on the instructions of the IO, he received the seal pullanda with RC no. 89/21/16 from Malkana Moahrar along with the forwarding letter and he deposited the same with FSL, Rohini. He stated that he obtained receipt and FSL, Rohini also gave requisition of five live cartridges for test purpose. He stated that thereafter he came back to PS and deposited the acknowledgement and requisition to MHC(M).
During his cross-examination by Ld. Counsel for accused Joginder Solanki @ Ravi, he stated that he had signed the MHC(M) register after obtaining the pullanda from MHC(M) prior to depositing the same in FSL Rohini.
40. PW-35 ASI Shammi Kapoor, deposed that on 01.02.2016, at about 02.00 PM on receiving call regarding gunshot injury, he along with IO/SHO Inspector Ajay Kumar and driver Prempal reached at the back side of Maxfort School, Sector-7 Dwarka, and stated that they met SI Anil and Constable Rajesh. He further stated that on cursory observation of the spot, blood was found on the side of the road along with 2 empty cartridges and they could not find any eye witness. He stated that IO call the control room and the deceased was taken to Ayushman Hospital by PCR. He stated that he remained at the spot on the instructions of the IO for the protection of the mauka and IO returned along with staff and eye witness Gaurav Bhardwaj and further stated that the crime team was also reached at the spot wherein they inspected the site and took photographs. He stated that the IO prepared the rukka and handed over to him for registration of FIR and after State Vs. Joginder Solanki @ Ravi and Ors. No. 39/99 SC No. 441199/2016 getting the FIR registered, he returned back to the spot along with the copy of FIR, original rukka and certificate under Section 65 B of Indian Evidence Act. He stated that the IO lifted two empty cartridges lying at the spot, blood which was lying on the spot, which were put in different plastic containers and were closed with the help of a surgical tape and sealed with the seal of AKS. He further stated that thereafter, CCTV cameras was found installed at House No. A-4, Sector -7 Dwarka, near the spot and owner of the spot was found to be Ramesh Kumar Vats, who was the occupant of that house. He further stated that the CCTV was having the video of the incident and the same was put in a white pullanda and sealed with the seal of AKS, which was seized by the IO vide seizure memo Ex.PW-32/D. He stated that on 02.02.2016, he along with IO SI Anil, Constable Rajiv went to DDU Hospital mortuary where the identification of the dead body by the father and brother of the deceased. He added that the postmortem of the dead body was conducted at the request of the doctors and after the postmortem, the doctor handed over the sealed pullandas along with seal of the hospital along with three sample seals to the IO, which were seized vide seizure memo Ex.PW-32/C. He stated that he then along with IO, SI Anil, Constable Pritam, Constable Dinesh and Constable Rajeev again proceeded from the police station for the search of the accused persons and went to Sector -7 Dwarka, where IO also called complainant Gaurav Bhardwaj and they went to Ramphal Chowk, where the secret informer met them. He added that the secret informer told him that about the whereabouts of the State Vs. Joginder Solanki @ Ravi and Ors. No. 40/99 SC No. 441199/2016 accused persons and they went to the park of Sector-8, Block-A, Dwarka, where one i-10 car was found parked and all the three accused persons were found sitting there. He stated that the complainant identified the assailants, who were accused Joginder Solanki, Amit @ Rocky and Dheeraj Vats and added that all the three accused persons were arrested vide arrest memos Ex.PW- 1/C1, Ex.PW-1/C2 and Ex.PW-1/C3 respectively. He stated that the disclosure statement of accused Dheeraj Vats, Joginder Solanki and Amit @ Rocky were Ex.PW-32/H, Ex.PW-32/G and Ex.PW-32/I respectively. He stated that the accused persons led them to the spot and at their instance, spot identification memo was prepared which is Ex.PW-32/J prepared by the IO. He identified all the accused persons present before the court and further stated that on 08.02.2016, he along with IO, SI Nanang Ram and Constable Pankaj reached at the spot, where AATS South West Officials produced accused Manish @ Chola (abated) before the Ld. MM. He stated that the IO took permission from court to interrogate the accused Manish @ Chola (abated), which was allowed by the court, thereafter accused Manish @ Chola (abated) was interrogated and arrested vide Ex.PW-35/A, the disclosure statement of accused Manish was Ex.PW-35/B. He deposed that the pointing out memo of the spot made at the instance of accused Manish @ Chola (abated) Ex.PW-35/C. The witness identified the DVR Ex.PW-23/4, the case property i.e. cartridges collectively Ex.P3 and the earth seized Ex.P4.
40.1 During his cross-examination conducted on 21.01.2021 by State Vs. Joginder Solanki @ Ravi and Ors. No. 41/99 SC No. 441199/2016 Ld. Counsel for accused Anil Kumar Vats, he stated that he could not tell whether the statement of Gaurav Bhardwaj was recorded at the spot or not and added that however, the IO was making some queries from him. He further stated that at about 06.30 PM, he left the spot and went to PS with rukka for getting the FIR registered and Gaurav Bhardwaj was with the IO till the time he remained at the spot. He stated that they searched the CCTV camera and one CCTV Camera was found which was seized by the IO. He further stated that he had seen the CCTV footage and he did not remember whether the CCTV footage was shown by the IO to the complainant.
40.2 He stated that during his cross-examination by Counsel for accused Dheeraj Vats, that after reaching the spot they made enquiry but no one came forward to become eye witness. He admitted that there were shops and residential area at the spot but IO did not record statement of any public person in his presence. He further stated that he denied the suggestion that no secret informer met them or accompanied them to Sector -8 Dwarka. He denied the suggestion that accused Dheeraj Vats was arrested forcefully from his house on 02.02.2016 at about 00.06 AM at night. He stated that no incriminating article was recovered from the accused and admitted that the place of incident was already in their knowledge prior to the arrest of the accused persons.
40.3 During his cross-examination by counsel for accused Amit @ Rocky, he stated that he did not remember whether any site State Vs. Joginder Solanki @ Ravi and Ors. No. 42/99 SC No. 441199/2016 plan of the arrest of the accused persons was made by the IO or not. He denied the suggestion that accused Amit @ Rocky was lifted from his house.
41. PW-36 ASI Manoj Kumar deposed that on 07.02.2016 he as working as MHC (M) and on that day ASI Shyam Singh of AATS, South West District had deposited a sealed jar/ pullanda with seal of SS containing one pistol and three live cartridges with him in Malkhana and ASI Shyam Singh deposited a scooty bearing NO. DL 9SAW3251 and personal search articles of accused Manish @ Chola (abated) and he made entry in Register NO. 19 vide entry No. 594 i.e. Ex. PW36/A (OSR). He also deposed that on 12.02.2016, the aforesaid pullanda was sent to FSL, Rohini through Ct. Ashok Kumar vide RC NO. 37/21/16 i.e. Ex. PW36/B and after returning from the FSL, Ct. Ashok Kumar handed over to him the receipt, copy of which is Ex. PW36/C. He deposed that on 23.02.2016, the scooty was transferred to PS Dwarka South through Ct. Dinesh Kumar vide RC NO. 44/21/1/16 i.e. Ex. PW36/D and that on 26.05.2016, result of FSL was received along with sealed parcel through Ct. Seema and entry NO. 594 was made in Register NO. 19. He further stated that on 13.08.2016, the abovesaid parcel was sent to PS Dwarka South through Ct. Karamveer Singh vide RC NO. 125/21/16 i.e. Ex. PW36/E (OSR). He stated that till the case property remained in his custody, the same was not tampered with. He denied the suggestion that during his cross examination by Counsels for accused Joginder Solanki and Amit @ Rocky State Vs. Joginder Solanki @ Ravi and Ors. No. 43/99 SC No. 441199/2016 that case property was tampered with before sending to FSL.
42. PW-37 ASI Maha Singh deposed that on 01.02.2016, he was working as MHC(M) at PS Dwarka South and on that date, Inspector Ajay Kumar, SHO deposited six sealed pullandas with seal of AKS with him in Malkhana and he made entry in Register no. 19 vide entry no. 944 to this effect, Ex.PW-37/A(OSR). He added that no 02.02.2016, Inspector Ajay Kumar sealed three pullandas with the seal of DDUH along with three sample seals, one can (make i10) No. DL-10CS-0505 and articles of personal search of three accused persons Joginder Solanki and Amit @ Rocky with him in the malkhana and he made entry in Register no. 19 with entry no. 947, Ex.PW-37/B(OSR). He stated that on 23.02.2016, Constable Dinesh Kumar deposited one scooty No. DL-9SAW-3251 (make Jupiter) along with key which he brought from PS Palam Village vide RC No. 44/21/16. He stated that he made entry in Register no. 19 in Serial no. 981, copy of which was Ex.PW-37/C(OSR). He further stated that on 13.08.2016, Constable Karamvir deposited one sealed pullanda with the seal of FSL which he made entry in Register no. 19 at serial no. 1501, copy of which was Ex.PW-37/B(OSR). He added that on 17.03.2016, from sealed pullandas and two sample seals pertaining to this case were sent to FSL Rohini(Ballistic Division) through Constable Anil Kumar vide RC No. 18/21/16 on the instruction of IO and SHO and the copy of RC No. 18/12/16 was PW-37/F(OSR) and after returning from FSL, Constable Anil handed him over the receipt of FSL, Ex.PW-
State Vs. Joginder Solanki @ Ravi and Ors. No. 44/99 SC No. 441199/2016 37/4(OSR). He also deposed that on 07.04.2016, one sealed pullanda and one hard disc were sent to FSL Rohini vide RC No. 30/21/16 on the instructions of IO and copy of RC No. 30/21/16 Ex.PW-37/H(OSR) and after returning from FSL, Constable Pankaj handed over the receipt Ex.PW-37/H(OSR). He further deposed that on 19.08.2016, a plastic jar sealed with FSL was sent to FSL, Rohini through Constable Surender vide RC No. 89/21/16 on the instructions of IO and SHO Ex.PW-37/H2 and after returning, Constable Surender handed over the receipt Ex.PW-37/H3. He also deposed that on 29.09.2016, five live catridges for requirement of test fire were sent to FSL through Constable Karambir vide RC No. 114/2/16 on the instruction of IO, Ex.PW-37/H4 and after returning from FSL, Constable Karambir handed over the receipt Ex.PW-37/H5. He stated that till the time, the case property remained in his custody the same was not tampered with.
During his cross-examination by counsel for Accused Joginder Solanki and Amit @ Rocky. He denied that the case property was tampered with before sending to FSL. He stated during cross-examination by Counsel for Accused Dheeraj Vats, he stated that entries in Register no. 19 were in his handwriting.
