Delhi District Court
State vs . Dharamendra Kumar Tandan Judgement ... on 4 September, 2017
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
(CENTRAL ) TIS HAZARI COURTS, DELHI
SC No. 12/2013
FIR No. 147/2012
PS Rajinder Nagar
U/s 302/307/452 IPC & 25/54/59 Arms Act
State Vs. Dharamendra Kumar Tandan
S/o Sh. Dass Bhagat Tandan
R/o Village - Lakhapuri, P.S. Lorami, Teh. Lorami, Distt.
Mungeli, Chattisgarh.
Date of institution : 6.2.2013
Date of conclusion of arguments : 26.7.2017
Date of judgement : 4.9.2017
JUDGEMENT
As per charge sheet, on the receipt of DD No. 4A & 5A dated 19.09.2012, Inspector Manish Joshi along with his driver Ct. Sombir No. 2583/C in Government gypsy No. DL 1 CJ 3221 reached the place of occurrence i.e. 4950, Double Storey, New Rajinder Nagar, New Delhi. On the spot, Inspector Manish Joshi met SI Gautam Malik and Ct. Ashwani No. 2356/C. On local inquiry, it was learnt that H. No. 4950, Double Storey, New Rajinder Nagar, New Delhi was occupied and owned by two families. On the basement, ground and first floor of the house Dr. Sanjiv Dhawan resides and the SC No.12/2013, FIR No.147/2012 Page 1 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 second and third floor of the property belongs to Mr. Tarun Kalra. Due to gun fire shot, the glass of the ground floor was found broken. There were marks of the blood on the ground floor and stairs leading to the ground floor. After entering inside the ground floor of the house the marks of firing were evident. In the road facing room of the first floor, near the balcony, lot of blood was present. On inquiry, it was learnt that due to fire arm injury sustained by Dr. Sanjiv Dhawan, he has been taken to Sir Ganga Ram Hospital. Inspector Manish Joshi left SI Gautam Malik at the place of occurrence and Inspector Manish Joshi along with Ct. Ashwani No. 2356/C departed to Sir Ganga Ram Hospital. On reaching the hospital Dr. Sanjiv Dhawan was found brought dead vide MLC No. 52/12 in the hospital. Sarthak Dhawan S/o Sanjiv Dhawan R/o 4950, Double storey, New Rajinder Nagar, New Delhi age 19 years was found present in the hospital and his statement was recorded by Inspector Manish Joshi, which is such as :
"Byan kiya hai ki mai uprokt par apne parents ke sath rehta hu aur Surajmal Institute , Janak Puri, New Delhi se first year BBA jka course kar raha hu.
Mere parents ne dinak 29/08/12 to Sangeeta Kaur naam ki aurat ko bator domestic servant rakha tha. Jo kuch dino se ek Dharamendra Kumar Tandan naam k vykti hamari domestic servant Sanggeta SC No.12/2013, FIR No.147/2012 Page 2 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 ko va mere papa ne mujhe batlaya tha ki Dharamendra Kumar Tandan apne ko Sangeeta ka huband batlata hai aur dhamki deta hai ki Sangeeta ko mere paas bhej do nahi to anjaam bura hoga. Papa ne mujhe yeh bhi batlaya tha ki Dharamendra Kumar Sir Ganga Ram Hospital mai bhi, jaha mere papa Cardiologist hai, aaya tha aur anjaam bhugatne ki dhamki de gaya tha. Kal raat karib 9/10 PM par papa ne batlaya tha ki Dharemdra Kumar ka phone aaya tha jo phone par unhe jaan se marne ki dhamki de raha tha aur keh raha tha ki agar Sangeeta ko use nahi sopa gaya to wah m ere papa ko dekh lega. Jo samay karib 2:30 AM par aaj mai va mere parents apne apne kamro me so rahe the. Jo kafi shor sharaba va gaali ki awaj sunkar hum sab jag gaye. Mai, mere papa first floor ki aage wali balcony me aa gaye. Jo ek vyakti Army ki dress va shoes pehan kar va apne haath me bandook liye khada tha.
Jo mere papa ne batlaya ki yeh Dharamendra Kumar hai jo apne ko Sangeeta ka husband kehta hai aur kuch din pehle unhe Sir Ganga Ram Hospital me dhamkane aaya tha aur usi ne raat ko bhi telephone par dhamki di thi. Tabhi us Army Uniform pehne Dharamendra Kumar ne mere father ki taraf nishana taan ke marne ki niyat se apne haath me maujood SC No.12/2013, FIR No.147/2012 Page 3 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 bandook se fire kiya, jo mere papa ko chhati par kala. Jo mere papa wahi yeh bolte bolte jamin par kir gaye ki Dharamendra ko pado isne mujhe goli maar di hai. Mai bhi turnt cheekhne laga ki Dharamendra ko pado isne mere papa ko goli maar di hai. Jo Dharamendra Kumar turnt moke se bhaag khada hua.
Mai aur hamare Bitto Uncle unki gaadi me papa ko lekar Sir Ganga Ram Hospital le aaye. Jaha Doctor sahan ne unhe mrat ghoshit kar diya. Dharamendra Kumr jisne mere papa ko goli markar murder kiya hai ko mai samne aane par pehchan sakta hu. Aapne mera byaan likha jo padh liya thik hai."
On this Inspector Manish Joshi made an endorsement and sent the rukka for registration of FIR through Ct. Ashwani No. 2356/C. After this, he reached the place of occurrence, where the crime team of central district had also arrived at scene of crime. He along with I/C Crime Team SI Pankaj Kumar No. D710, Finger Print Proficient HC Ajay Kumar No. 158/C,. Photographer Ct. Vijay Kumar No. 2083/C, SI Gautam Malik inspected the scene of crime. Meanwhile Ct. Shiwani No. 2356/C handed over to him the case file of FIR No. 147/12, U/s 302 IPC, 25/275459 Arms Act after getting the case registered at PS Rajinder Nagar at the place of occurrence (he SC No.12/2013, FIR No.147/2012 Page 4 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 handed over Inspector Manish Joshi the original tehrir and copy of FIR).
Inspector Manish Joshi lifted the following exhibits from place of occurrence i.e. H. No. 4950, Double Storey, New Rajinder Nagar :
(a) a blood stained piece of glass lifted from the second floor of the house stated to be containing the blood of accused Dharamendra, which has been kept in a plastic container and marked as mark A.
(b) Dry blood lifted from the stairs leading to the house of Tarun Kalra stated to be containing the blood of accused Dharamendra, which has been kept in a plastic container and marked as mark B.
(c) Glass control lifted from the second floor of the house has been kept in a plastic container marked as mark C.
(d) Blood in Gauge has been lifted from the balcony of the first floor of the house, which is scene of crime, the blood of deceased Dr. Sanjiv Dhawan kept in plastic container marked as mark Q 1.
(e) Blood stained file piece lifted from the balocny of the first floor of the house having the blood of deceased Dr. Sanjiv Dhawan kept in plastic container and marked as mark Q 3.
(f) Piece of rubber spring suspected to SC No.12/2013, FIR No.147/2012 Page 5 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 be the part of cartridge of gun kept in a plastic container and marked as mark Q 2.
(g) Piece of tile control lifted from the balcony of the first floor of the house kept in a plastic container marked as mark Q 4.
All of the above covered containers have been sealed with the seal of MJ and taken into police possession as per seizure memo. Photographer Ct. Vijay Kumar No. 2083/C clicked the photographs of scene of crime as well as of all the exhibits. After that, Inspector Manish Joshi along with crime team, SI Gautam Malik and staff inspected