43. PW-38 SI Shyam Singh stated that on 07.02.2016, he was posted in AATS, Sector 16 Dwarka and on that day, he received a secret information that one person namely Manish @ Chhola (abated) who was involved in the murder of one Nikhil, in a case registered at PS Dwarka South would come near Masjid, Nangla State Vs. Joginder Solanki @ Ravi and Ors. No. 45/99 SC No. 441199/2016 Pur, Saad Nagar and he recorded the information in Rojnamcha vide DD No.7 and the attested copy of Rojnamcha was Ex.PW38/A. He deposed that a raiding party was constituted under the supervision of Inspector Raj Kumar constituting of him, SI Manoj, HC Vinod, HC Vijay, Ct. Amit, Ct. Anil, Ct. Jagat and Ct. Devender and they alongwith secret informer left the office of AATS at about 4.30 PM in two vehicles vide DD No.8, Ex.PW38/B. He stated that they reached near Takia Masjid, Saad Nagar, Mangla Puri Road at around 5.15 PM and he requested several public persons to join the raiding party but none of them joined. He added that at about 5.30 pm, one person came on a scooty bearing no.DL9SAW3251 at the spot from the side of Saad Nagar and on pointing of the secret informer, the said person was apprehended, who disclosed his name as Manish Chhola (abated since expired). He added that on searching of Manish @ Chhola by them, one pistol was recovered from the right side pocket of his wearing lower and the pistol was found loaded with three live cartridges. He stated that the cartridges were taken out from the magazine and he prepared the sketch of the recovered pistol of .32 bore and cartridge was memo Ex.PW1/A. He deposed that the recovered pistol and cartridge were kept in a transparent jar sealed with the seal of SS vide seizure memo Ex.PW1/B. He stated that he prepared the rukka Ex.PW8/C and sent Ct. Amit to PS Palam Village for registration of FIR and on the basis of rukka, FIR No.66/2016 was registered, which was assigned to ASI Shiv Kumar. He stated that from the spot, an information was given by him to office of AATS State Vs. Joginder Solanki @ Ravi and Ors. No. 46/99 SC No. 441199/2016 regarding apprehending of accused with illegal weapon which was recorded vide DD No.10 Ex.PW38/D. He added that he handed over the case property to ASI Shiv Kumar i.e. plastic jar containing pistol and cartridge and accused with scooty and the ASI Shiv Kumar seized the scooty vide seizure memo Ex.PW1/C. He identified the pistol as Ex.PW38/A, two live cartridges as Ex.PW38/B and empty cartridge as Ex.PW38/C. During cross-examination by the Counsel for accused persons Joginder Solanki and Amit @ Rocky, he stated that no chance prints were lifted from the alleged recovered pistol and that he had prepared documents Ex.PW1/A and Ex.PW1/B, the same were duly filled from point Y to Y1 and added except the particulars of FIR. He stated that there were shops near the place of apprehension of accused but no notice was served by him to any shopkeepers. He denied the suggestion, the recovery was planted from the accused. The said witness was not cross examined by the Counsel for any of accused persons.
44. PW-39 HC Ram Pratap deposed that on 07.02.2016 he was posted at PS Palam Village as Duty Officer and had recorded FIR No.64/2016 Ex.PW39/A u/s 25/54/59 Arms Act at about 7.30 pm on the basis of rukka presented to him by Ct. Amit. He added that after recording rukka, he made his endorsement Ex.PW39/B. He stated that he had issued certificate u/s 65B of Indian Evidence Act regarding the computerized copy of FIR Ex.PW39/C. During his cross-examination by Counsels for accused Anil Kumar and Dheeraj, he stated that it took about an hour in the entire process State Vs. Joginder Solanki @ Ravi and Ors. No. 47/99 SC No. 441199/2016 of registration of FIR including typing on computer and the entry in Rojnamcha was made by him at around 7.30 pm. He denied the suggestion that FIR was ante dated and ante timed.
45. PW-40 HC Vijay Singh deposed regarding the arrest of accused Manish @ Chhola (since abated). He added that ASI Shyam Singh had prepared a sketch of recovered pistol and cartridge vide memo Ex.PW1/A during his testimony in the court of Ld MM, Ex.PW40/A. He also stated that regarding seizure of case property. During his cross-examination by Counsel for accused Amit Kumar Vats, he stated that ASI Shyam Singh received secret information at around 4.10 pm with Inspector Raj Kumar in his presence. He stated that accused Manish @ Chhola (abated) was apprehended from Takia Masjid, Palam Saadh Nagar Road. He stated that at the spot he had signed the seizure memo of scooty, arrest memo, personal search memo and disclosure statement. During his cross-examination conducted on 26.02.2021, he stated that ASI Shyam Singh had directed the secret informer at the time spot to identify Manish @ Chhola and secret informer who pointed out towards the accused when he arrived. He denied the suggestion that no pistol was recovered from the accused and that the pistol was planted. He also denied the suggestion that all the documents were prepared at the police station and not at the spot. During his cross-examination conducted by the counsel for accused Joginder Solanki and Amit @ Rocky, he stated that no chance prints were lifted from the alleged recovered pistol. He denied the suggestion that no State Vs. Joginder Solanki @ Ravi and Ors. No. 48/99 SC No. 441199/2016 recovery was effected from the possession of the accused or that the same was planted upon him.
46. PW-41 Sh. Manoj, Addl. DCP-I deposed that on 29.06.2021 after perusing the documents placed before him including copy of FIR, statements recorded u/s 161 Cr.PC, copy of draft chargesheet, arrest memo and copy of ballistic report of FSL Rohini and he was satisfied that on 07.02.2016 accused Manish Solanki @ Chhola (abated) was in possession of one improvised pistol of 7.65 mm and 03 live cartridges without any valid license in contradiction of section 3 of Arms Act and he accorded sanction Ex.PW41/A. During his cross-examination by counsel for accused persons, he denied the suggestion that sanction was granted in mechanical manner.
47. PW-42 HC Amit Kumar also deposed on the lines of testimony of PW40 HC Vijay Kumar regarding arrest and apprehension of accused Manish @ Chhola (since abated). During his cross-examination by counsel for accused Joginder Solanki and Amit @ Rocky, he stated that FIR number was filled up later in Ex.PW40/A and Ex.PW40/B. He denied the suggestion that no recovery was effected from the possession of accused and the same was planted upon the accused. During his cross-examination by counsel for accused Anil Kumar Vats, he had taken position near shop and he had spent two hours at the spot before taking the rukka to the PS. State Vs. Joginder Solanki @ Ravi and Ors. No. 49/99 SC No. 441199/2016
48. PW-43 Inspector AK Singh deposed that on 01.02.2016, he was posted as SHO, PS Dwarka South and on receipt of DD no. 24A, he along with HC Shammi Kapoor and driver/Ct. Prem pal reached on the road behind Maxfort school, Sector 7, Dwarka in official gypsy at about 2.15 pm where SI Anil and Ct. Rajesh were found at the spot. He deposed that he noticed some blood lying in the side of the road and at some distance from the blood, two empty cartridges were lying. He stated that he could not find any eye witness at the spot and in the meantime, information was received from Police Control room that one person namely Nikhil in injured condition was admitted in Ayushman Hospital, Sector 12, Dwarka. He added that he collected the MLC of Nikhil who was declared brought dead and one person namely Gaurav Bhardwaj who was an eye witness was present in the hospital. He further stated that HC Deen Dayal handed over to me Rs. 200, one mobile phone, one white handkerchief, one small knife and one live cartridge stating that one live cartridge was found stuck in the clothes of deceased and other articles were recovered from the clothes of the deceased. He stated that he prepared a sketch of live cartridge, Ex. PW 26/A and the cartridge was kept on plastic container sealed with the seal of AKS. He added that the other articles were kept in a cloth pullanda and the pullanda was sealed with the seal of AKS and the dead body of deceased Nikhil was sent to Mortuary, DDU hospital through Ct. Rajesh. He also added that he recorded the statement of eye witness of Gaurav Bhardwaj, Ex PW 1/A and State Vs. Joginder Solanki @ Ravi and Ors. No. 50/99 SC No. 441199/2016 thereafter he along with Gaurav Bhardwaj and other staff came to the spot i.e. behind Maxfort School, Sector-7, Dwarka and he also called the crime team and the photographer at the spot. He stated that he prepared the rukka, Ex. PW 43/A and sent HC Shammi Kapoor to the PS with rukka for registration of FIR. He further stated that he inspected the spot and prepared the site plan at the instance of eye witness Gaurav Bhardwaj, EX. PW43/B. He added that after registration of FIR, HC Shammi Kapoor came back at the spot and handed over the copy of FIR and rukka to him. He state that he lifted the empty cartridges from the spot and prepared a sketch, EX PW 32/A. He stated that the empty cartridges were kept in a plastic container and the same was sealed with the seal of AKS, Mark 1 and he also lifted blood with the help of gauze from the spot and kept the same in a plastic container,Mark 2. He deposed that he also lifted blood mixed earth from the spot and kept the same in a plastic container sealed with the seal of AKS, Mark 3. He stated that all the three plastic containers Mark 1 to 3 were seized vide a common seizure memo, Ex. PW1/B. He added that he recorded the supplementary statement of Gaurav Bhardwaj and also recorded the statement of in-charge Crime Team and Photographer. He added that he noticed a CCTV footage was installed on a pole covering the road behind Maxfort School and made search for DVR which he found on house no. A-4, Chander Vihar.
48.1 During his examination in chief conducted on 03.03.2021, PW 43 deposed that on 01.02.2016 after knowing about the State Vs. Joginder Solanki @ Ravi and Ors. No. 51/99 SC No. 441199/2016 DVR, he went to H. No. A-4, Chander Vihar, Palam Extension, Sector 7 Dwarka where he met Ramesh Kumar. He added that on inquiry, Ramesh Kumar told him that he had got the CCTV camera installed on the pole on the main road behind Maxfort School and it's DVR was fixed at his house. He stated that the DVR was checked and the recording /CCTV footage of the incident was found. He added that the DVR along with adaptor was kept in a gatta box and the same as sealed with the seal of AKS and seized vide seizure memo Ex. PW 32/B. He stated that he recorded the statement of Ramesh Kumar and thereafter went along with the police team for the search of accused persons. He stated that on 02.02.2016, he along with SI Anil Kumar and HC Shammi Kapoor reached mortuary, DDU hospital and met Satya Prakash, father of the deceased and Nishant, brother of the deceased who identified the dead body of Nikhil. He stated that he recorded the statements regarding identification of the dead body and the request of postmortem was Ex. PW43/C and the form 25.35(1)(B) was Ex. PW43/D. He added that the inquest papers were handed over to the doctor and the post mortem of the dead body of the deceased was conducted. He stated that after post mortem, the doctor handed over the clothes of the deceased in a sealed polythene, blood in gauze piece in a sealed envelope and a sealed plastic polythene containing two plastic containers containing one bullet lead each (total 02 bullet lead) and all these were sealed with the seal of hospital. He added that the dead body of the deceased was handed over to Satya Prakash and he returned to the police station and deposited the aforesaid State Vs. Joginder Solanki @ Ravi and Ors. No. 52/99 SC No. 441199/2016 pullandas and sample seal of the Malkhana. He further stated that on the same day, 02.02.2016 in the evening, he along with SI Anil Kumar, HC Shammi Kapoor and other staff again went to the spot and he joined the investigation. He added that they made search for the accused persons and reached Ramphal Chowk and met a secret informer. He added that the secret informer informed that the accused persons were present in an i10 car in Sector 8, Dwarka. He added that they reached near a park, A block, Sector 8, Dwarka at about 6.30/7.00 pm and one i10 car was found there. He stated that the car was intercepted and accused persons Joginder Solanki, Amit@ Rocky and Dheeraj (correctly identified) were found in the aforesaid car. He added that complainant Gaurav Bhardwaj identified all the three accused persons and after making inquiries, they were arrested. He further deposed regarding arrest and apprehension of the accused persons and seizure of i10 car. He added that on 03.02.2016, an information was received from ASI Priyavart of Crime Branch regarding arrest of accused Anil Kumar Vats and on the same day, accused Anil Kumar was produced by ASI Priyavart in the court and he arrested the accused Anil Kumar in the case after taking permission of the court. He identified accused Anil Kumar Vats present in the court and added that Anil Kumar Vats was interrogated and his disclosure statement was recorded. He further deposed that on 04.02.2016 he along with SI Sandeep Malik, HC Virender and accused Anil Kumar Vats and Dheeraj Kumar started from PS and accused Anil Kumar Vats led them to the spot behind Maxfort School, Sector 7, Dwarka and pointed State Vs. Joginder Solanki @ Ravi and Ors. No. 53/99 SC No. 441199/2016 out to the place of occurrence and he prepared the pointing out memo at his instance, Ex. PW 31/A. He added that on 09.02.2016 accused Manish @ Chhola (abated) pointed out the place of occurrence behind Maxfort School, sector 7, Dwarka and on his pointing out, he prepared a pointing out memo which was Ex.PW-35/C. During his examination in chief conducted in 03.03.2021, PW-43/IO Inspector A.K Singh, stated that collected the copies of the relevant DD entries and certificates under Sector 65 B of the Indian Evidence Act. He stated that the report of the crime team, Ex. PW43/ H was prepared by SI Khajan Singh at the spot on 01.02.2016 in his presence and the same was handed over to him which he placed on record. He identified the case property Ex. P1(colly) and the DVR, Ex. PW 23/4. He identified the cartridge Ex. P2 (colly) and the two used cartridges, Ex. P3 (colly). He also identified the envelope containing some earth, Ex. P4.
48.2 During his cross examination conducted by Counsel for accused Anil Kumar Vats he stated that he did not remember the date when he recorded the statement of PW 9 and PW 10. He denied the suggestion that PW 9 and PW20 were implicated and arrayed by him as witnesses despite the fact that they were not the relevant witnesses. He stated that Gaurav Bhardwaj had disclosed the role of PW9 and PW10 in his subsquent statements. He stated that he did not remember why the aunt of the deceased had not been made a witness as Gaurav Bhardwaj had stated in his statement that he had done to the house of deceased's uncle State Vs. Joginder Solanki @ Ravi and Ors. No. 54/99 SC No. 441199/2016 and informed about the said incident to his Tai. He stated that he had found only one CCTV along with footage. He stated that one CCTV camera which was covering the spot , the DVR which was recording the spot was covered by that camera and he obtained the DVR only as it had CCTV which had been placed on record and added that the DVR had recordings of other cameras also which were also a part of the record. He stated that he did not remember the time when he found the alleged CCTV footage recording the alleged scene of crime. He also stated that he did not remember when, after how many days and where was the alleged CCTV footage covering the scene of crime shown to eye witness Gaurav Bhardwaj. He denied that the names of the accused persons were told to the eye witness Gaurav Bhardwaj by him and other police official at the time of showing him the alleged CCTV footage covering the scene of crime. He further stated that he did not remember after how many days from the date of incident were the statements of PW-3 Prashant Yadav and PW-4 Rahul Rajput were recorded by him. He stated that he came to know about the relevance of PW-3 and PW-4 from general inquiries from general questioning of people and CCTV footage. He denied the suggestion that only when the alleged CCTV footage covering the scene of crime was shown to PW3 and PW4, names of the accused persons were told to these witnesses. He denied the suggestion that he had recorded the statement of eye witness Gaurav Bhardwaj at PS Sector 9 Dwarka. He stated that PW Ramesh Kumar told him on the day of incident that he was the Uncle of accused Anil Kumar Vats. He State Vs. Joginder Solanki @ Ravi and Ors. No. 55/99 SC No. 441199/2016 stated that the scene of crime was inspected by him with Gaurav Bhardwaj on the date of incident. PW43/IO Inspector A.K Singh also stated during his cross examination that the unscaled site plan prepared at the instance eye witness Gaurav Bhardwaj was not signed by him as he did not remember to get it signed. He admitted that the alleged CCTV footage covering the alleged scene of crime had already been seen by him before the same was shown to Gaurav Bhardwaj. He stated that the alleged CCTV camera covering the scene of crime has been shown in the scaled site plan. He denied the suggestion that in Ex.PW12/A, the correct positions of the spots mentioned including the electric pole and the position where the blood was found and where two empty cartridges were lying has not been shown. He denied the suggestion that eye witness PW9 was in intoxicated condition on the date and time of incident and added that he was well oriented. He stated that he had inquired from the public person about the incident on the date of incident. He denied the suggestion that PW3, PW4, PW9 and PW10 were made witnesses only because they were supporting the case of the prosecution and were not relevant for the case at all. He denied the suggestion that accused Anil Kumar Vats had been falsely implicated. He stated that the DVDs were prepared by FSL from the footage of DVR sent by him to FSL. He stated that he reached the hospital from the spot at around 3.15 to 3.30 PM on and remained there for 1 to 1.15 hours. He stated that he found Gaurav Bhardwaj present at the hospital when he reached there. He stated that the statement of Gaurav Bhardwaj was recorded at Ayushman Hospital.
State Vs. Joginder Solanki @ Ravi and Ors. No. 56/99 SC No. 441199/2016 48.3 During his cross examination conducted on 08.03.2021 by Counsel for accused Dheeraj Kumar Vats he stated that during the recording of his testimony as PW 43, DVD no.1, Ex.PW 23/1 was played for some time due to slow computer. He also stated that DVD No. 1 was of a different camera covering different angle and for that reason the photo of any accused persons was not displayed till the time the DVD was played. He stated that he did not remember who had prepared the seizure memo of DVR and stated that he did not remember who exactly wrote the seizure memo but the same was written in his presence and signed in his presence by the witnesses. He admitted that the place from where he seized the DVR was having shops and residential area and he had not served notice to public persons who refused to join the investigation. He stated that the person who had handed over the DVR had refused to join and this fact was mentioned in the seizure memo, Ex. PW32/B, but on seeing the seizure memo, he stated that the same was not mentioned on it. He also stated that he did not remember whether the building A 24 having shop no 1, 2 and 3 belonged to the family of accused Dheeraj Kumar Vats and that Accused Dheeraj Vats was running a property dealing business and kiryana shop. He stated that he did not remember whether all the statements recorded under section 161 CrPC were recorded while sitting at PS. He admitted that the place of incident was already in his knowledge before the arrest of accused Dheeraj Kumar Vats and also admitted that no recovery was affected from accused Dheeraj after recording his State Vs. Joginder Solanki @ Ravi and Ors. No. 57/99 SC No. 441199/2016 disclosure statement. He denied the suggestion that when Gaurav Bhardwaj gave his consent to become eye witness in the present matter and then he was made a witness falsely. He denied the suggestion that when Gaurav Bharadwaj gave his consent to become a witness then all his signatures on all documents were taken at PS after four days and those were blank at that time. PW43 also stated that he did not give any notice to the office bearer of Maxfort School to provide CCTV footage. He also stated that no certificate under Section 65B of the Indian Evidence Act was taken when the copy of the CCTV footage was made in the laptop from the DVR. He also stated that no witness could be found during the course of investigation to trace out the witness who could depose about the alleged conspiracy dated 31.01.2016 and stated that location of accused persons was there for proving conspiracy as per their mobile number. He stated that the location in CDRs , Ex. PW 25/B to Ex. PW 25/J were in coded form and the same were not decoded.
48.4 During his cross examination conducted on 08.03.2021, PW 43-Inspector A.K. Singh stated that in Ex. PW 26/B at serial no. 3 a small knife was mentioned but the sketch of the same was not in the judicial record. It is further submitted that Ex. PW 26/A did not bear the date of its preparation. He stated that the car was recovered at the instance of accused Joginder Solanki and Amit @Rocky. He also stated that pointing out and call records were there against accused persons Joginder Solanki and Amit @Rocky. He also admitted that there was no direct State Vs. Joginder Solanki @ Ravi and Ors. No. 58/99 SC No. 441199/2016 evidence qua conspiracy against accused Joginder Solanki and Amit @ Rocky. During the examination in chief of the said witness conducted thereafter on 20.09.2023, a closed taped parcel bearing FSL no. FSL -2016/CFU-2605 was taken out from the court file and the same was opened containing DVD 2 and DVD
3. It was observed that it did not contain the court seal after being opened in the court on 14.09.2023. The DVD 3 was played on the laptop and footage of the date 01.02.2016 was played and shown to the witness.
48.5 In the CCTV footage at 13:16:57 hrs, one white color I-10 car is seen coming on the road behind Maxfort school Sector-7, Dwarka and stopped. The witness stated that this car belongs to accused Joginder Solanki present in the court today.
At 13:20:14 hrs, one person was coming out from the car from front co-driver seat and the witness stated that he was accused Joginder Solanki.
At 13:20:20 hrs, another person came out from the car from the left side rear seat behind the co-driver seat and the witness stated that he is accused Amit @ Rocky present in the court today.
At 13:20:34 hrs, one person came out from the car from the left side rear seat and the witness stated that he did not recollect the name of the said person and added that he was not an accused in this case. At the same time, another person is seen coming out from the right side rear seat and the witness stated that he was PW Rahul Rajput.
State Vs. Joginder Solanki @ Ravi and Ors. No. 59/99 SC No. 441199/2016 At 13:21:10 hrs, one person wearing greenish color top and blueish color jeans was seen coming towards the I-10 car of accused Joginder Solanki and at 13:21:50 hrs he entered in the car from front door and sit on front co-driver seat. Witness stated that the said person was accused Anil Vats @ Choti (present in the court today).
At 13:22:36 hrs, one person was coming wearing jeans and jacket towards the car from other side of the road towards the car i-10 of the accused Joginder Solanki and the witness states that he was accused Dheeraj Vats (present in the court today).
At 13:25:32 hrs, accused Anil Vats @ Choti was seen coming out from the car.
At 13:26:00 hrs, two persons came on a white color scooty on the road from the front side of the I-10 car and stopped behind the car. The witness stated that the person driving the scooty was deceased Nikhil and the pillion rider was PW Gaurav Bhardwaj. Thereafter, all the accused persons except Manish @ Chowla (since expired), deceased Nikhil, PW Gaurav Bhardwaj and PW Rahul Rajput were seen standing on the left side of the car and interacting with each other.
At 13:27:52 hrs, accused Dheeraj Vats was seen entering in the car from front door of left side and sitting on the front seat.
At 13:35:15 hrs, one person was seen coming out from the I-tan car from the driving seat and the witness states that he was accused Manish @ Chhola (since expired). After coming out of the car accused Manish @ Chhola was seen going other side of the road.
State Vs. Joginder Solanki @ Ravi and Ors. No. 60/99 SC No. 441199/2016 At 13:36:45 hrs, accused Manish @ Chhola was seen going towards the other accused persons, deceased and PWs, who were seen standing at some distance behind the car.
At 13:37:06 hrs, accused Dheeraj Vats was seen coming out of the car.
At 13:40:00 hrs, accused Manish @ Chhola (abated) was seen interacting with deceased Nikhil, accused Anil @ Choti was seen standing beside them.
At 13:41:00 hrs, accused Manish @ Chhola was seen taking out pistol from the pant of accused Anil @ Choti and at 13:41:02 accused Manish @ Chhola was seen firing from the pistol at the chest of deceased Nikhil.
In between 13:41:20 hrs to 13:41:59 hrs, accused Manish @ Chhola was seen shooting at deceased Nikhil and thereafter kicking deceased Nikhil.
48.6 The witness identified all the accused persons except Manish @ Chola (abated) during his deposition.
48.7 This witness was cross examined on 04.10.2023 by Counsel for accused Dheeraj Vats wherein he stated that he did not remember the date, but he had given the request in writing to Director, FSL as per directions of the court. He stated that he came to know about the role of the accused persons during investigation when he recorded the statement of witness and from enquires. He denied the suggestion that the CCTV footage was State Vs. Joginder Solanki @ Ravi and Ors. No. 61/99 SC No. 441199/2016 retrieved from the CCTV cameras installed on the house of PW14 and he did not know whether the CCTV camera installed on the pole and CCTV camera installed on the house of PW14 are of the same make and company. He admitted that after watching the CCTV footage, the DVR was seized and sealed on the same day and he did not remember the date and timing of sealing the DVR. He admitted that on 13:33:22, Rahul Rajput was seen talking to accused persons and other public persons after getting down from the car.
48.8 The witness was also cross examined by Counsel for accused Dheeraj Vats on 26.10.2023 wherein he stated that he did not remember whether the person in blue shirt who had been made a witness was Prashant and stated that PW Prashant and Rahul were seen getting out of the i10 car at the relevant time but were not made accused as he did not find any role qua them to make them as an accused.
48.9 The said witness was also cross examined on 30.10.2024 by counsel for accused Anil @ Chotti he stated the he did not remember after how much time, HC Shammi returned along with FIR. He denied the suggestion that he could not tell the details of the particular witness, who had told him that accused Anil @ Vats was pretending to stop accused Manish and admitted that after 13:41:18 hrs, accused Anil was seen to be going away from accused Manish and away from the spot and after that he was not visible in the CCTV footage. He denied the suggestion that the State Vs. Joginder Solanki @ Ravi and Ors. No. 62/99 SC No. 441199/2016 DVR was tampered with while making a copy of it.
49. An application under Section 311 Cr.P.C was moved on 30.01.2024 on behalf of Ld. Addl. Public Prosecutor seeking recall of PW-23 Vivek Kumar, FSL expert and the official concerned of FSL Rohini who prepared the duplicate DVD No. 2 and DVD3 as mentioned in the letter dated 17.04.2023 of Director FSL with respect to the certificate under Section 65 B of the Indian Evidence Act.
49.1 The said application was heard and allowed vide order dated 02.02.2024 and on 06.02.2024 deposition of PW-44 Rohan Sharma, Junior F/ACE (CFD), FSL Rohini, New Delhi was recorded. The said witness PW-44 during his examination in chief deposed that in April 2023, he had prepared the duplicate copy of DVD vide annexure DVD2 and DVD3 pertaining to this case in the office record by using forensic software and hardware tools on Forensic Work Station. He further stated that the content of duplicate copy of annexure DVD2 and DVD3 were a true reproduction of the retrieved data and he also certified that at the time of duplicate forensic workstation was under his control and was working properly during the process and there was no distortion in accuracy of the data. He stated that his certificate under Section 65 B of the Indian Evidence Act regarding DVD2 and DVD3 were Ex.PW-44/A and the said witness also identified the two DVDs, DVD3, already Ex.PW-43/PXI and DVD2 as Ex.PW-44/PXI. During his cross-examination by Counsel for Accused persons, Joginder Solanki and Amit @ Rocky wherein State Vs. Joginder Solanki @ Ravi and Ors. No. 63/99 SC No. 441199/2016 he admitted that at the time of preparation of Ex.PW-43/PXI and Ex.PW-44/PXI, no certificate under Section 65B of Indian Evidence Act was given by him and he also admitted that Ex.PW-44/A bears the date as 05.02.2024. During his cross- examination by Counsel for accused Dheeraj Vats, he denied the suggestion that Ex.PW-43/PXI and Ex.PW-44/PXI were prepared at the instance of IO and added that they were prepared on the directions of the court. He denied the suggestion that above said exhibits were manipulated by him or that he had prepared a false report regarding the same.
49.2 During his cross-examination by counsel for accused Anil @ Choti, he stated that one set of DVDs were kept in the office record and this fact was not mentioned in his certificate Ex.PW- 44/A. He denied the suggestion that Ex.PW-44/A was given in a mechanical manner or that Ex.PW-43/PXI and Ex.PW-44/XI were manipulated at the instance of IO.
50. On completion of prosecution evidence, the statement of accused persons were recorded firstly on 24.11.2021, where they denied having any knowledge of the incriminating evidence against them, which had been led during trial. They further stated that they had been falsely implicated.
51. Supplementary statement of all accused persons under Section 311 Cr.P.C on 08.11.2023, wherein the accused persons denied having knowledge qua the CCTV footage and the State Vs. Joginder Solanki @ Ravi and Ors. No. 64/99 SC No. 441199/2016 incriminating evidence stated on behalf of PW-43 IO Inspector A.K Singh.
52. Supplementary statement of all accused persons was also been recorded under Section 313 Cr.P.C on 13.02.2024. During their supplementary statement under Section 313 Cr.P.C, all the accused persons denied knowledge of retrieval of data from DVR Ex.PW-23/1, Ex.PW-23/2 and Ex.PW-23/3 and regarding the certificate under Section 65 B of Indian Evidence Act.
53. After the recording of statements under Section 313 Cr.P.C only accused Dheeraj Vats opted to lead defence evidence and during the stage of Defence Evidence he examined the following witnesses:-
54. DW1 ASI Nirbhay Singh deposed that he was a summoned witness and the record related to calls dated 02.02.2015 at control room have become obsolete and therefore, the electronic data was unavailable and could not produced as mentioned in order dated 22.01.2020, copy of which was Ex. DW1/A. During his cross examination by Ld. Additional PP for the state he stated that he could not tell about any information of the three calls received on 02.02.2015 and he could also not tell who was the informant, what was the subject matter or who was the alleged person related to the call.
55. DW2 Manoj Kumar, Statistical Assistant, Rao Tula Ram State Vs. Joginder Solanki @ Ravi and Ors. No. 65/99 SC No. 441199/2016 Memorial Hospital deposed that he had brought the summoned record, i.e. the MLC bearing no 000520 of Rohit, Ex. DW2/A. He was cross examined by Ld. Additional PP for the state wherein he stated that the MLC was not prepared in his presence. He stated that as per record, there was nothing about the presence of public persons with the injured Rohit at the time of MLC . He admitted that the injuries opined were simple.
56. DW3 Rohit Kumar deposed that on 02.02.2016 he was in house and the bell rang. He stated that when he opened the door, two persons were standing in civil clothes and asked him about Dheeraj. He stated that forcefully tried to enter the house and when he tried to stop them, they started beating him. He added that in the meantime, his father called 100 number and 2-3 police officials also reached at his home and took his brother Dheeraj from the house in a police vehicle. He added further that after calling three times, PCR reached his house and took him to Rao Tula Ram Memorial Hospital for his treatment. He stated that the PCR calls were Mark A, Mark B and Mark C and these calls were made by his father Subhash Chand. The said witness was cross examined by Ld. Additional PP for the State , wherein he stated that he could not tell as to whether the alleged two persons who were found by him when he opened the door were police personnel or civilians. He admitted that at the time of MLC, he was under the influence of alcohol. He denied the suggestion that his brother Dheeraj was apprehended and arrested by the police on 02.02.2016 at around 6.30/7.00 pm from near A park, A State Vs. Joginder Solanki @ Ravi and Ors. No. 66/99 SC No. 441199/2016 Block, Sector 8, Dwarka with accused persons Joginder Solanki and Amit @ Rocky. He also denied the suggestion that after knowing about the arrest of his brother Dheeraj, false and frivolous calls were made to the police on the night to create doubt regarding his arrest in the present case.
57. DW-4 Subhash Chand deposed that he had brought the documents regarding property bearing no A-34, Chander Vihar, Palam Extension, Part -I , New Delhi -110045, Ex. DW4/A (colly) and the electricity bill installed at the said property was Ex.DW4 /B. He stated that the said shop was given to accused Dheeraj to run a departmental store, which was run by him till 2016. During his cross examination by Ld. Additional PP for the state he stated that he did not have any document of the said shop in the name of accused Dheeraj. He stated that accused Dheeraj was not filing any income tax return.
58. On completion of defence evidence, final arguments were heard.
59. Ld. Additional PP for the state argued that the prosecution had been able to establish and prove its case. It is submitted that there was sufficient evidence on record to show that the accused persons pursuant to a criminal conspiracy and common intention had fired two gunshots on the deceased Nikhil and it was prayed that the accused persons be convicted in the present case.
State Vs. Joginder Solanki @ Ravi and Ors. No. 67/99 SC No. 441199/2016 59.1. Counsel for Complainant argued during the stage of final arguments that in furtherance of the common intention the accused persons, accused Manish Chhola (abated) fired two gunshot injuries on the deceased Nikhil out of taking the gun from the pants of accused Anil Kumar Vats @ Choti. It is argued that all the accused persons had arrived in the car of accused Joginder Solanki and the criminal conspiracy was hatched on 31.01.2016 between all the accused persons which has been corroborated by the CDR of the mobile phones of the accused persons. It is submitted that there was sufficient prima facie evidence on record to establish the guilt of the accused persons in the murder of deceased Nikhil.
59.2. Per contra, it was argued on behalf of counsel for Accused persons Joginder Solanki and Amit @Rocky that there was no incriminating evidence on record to prove that the accused persons were involved in any such criminal conspiracy as alleged. It is further submitted that the accused persons have been falsely implicated and that the prosecution has been not able to show there role in the commission of the said offence.
59.3. It was argued on behalf of counsel for accused Dheeraj Kumar Vats has argued that accused Dheeraj has been falsely implicated. He further submitted that the testimony of complaint/eye witness cannot be relied upon has the same was having major contradictions. He further argued that PW3 and State Vs. Joginder Solanki @ Ravi and Ors. No. 68/99 SC No. 441199/2016 PW-4 Prashant and Rahul respectively who were also present at the spot have not supported the case of the prosecution. It is argued that the the accused persons are resident of the locality and are known to each other and therefore, their locations may have been the same at the time or before the incident It is further alleged that the accused Dheeraj Kumar Vats was arrested from his home on 02.02.2016 at about 00:33:26 hrs and DW-3 has corroborated the same during testimony and there was also some scuffle between DW-3 Rohit and the police officials, pursuant to which Rohit received injuries and he also produced his MLC in this regard. He submits that there was no incriminating evidence against accused Dheeraj Vats and hence, he be acquitted.
59.4. Counsel for accused Anil Kumar Vats argued at the time of final arguments that the Prosecution has been unable to prove its case. He also argued that the PW2 Gaurav Bharadwaj was not a credible witness and could not be relied upon. He stated that PW1 Gaurav Bhardwaj has himself stated during his cross examination that he was in intoxicated condition and that even in the PCR call made by him, it has been stated that two gun shot injuries were fired upon the deceased and the name of the assailants has not been provided. He further argued that the CCTV footage was neither recovered in the presence of PW 1 Gaurav Bhardwaj or was even shown to him. It was argued that the CCTV footage was neither a reliable piece of evidence or proved in accordance with law. It was also argued that it was the accused Manish @ Chola (abated) who due to excessive State Vs. Joginder Solanki @ Ravi and Ors. No. 69/99 SC No. 441199/2016 drinking, fired gunshots on the injured and even the alleged weapon of offence was recovered from the possession of accused Manish @ Chola (abated). It is stated that site plan does not bear the signatures of PW1 though as per the prosecution it was prepared at his instance and also does not provide the positions of the accused and the deceased. It is submitted that in the absence of any incriminating evidence the accused Anil @ Choti be acquitted in the present case as there were contradictions on record and even the Certificate under Section 65 B of Indian Evidence Act was not properly proved on behalf of the Prosecution and the CCTV footage was not proved.
60. Arguments heard as advanced by Counsels for all the parties. Record perused. Considered.
61. In the present case, law was set into motion after a PCR call was received on 1st February, 2016 about a firing incident. On reaching the spot i.e. road behind Maxfort School, Sector-7, Dwarka, New Delhi police officials found two empty cartridges and blood lying on the road and found that the injured had been taken to Ayushman Hospital. The injured, Nikhil was declared dead by the doctors.
Deposition of Eye Witnesses.
62. The prosecution in support of its case examined Gaurav Bharadwaj as PW1. He was present along with deceased Nikhil at the time of incident and had gone with him firstly to the house State Vs. Joginder Solanki @ Ravi and Ors. No. 70/99 SC No. 441199/2016 of accused Anil @ Chhoti and thereafter to the spot i.e. behind Maxfort School, Sector 7, Dwarka where the said incident took place. Careful and meaningful reading of the testimony of the said witness Gaurav Bharadwaj reveals that he has stated that at around 1.00 pm he received call from Nikhil on his mobile number, which he did not remember and he reached Gali no.4, Mahavir Enclave where he met Nikhil (deceased) who told him that accused Anil @ Choti was him to reach his house to have some conversation. This witness further deposed that he along with Nikhil (deceased) went to accused Anil @ Choti's house in a scooty. The said witness further stated that on reaching the house of accused Anil @ Choti, they came to know that accused Anil @ Choti was at his shop and so they went to his shop situated at the backside of Maxfort School, Sector 7, Dwarka. He added that on reaching the spot, they found one i-10 car stationed on the road and accused Manish @ Chhola (abated) was drinking in the said car. He identified accused persons Dheeraj Vats, Rocky and Ravi (Joginder Solanki) standing near the car and stated that all the persons started abusing each other. He stated that accused Manish @ Chhola asked Nikhil (deceased) to take out whatever he had and while Nikhil (deceased) was tendering apology, the witness stated that accused Manish @Chola (deceased) then fired at the head and chest of deceased Nikhil after taking out the pistol from the possession of accused Anil @ Choti which he was carrying. He stated that after firing accused Manish @ Chhola (abated) kicked deceased Nikhil and also threatened the said witness (Gaurav Bhardwaj). It is significant to State Vs. Joginder Solanki @ Ravi and Ors. No. 71/99 SC No. 441199/2016 mention that the said witness during his cross examination stated that he along with deceased Nikhil went to the house of accused Anil @ Choti at around 1-1.30 pm where they met the mother and cousin of accused Anil @ Choti. He added that he could not tell the number from which deceased Nikhil received the missed call on the mobile as he was not there at that time and also admitted that he did not call back on the said number in his presence. He added that deceased Nikhil had told him that he had received a missed call. During his cross examination conducted on 17.12.2016, he stated that accused Dheeraj was standing on the other side of the road and at that time, he had taken capsule of intoxication and was not in his complete senses. He also stated that he did not know whether accused Manish was having any weapon or not at the time when he was talking to Nikhil. He also stated that he did not remember the number from which he had called 100 number and added that he had destroyed the SIM on the very same day. He admitted that he was detained at the police station for two days and that the police had taken him to the place of occurrence only once, i.e. on the day of incident. He admitted that his signatures were taken on the documents at the police station after four days. He also stated that he made his statement under the pressure of the family of the deceased. He also stated that there were many persons present at the spot and he did not know who had committed the murder of the deceased and he did not know as to who had fired upon the deceased Nikhil. It is also pertinent to mention here that perusal of the record reflects that when deposition of PW-1 Gaurav Bhardwaj was recorded by Ld. State Vs. Joginder Solanki @ Ravi and Ors. No. 72/99 SC No. 441199/2016 Predecessor of this Court vide order dated 30.11.2016, it has been categorically noted in the order sheet that the atmosphere in the court premises was not so conducive due to which the examination of PW-1 Gaurav Bhardwaj was deferred for that day on the request of Ld. Addl. PP for the State.
63. In Mahesh v. State of Maharashtra, (2008) 13 SCC 271, the Hon'ble Apex Court considered the value of the deposition of hostile witness and held as under:
"....if PW 1, the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigation officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW-1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavorable conduct of this witness to the prosecution".
64. In Rajendra & Anr. v. State of Uttar Pradesh, (2009) 13 SCC 480, this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable.
65. In this regard, the following observation of Hon'ble Supreme Court in case titled Paramjeet Singh @ Pamma Vs. State of Uttrakhand (decided on 27-09-2010) are relevant to be quoted:
:17. The fact that the witness was declared hostile State Vs. Joginder Solanki @ Ravi and Ors. No. 73/99 SC No. 441199/2016 at the instance of the public prosecutor and he was allowed to cross examine the witness furnishes no justification for rejecting en block the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (vide : State of Rajasthan V. Bhawani & Anr., (2003) 7 SCC 291).
66. The Hon'ble Supreme Court while deciding with the issue in Radha Mohan Singh @ Lal Saheb & Ors. V. State of U.P., (2006) 2 SCC 450, observed as under:
"....It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as a hostile and cross- examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof..."
67. In Inder Singh & Ors Vs. State of Delhi, 61 (1996) DLT 666, the Hon'ble High Court of Delhi in a case where the cross- examination held after a year and in the examination in chief, the witness fully supported the case of Prosecution, held that it was only due to the one year gap but scrutiny of the whole case does not prove that the Appellants were not guilty.
68. In Mahesh v. State of Maharashtra, (2008) 13 SCC 271, the Hon'ble Aped Court considered the value of the deposition of hostile witness and held as under:
"....if PW 1, the maker of the complaint has chosen State Vs. Joginder Solanki @ Ravi and Ors. No. 74/99 SC No. 441199/2016 not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigation officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW-1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavorable conduct of this witness to the prosecution".
69. In Rajendra & Anr. v. State of Uttar Pradesh, (2009) 13 SCC 480, this Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable.
70. Thus, perusal of the deposition of PW-1 reflects that he was firstly examined in chief on 30.11.2016 and on 15.12.2016 and 17.12.2016 his examination in chief was concluded and he was cross-examined by Ld. Addl. PP for the State on some material facts and thereafter, cross-examined by counsel for accused persons. Perusal of the testimony reflects that this witness, who had accompanied deceased Nikhil initially at the house of accused Anil @ Choti and thereafter gone to the spot with him on a scooty as the shop of accused Anil @ Choti was situated there, reflects that he was present with deceased Nikhil at all times prior to his being shot. This witness has stated categorically during his examination in chief that accused Manish @ Chola had fired on the chest of Nikhil after taking out pistol from the possession of accused Anil @ Choti, which he State Vs. Joginder Solanki @ Ravi and Ors. No. 75/99 SC No. 441199/2016 was carrying. Though, it has been urged on behalf of counsels for the accused persons that the testimony of this witness cannot be relied upon as this witness has stated during his cross- examination conducted on 15.12.2016, that he has deposed under the pressure of the family of the deceased and that he was intoxicated as he had taken capsule for intoxication, in the considered opinion of this court, the testimony of this witness cannot be treated as wholly useless and irrelevant for the case of the prosecution as apart from mere suggestions, nothing come on record during his deposition to suggest that the said witness was not reliable nor credit worthy as urged. When the said witness was examined at length on behalf of the prosecution, he did not state anything about being intoxicated. Furthermore, apart from stating that he was in intoxication due to medical reasons, no further explanation has been put forth by this witness to suggest what kind of medical exigency required him to take pills of intoxication. Also, apart from suggesting so, nothing more has been got forth on behalf of defence to prove that the witness was under intoxication on the day of incident for which reason, his evidence could not be relied upon. In the considered opinion of this court, the testimony of the witness must be read as whole in the light of other surroundings circumstances and other evidence on record.
71. In the present case, the prosecution has also examined PW- 3 and PW-4 namely Prashant Yadav and Rahul Rajput respectively, who were also present at the spot along with the State Vs. Joginder Solanki @ Ravi and Ors. No. 76/99 SC No. 441199/2016 accused persons, Gaurav Bhardwaj and Nikhil at the time of incident on 01.02.2016. It is significant to mention that PW-3 has deposed that he along with PW-4 Rahul Rajput went to Ramphal Chowk, Snooker Point to play snooker on 01.02.2016 at about 09.00 AM and after reaching at the spot they met accused Amit @ Rocky, from where all three of them were went for drinking at Vardhanman Mall, Sector -7, Dwarka. He stated that they also went to Solanki property, where they met Ravi @ Joginder Solanki. He further deposed that when they went in I-10 car to Sector-23, there accused Manish @ Chola (abated) joined them and at Sector-23 from wine and beer shop and they purchased whisky. He further stated that they went to Kakrola mod to buy clothes for accused Manish, where they purchased more whisky and drank the same in the moving car while reaching behind Maxfort School, Dwarka Sector-7. He stated that while sitting in the car accused Dheeraj was talking to accused Manish (abated). He added that he, Rahul, accused Amit, accused Joginder Solanki were standing outside and in the meanwhile two persons came on the scooty. He stated that he was drunk and he and accused Amit went to the other side of the road to smoke cigaratte, where he heard a cracker like sound and on turning saw accused Manish @ Chola (abated) and Anil @ Choti grappling with each other and saw pistol in the hand of Manish @ Chola (abated). He stated that since his face was on the other side, he had not seen who had fired from the pistol. It is pertinent to mention that this witness denied the suggestion that accused Manish @ Chola (abated) had taken out the pistol from the pant of accused Anil @ Choti and State Vs. Joginder Solanki @ Ravi and Ors. No. 77/99 SC No. 441199/2016 fired it on the chest of Nikhil and added that he was standing across the road and did not see the same. The witness further stated on his statement recorded on 26.02.2016, and after 1-2 days of the murder he was shown the CCTV footage by police on mobile phone.
72. PW-4 Rahul Rajput, deposed that he along with PW-3 Prashant were seated on the rear seat of the car and Prashant introduced him to a person seated on the front seat of the car but did not disclose their names. He further stated that they started roaming in Dwarka and reached back to Ramphal Chowk to Maxfort School market and everybody came out of the car. He stated that he was standing on the other side of the road and bought falsa fruit for Rs. 10/- and went back to his home at Indra Park in a TSR.
The witness turned hostile and did not say anything.
73. With respect to the deposition of PW-3 Prashant Yadav and PW-4 Rahul Rajput, it is seen that they have resiled from their initial statements given during investigation under Section 161 Cr.P.C. However, merely because the witness PW-3 and PW-4 have not supported the case of prosecution, the testimony of PW-1 cannot be disregarded in the facts and circumstances of the present case. It is a settled law that it is not the quantity but the quality of the witness that matters. The same proposition is provided in Section 134 of the Indian Evidence Act. Reliance is placed on the judgment of Munna Lal Vs. State of UP in Crl.
State Vs. Joginder Solanki @ Ravi and Ors. No. 78/99 SC No. 441199/2016 Appeal No. 490 of 2017 dated 24.01.2023, which reads that no particular number of witnesses shall in any case be required for the proof of any fact. Hence, this court in the aforesaid facts and circumstances, finds the testimony of PW-1 Gaurav Bhardwaj as reliable in the present case.
74. In the present case, the counsels for the accused persons have urged that PW-1 Gaurav Bhardwaj as a credible witness and further that even the CCTV footage could be relied upon being not properly proved in evidence. The Counsels for accused persons have also urged that PW-3 and PW-4, who were allegedly present along with accused persons not supported the case of the prosecution. It has also been agitated on behalf of the Defence counsels that the accused persons have been falsely implicated and the investigation in the present case had not been conducted properly having several material contradictions.
Recording of footage of CCTV Camera.
75. It is also significant to mention that incident was captured by CCTV Cameras installed in the house of PW-14 Ramesh Kumar. Careful and meaningful reading of the deposition of PW- 14 Ramesh Kumar reflects that the witness resiled from his previous statement recorded under Section 161 Cr.P.C during investigation. However, during his cross-examination by Ld. Addl. PP for the State, the witness admitted that he was having a few shops in Sector -7 Dwarka and Sunil Pandit was son of his elder brother, who was murdered in the year 2015. He also State Vs. Joginder Solanki @ Ravi and Ors. No. 79/99 SC No. 441199/2016 admitted that he got installed CCTV camera installed in his house after the said incident, which were still installed in his house. The said witness further stated during his cross-examination by Ld. Addl. PP for the State that he could not say whether it was in his knowledge that on 01.02.2016 there was a murder committed in front of his shop which was captured in the CCTV camera or that the same was seen by the police. He denied the suggestion that the DVR of the CCTV camera system along with adapter was seized by the police vide seizure memo Ex.PW-32/B. He stated that the DVR did not belong to him. However, during the court question put to him whether he could produce the bill of DVR system, he stated that he may bring the same if he finds it and thereafter, on 27.01.2021, the said witness stated that he did not bring the bill since, he could not find it. The witness further stated that the spot where the incident happened was 40 sq yards away from his house and the building no. A24, was having shop no. 1, 2 & 3 which belongs to her younger brother Subhash Chand, who was the father of accused Dheeraj. He further stated that accused Dheeraj used to look after one shop. It is seen that the said witness is an interested witness being related to accused Dheeraj Vats and Anil @ Choti and has denied handing over and seizure of the same during investigation. He however has admitted during his cross-examination that the CCTV camera was installed at his house and the spot where the incident had happened was about 40 yards away from his house. Though, the Defence counsels have disputed the seizure of DVR, the same was seized by the IO and produced during trial, the concerned State Vs. Joginder Solanki @ Ravi and Ors. No. 80/99 SC No. 441199/2016 FSL witnesses have deposed that they had duplicated the CCTV footage from the said DVR into DVDs by retrieving the data, which was thereafter, played before this court during trial.
76. The DVR and its adapter were seized vide seizure memo Ex.PW-32/B by the IO during investigation and the seizure memo has been duly attested by ASI Shammi Kapoor and SI Anil Kumar. Though, it has been urged on behalf of Defence Counsels that recovery and seizure of DVR has not been proved as PW-14 turned hostile, it is significant to mention that the IO as PW-43 has stated during his cross-examination that PW-14 Ramesh Kumar refused to sign the seizure memo. The seizure memo, however, duly attested by the police officials who were the part of the team conducting the investigation and the original of the same is on record. The police officials, who have signed the seizure memo Ex.PW-32/B have been examined as witnesses and have deposed during trial regarding seizure of DVR from PW-14 Ramesh and no question have been put to them that the DVR was not seized from the house of PW-14 Ramesh Kumar on behalf of Counsels for Accused persons.
77. In the present case, the incident had also been captured in CCTV footage. As already reiterated earlier that since the CCTV footage could not be played during trial and therefore, the Ld. Predecessor of this Court, directed a copy of the CCTV footage available with the FSL be produced for examination before the court during trial. The Counsels for the accused persons have State Vs. Joginder Solanki @ Ravi and Ors. No. 81/99 SC No. 441199/2016 contended during final arguments that the same could not relied upon as the certificate under Section 65 B of the Indian Evidence Act has not been duly proved. It has also been agitated that the copy of the CCTV footage allegedly procured from FSL was not produced before the court along with the FSL result and therefore, the chances of same being tampered with could not be ruled out. It has also been argued that the DVR which was annexed along with chargesheet was blank, when played before the court and for this reason also the CCTV footage could not be relied upon.
78. In the present case, the DVR Ex.PW-23/4, was produced before the court during trial. The same was opened to be played before the court on 29.01.2024. The DVR was tried to be played with the assistance of the staff of computer branch and the same could not be played as it reflected a blank hard disk, which have been observed vide order 29.01.2024. The prosecution thereafter examined the concerned FSL officer who had duplicated this DVR as PW-44 Rohan Kumar, who deposed that he had prepared the duplicate copy of DVR available in the office record by using forensic software and hardware tools on forensic workstation and certified that at that time there was no distortion in the accuracy of the data. PW-23 Vivek Kumar, when recalled for his examination under Section 311 Cr.P.C also stated that he had retrieved the data from DVR Ex.PW-23/4 by using forensic software and hardware tools on forensic workstation and certified that at that time there was no distortion in the accuracy of the State Vs. Joginder Solanki @ Ravi and Ors. No. 82/99 SC No. 441199/2016 data. It is significant to mention that though it has been agitated during the final arguments on behalf of Counsel for accused Anil @ Choti that certificate under Section 65 B of the Indian Evidence Act has not been filed properly, it is however seen that no question pertaining to the same have been put to the aforesaid witnesses and no question pertaining to the proof or validity of such certificate has been put to the witness during his deposition during trial. In fact, all that has been put during cross- examination by Counsels for accused persons is that the certificate under Section 65 B of the Indian Evidence Act was prepared in a mechanical manner. It is also significant to mention that PW-44 during his cross-examination by Counsel for accused Dheeraj Vats has denied the suggestion that certificate under Section 65 B of the Indian Evidence Act regarding DVD no. 2 and DVD no.3 Ex.PW-43/PXI and Ex.PW-44/PXI respectively were manipulated at the instance of IO. It requires mentioning that both PW-23 and PW-44 who are concerned officials of FSL, during their deposition have proved the duplication of the CCTV footage by its retrieval from the DVR forensically, which has been provided in the DVDs played before the court during trial. No question or suggestion has been put forth to these witnesses that the duplication or the data retrieval from the DVR was not done properly and the Defence has not been able to prove that the said DVR was interpolated in any manner. In fact, PW-23 Vivek Kumar and PW-44 Rohan Sharma, who both worked with FSL and are the concerned officials who had forensically duplicated and retrieved the data from the DVR Ex.PW-23/4 have State Vs. Joginder Solanki @ Ravi and Ors. No. 83/99 SC No. 441199/2016 themselves issued a certificate under Section 65 B of the Indian Evidence Act. Therefore, in the considered opinion of this court, there is no occasion for this court to disbelieve their depositions. The record further reflects that the CCTV footage was played and relied upon by the Defence Counsels at the time of arguments on bail for the accused persons and therefore, the ground that the CCTV footage was manipulated is not tenable in the considered opinion of this court at this stage, in the given facts and circumstances of the case, when the same has been duly proved in accordance with law.
79. The Hon'ble Supreme Court in the judgment of Arjun Panditrao Khotkar vs Kailash Kushanrao Gorantyal AIR 2020 Supreme Court 4908, AIR Online 2020 SC 641 has held that electronic records required certificate under Section 65 B of the Evidence Act. In the present case the original source of CCTV footage which was DVR Ex.PW-23/4 was seized during investigation and produced before the court during trial. The aforesaid judgment further provides that the certificate under Section 65 B of the Indian Evidence Act can be produced at any stage and the same was produced after an application under Section 311 Cr.P.C was moved on behalf of Prosecution was allowed by the concerned witness qua the CCTV footage copied in the DVDs from the original DVR by the FSL forensically.
80. In the considered opinion of this court, in the facts and circumstances adumbrated above, it has been proved during trial State Vs. Joginder Solanki @ Ravi and Ors. No. 84/99 SC No. 441199/2016 that the DVDs played before this court at the time of deposition of IO PW-43 have been duly duplicated from the original DVR Ex.PW-23/4 without any interpolation and tampering by the FSL and the concerned official, namely PW-23 Vivek Kumar and PW- 44 Rohan Kumar had also issued a certificate under Section 65 B of Indian Evidence qua these secondary evidences i.e. DVDs and hence, the same are admissible in evidence.
81. The counsel for accused Anil @ Choti has also urged during final arguments that the CCTV footage was not played during the deposition of PW-1 Gaurav Bhadwaj and therefore the same cannot be relied upon as this piece of evidence was not put forth to the witness PW-1 Gaurav Bhardwaj to identify the accused persons. This arguments, in the considered opinion of this court, also does not hold much water since the CCTV footage was played during the deposition of IO Inspector A.K Singh/PW-43, wherein the entire sequence of events have been duly mentioned and the IO has also identified the accused persons from the said CCTV footage. It is significant to mention that during the cross-examination of the said IO, no question has been put forth by Counsels for any of the accused persons regarding their identity and presence at the spot.
82. In this context, perusal of the record also reflects that questions pertaining to the CCTV footage have been put in the statements recorded under Section 313 Cr.P.C of accused persons, wherein they denied the same being incorrect and stated State Vs. Joginder Solanki @ Ravi and Ors. No. 85/99 SC No. 441199/2016 that they did not know anything about the same. None of the accused persons have stated that the CCTV footage was tampered with in any manner their statements under Section 313 Cr.P.C.
83. In the present case, the entire incident can be duly seen by virtue of being recorded in the CCTV footage which was played in the court during the deposition of PW-43/IO Inspector A.K Singh, wherein it can be seen that:
At 13.13 hours, a white color i-10 arrived at place of occurrence. Four persons were in this car, two accused persons namely Ravi Solanki and Amit @ Rocky and two other persons came out from the said car. Only accused Manish Solanki @ Chola (abated) remained in the said car. At 13.20 hours accused Anil @ Choti came near that car and entered in the car. Accused Anil @ Choti came out from car after 5 minutes at 13.25 hours and after few seconds deceased Nikhil and complainant Gaurav Bhardwaj reached there on scooty back side of this car. Accused Anil @ Choti is then seen in CCTV footage with deceased and other persons. Accused namely Dheeraj Vats who reached at the spot on one motorcycle also entered in said the car. At 13.35 hours accused Manish Solanki @ Chola (abated) came out from car and after 1 minute he reached near other accused persons and witnesses and all persons stood together. At that time accused Anil @ Choti remained with witness. Accused Manish @ Chola (abated) tried to take fire arm from accused Anil @ Choti and it is seen that then accused Anil @ Choti had taken one step State Vs. Joginder Solanki @ Ravi and Ors. No. 86/99 SC No. 441199/2016 towards accused Manish @ Chola (abated) and then accused Manish @ Chola (abated) took fire arm from the possession of accused Anil @ Choti. It is further seen that accused Manish @ Chola (abated) fired on the chest of deceased Nikhil. Deceased Nikhil sat down near a rehadi (stall). At that time it is seen in the CCTV footage that accused Anil @ Choti tried to block the accused Manish @ Chola (abated) but after few seconds he left and stood aside and accused Manish @ Chola (abated) fired again in a minute at deceased Nikhil but the same misfired, later on he again fire in the head of the deceased.
84. Thus, the version put-forth by PW-1 that deceased Nikhil was called by accused Anil @ Choti to his house and thereafter when he and deceased Nikhil reached at his house, they were informed that accused Anil @ Choti was at his shop situated at back side of Maxfort School, Dwarka. He further stated that accused Manish @ Chola (since abated) fired on the chest and head of deceased Nikhil after taking out a pistol from the possession of accused Nikhil, which he was carrying. In the considered opinion of this court, the testimony of PW-1 recorded on 30.11.2016 and 15.12.2016 unfolds the events on the date of incident i.e. 01.02.2016. The credibility of said witness cannot be questioned in the facts and circumstances of the present case, moreso, when the same is also corroborated by the CCTV footage duly played before the court during trial through DVDs Ex.PW-43/PXI and Ex.PW-44/PXI.
State Vs. Joginder Solanki @ Ravi and Ors. No. 87/99 SC No. 441199/2016
85. Another ground agitated on behalf of Ld. Counsel for accused Anil @ Choti during final arguments that there is no incriminating evidence against accused Anil @ Choti as he had not handed over himself the alleged gun to co-accused Manish @ Chola (abated) and thus he could not have been said to be part of criminal conspiracy. However, perusal of the entire depositions and cross-examination of PW-1 Gaurav Bhardwaj reflects that no such question or even suggestion was put to the said witness regarding the role of accused Manish @ Chola (abated) in the said incident, moreso, when the said witness has specifically stated during his deposition in chief that accused Manish @ Chola had taken out gun from the possession of accused Anil @ Choti. The witness Gaurav Bhardwaj has not been subjected to any cross-examination qua this aspect by counsel for accused Anil @ Choti. This court also finds it pertinent to mention the factum that Accused Manish @ Chola (abated) had taken out gun from the possession of accused Anil @ Choti remains un- controverted and and unrebutted. It is significant to mention that perusal of the CCTV footage reflects that Accused Anil @ Choti firstly sat in the car with Accused Manish @ Chola (abated) and thereafter, was standing along with accused Manish @ Chola (abated) at the relevant time when accused Manish @ Chola (abated) took out gun from his pant. Hence, the imputation of knowledge on behalf of both the accused persons Manish @ Chola (abated) and Anil @ Choti can be inferred about the alleged pistol, which is the weapon of offence, being kept in the State Vs. Joginder Solanki @ Ravi and Ors. No. 88/99 SC No. 441199/2016 pant of accused Anil @ Choti. The CCTV footage further corroborates that accused Manish @ Chola (abated) took out pistol from the pant of the accused Anil @ Choti and nothing has been brought forth on behalf of Counsel for accused Anil @ Choti, as to how accused Manish @ Chola (abated) was aware that the alleged weapon of offence was in the pant of accused Anil @ Choti as the only ground agitated on behalf of Counsel for accused Anil @ Choti is that accused Anil @ Choti was not aware that accused Manish @ Chola (abated) would take out gun and shoot at the deceased. The inference of knowledge of accused Manish @ Chola (abated) about the availability of gun with accused Anil @ Choti is thus drawn.
Call Details Record
86. Another next line of argument taken on behalf of the accused persons is that the CDRs of the accused persons has not been duly proved and their location as per the CDR of their mobile phones of the accused persons so relied upon by the prosecution are in encrypted form which have not been explained by the prosecution. It has also been argued on behalf of counsels for accused persons that the criminal conspiracy qua the accused persons has not been proved as they all were residents of same locality.
87. In this context, it is significant to mention that the case of the prosecution is that all the accused persons hatched the criminal conspiracy on 30.01.2016 to commit murder of State Vs. Joginder Solanki @ Ravi and Ors. No. 89/99 SC No. 441199/2016 deceased Nikhil as brother of accused Anil @ Choti was murdered and they apprehended the involvement of deceased Nikhil in the said murder. It is further the case of the prosecution, that pursuant to the said conspiracy, accused Anil @ Choti called deceased Nikhil to meet him on the date of incident i.e. 01.02.2016 and thereafter, pursuant to the same, the deceased Nikhil was shot dead by accused Manish @ Chola (abated) after taking out a gun from the pants of accused Anil @ Choti. It requires mentioning, that PW-1 Gaurav Bhardwaj, has also corroborated that deceased Nikhil had told him that he had received a call from Anil @ Choti to reach his house to have some conversation.
88. The Hon'ble High Court of Delhi has held that in the case of Azad @ Gaurav Vs. State of GNCT of Delhi Crl. A. 593/2022 and Crl. M 1420/2022 dated 23.03.2023 that a CDR can only be used a corroborative piece of evidence and can't the sole basis of conviction. There is no denial that CDRs can only be a corroborated piece of evidence, however, it is seen that PW-1 has stated during his cross-examination that he was told by deceased Nikhil that accused Anil @ Choti had called him at his house and pursuant to the same, both the deceased and Gaurav Bhardwaj was firstly gone to the house of Anil @ Choti and thereafter to the shop of accused Anil @ Choti near the spot where the incident occurred. The counsels for accused Anil @ Choti and Dheeraj Vats has urged during final arguments that the CDRs have not been properly proved and the prosecution has been State Vs. Joginder Solanki @ Ravi and Ors. No. 90/99 SC No. 441199/2016 unable to prove any prima facie evidence to establish and prove conspiracy. In the facts adumbrated above, where the visit of Gaurav Bhardwaj and deceased Nikhil to the house of accused Anil @ Choti and thereafter, to the shop of accused Anil @ Choti on the day of incident where the said incident occurred are relevant to establish the events as averred on behalf of the prosecution. It is also significant to mention that Gaurav Bhardwaj was not cross-examined by Counsel for any accused persons qua the aspect that he had not visited the house of accused Anil @ Choti along with deceased Nikhil or that deceased Nikhil had not told him that accused Anil @ Choti had asked deceased Nikhil to meet him on the day of incident.
Site Plan
89. Another ground agitated on behalf of counsel for accused persons that the site plan Ex.PW-4/A has not been prepared properly and it has not been signed by any eye witness. In Jagdish Narain and Ors Vs. State of UP, 1996 (8) SCC 199 the prosecution evidence was sought to be disputed inter-alia on the ground of the failure of the Investigating Officer to indicate in the site plan from where the shot were fired makes the prosecution case doubtful. It was held that such failure did not detract from the truthfulness of the eye witnesses and only amounts to the omission on the part of the investigating officer. The court held that when a site plan was prepared by Investigating Officer, he prepares what he sees and observes that would be direct and substantive evidence.
State Vs. Joginder Solanki @ Ravi and Ors. No. 91/99 SC No. 441199/2016
90. In the present case, the place of incident is not disputed and admittedly the site plan was prepared after the dead body of deceased was taken to the hospital. The CCTV footage had been duly played during trial and in the considered opinion of this court, the place of incident prima facie corroborates with the site plan placed on record by the IO. Furthermore, it is a settled proposition of law that error, illegality or defect in the investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused. Reliance is placed on Union of India Vs. Prakash P. Hinduja, AIR 2003 SC 2612. Further, in the Munna Lal Vs. State of UP, Criminal Appeal No. 490/2017 dated 24.01.2023, the Hon'ble Supreme court has also held that the defective investigation is not always fatal to the prosecution where ocular testimony is found credible and cogent and mere defects in the investigating process by itself cannot constitute ground for acquittal.
91. It is an admitted fact that the CCTV footage was played during the deposition of the IO, which corroborated to the site plan prepared was prepared during investigation. Furthermore, PW-12 Constable Ramesh Kumar has stated during trial that he had taken rough notes and prepared scaled site plan Ex.PW-12/A. No question has been put during trial on behalf of the accused persons to the said witness regarding the preparation of the site plan. It is also pertinent to mention that Ex.PW-43/B is the site State Vs. Joginder Solanki @ Ravi and Ors. No. 92/99 SC No. 441199/2016 plan without scale which bears the signature of the IO and dated 01.02.2016, which is the date of incident. Perusal of both Ex.PW- 12/A and Ex.PW-43/B, reflects point A as a place where blood was lying and B as the place where two empty cartridges were found. The deceased Nikhil had already been taken to Ayushman Hospital and the site plan was prepared thereafter as per record. The incident and the place of occurrence has been duly corroborated by the CCTV footage and that of the testimony of PW-1 Gaurav Bhardwaj, who stated that he and deceased Nikhil had gone to the shop of Anil @ Choti, behind Maxfort School, Sector-7, Dwarka, where the said offence was committed.
Post-mortem Report and Cause of Death of Deceased
92. The deceased Nikhil in the present case was fired two gun shots by accused Manish @ Chola (abated) on the date of incident i.e. 01.02.2016 behind Maxfort School, Sector-9, Dwarka after taking out the pistol from the accused Anil @ Choti. The post mortem of the deceased was conducted on 02.02.2016 and perusal of the post mortem report Ex.PW-2/A of deceased Nikhil reflects that he had received the follow injuries:-
External Injuries :-
1) Firearm entry wound oval in shape, 0.8cm x 0.8 cm x cranial cavity deep, present over left side of back of head, placed 9.0 cm above and behind to the left mastoid process and 17.0 cm behind the left eyebrow.
Track of the projectile: The projectile was passed through scalp then fractured the left parietal bone (Bevelling was present on the State Vs. Joginder Solanki @ Ravi and Ors. No. 93/99 SC No. 441199/2016 inner table of skull) and entered in cranial cavity. In the cranial cavity it traverse through dura matter and lacerated the cortical and subcortical tissue of left cerebral regions. It then entered in the cortical region of parietal region of right cerebral hemisphere and lacerated both cortical and sub-cortical tissues. It then rupture the dura matter and fractured the right temporal bone (Bevelling was present on the outer table of skull). One bullet (1.2cm x 0.8cm) was found lodged outside the cranial cavity below the muscle. Massive effusion of blood was present all along the track. The direction of the track was downwards, forwards and towards right.
Firearm entry wound oval in shape, 1.7cm x 1.2 cm x cavity deep present over of chest placed 11.0 cm below the manubrium and 10 cm below and medial to right nipple, Abrasion collar of size 0.2 cm was present on the upper edge of the wound. Track of the projectile: The wound is directed right to left, antero-posterior piercing through the skin, subcutaneous tissue, fracturing right 4 rib and right fourth intercostal space, heart, pleura, lower lobe of left lung, diaphragm, abdominal cavity and one bullet (1.2cm x 0.8cm) was found lodged in left 7 intercostal space posteriorly. Massive effusion of blood was present all along the track. The direction of the track was downwards, backwards and towards left.
INTERNAL EXAMINATION.
HEAD Scalp/Skull/ Brain, Meninges & Vessels/ Base of skull: As described in injury no. 1.
State Vs. Joginder Solanki @ Ravi and Ors. No. 94/99 SC No. 441199/2016 NECK Hyoid Bone/Thyroid Cartilage / Cricoid Cartilage / Tracheal Rings & Mucosa Any Foreign Body in Trachea: NAD. CHEST (THORAX)
1. Ribs and Chest Wall: As described in injury no. 2.
2. Oesophagus :Mucosa was pale.
3. Pleural Cavities : As described in injury no. 2.
4. Lungs : As described in injury no. 2.
5. Heart and pericardial sac: As described in injury no. 2. Abdomen
1. Abdominal wall: As described in injury no. 2.
2. Peritoneal Cavity:As described in injury no. 2.
3. Stomach:
a. Contents: Contained 100 ml yellowish food material.
b. Mucosa : Pale.
4. Small intestine : Contains fluid and gases, walls NAD.
5. Large intestine, vermiform appendix: Contains faecal matter and gases, walls NAD.
6. Liver, gall bladder, biliary passages: Pale.
7. Spleen :Pale.
8. Kidney, renal pelvis, ureter : Both kidneys were pale. GENITAL ORGAN
1. Urinary Bladder: NAD.
2. Rectum : NAD.
3. Genital organs : NAD.
Spinal cord and vertebral coloumn NAD.
State Vs. Joginder Solanki @ Ravi and Ors. No. 95/99 SC No. 441199/2016 Preserved exhibits:
1. Recovered 02 (Two) Projectiles.
2. Blood in gauge piece.
3. Cloths.
Exhibits were packed, sealed with seal of "PM DDUH" and handed over to I.O.
OPINION The cause of death: deceased died due to hemorrhagic shock due to firearm injury produced by projectile of firearm. All injuries are antemortem in nature, fresh in duration and injury no. 1 and 2 are sufficient to cause death in ordinary course bef nature individually or collectively. The possibility of homicide cannot ruled out.
TOTAL No. of inquest nephre Eleven (11) papers enclosed with signature along with one x-ray film labelled as 8854 M Therefore, as per the post mortem injury no. 1 & 2 were sufficient in the ordinary course of nature individually and as well as collectively in the ordinary course of nature to cause death and PW-2 Dr. V.K Ranga has also stated that the possibility of homicide could not be ruled out.
93. The counsel for accused persons has urged during their submissions at the stage of final arguments that there was no tattooing or blackening found on the place of entry of bullet of the body of the deceased, which is usually found if fired from a close range and therefore, the prosecution has not been able to prove its case properly. In the considered opinion of this court, State Vs. Joginder Solanki @ Ravi and Ors. No. 96/99 SC No. 441199/2016 the factum that the deceased was fired and had received gun shot injuries is not a disputed fact and the same is corroborated with the CCTV footage as well as from the deposition of PW-1 which is the ocular evidence in the present case at hand, therefore, the ground urged by counsel for accused persons is not tenable. Moreso, postmortem report, Ex.PW-2/A also categorically provides that the cause of death was because of the fire arm injuries individually as well as collectively.
Recovery of alleged weapon
94. In the present case, it is seen that the alleged weapon of offence was recovered from accused Manish @ Chola and as per the report of PW-15 the alleged cartridges which were fired at the deceased Nikhil and were recovered from the spot matches with that of the pistol recovered from accused Manish @ Chola (since abated).
Conspiracy
95. In the present case, the accused persons Joginder Solanki, Dheeraj Vats, Amit @ Rocky and Anil Kumar Vats @ Choti have also been charged for the offence punishable under Section 120 B IPC. However, during trial no sufficient incriminating evidence has been lead on behalf of the prosecution to establish and proved the offence of conspiracy between all the accused persons along with co-accused Manish @ Chola (abated). There is nothing on record, which could establish the hatching of any conspiracy between all the four accused persons inter-se along State Vs. Joginder Solanki @ Ravi and Ors. No. 97/99 SC No. 441199/2016 with accused Manish @ Chola (abated) for the commission of the offence of murder of deceased Nikhil as alleged. The presence of the accused person though is not disputed, there is no further incriminating evidence on record to establish their role. Even, the eye witnesses and the material witnesses examined by the prosecution has been unable to show or suggest the hatching of any conspiracy between the accused persons for the commission of the said offence. Thus, the prosecution has been unable to prove the offence of conspiracy on the basis of the evidence led in the present case.
Final Analysis
96. In the entire evidence adduced on behalf of the prosecution qua the accused persons Joginder Solanki, Amit @ Rocky and Dheeraj Vats, no witness examined by the prosecution has stated about their role in the commission of the alleged offence. None of the public witnesses examined by the prosecution in the present case have deposed anything incriminating qua accused persons Joginder Solanki, Amit @ Rocky and Dheeraj Vats. Though, their presence at the spot at the time of incident has come on record and is not a disputed fact, even as per the CCTV footage, there is no overt act seen on behalf of aforesaid three accused persons, which could establish their guilt in the present case. Accordingly, accused persons Joginder Solanki, Amit @ Rocky and Dheeraj Vats are acquitted from all the charges levelled against them.
State Vs. Joginder Solanki @ Ravi and Ors. No. 98/99 SC No. 441199/2016
97. There is no incriminating evidence qua accused Anil Kumar Vats @ Choti showing his participation in criminal conspiracy with all the co-accused persons, accordingly, he is also acquitted under Section 120 B.
98. With respect to accused Anil Kumar Vats @ Choti, in view of the facts and discussions, adumbrated above and on considering the all over evidence on record, this court is of the view that the prosecution has been able to establish that the accused Anil @ Choti along with accused Manish @ Chola (since abated) committed the murder of deceased Nikhil on 01.02.2016 pursuant to their common intention.
99. Accordingly, accused Anil @ Choti is convicted for the offence punishable under Section 302/34 IPC.
100. Ordered accordingly.
Digitally signed by GURMOHINA GURMOHINA KAUR KAUR ANNOUNCED IN THE OPEN Date: 2024.02.28 17:27:21 +0530 COURT ON 28.02.2024 (Gurmohina Kaur) ASJ-05 (South- West), Dwarka Courts, Delhi State Vs. Joginder Solanki @ Ravi and Ors. No. 99/99 SC No. 441199/2016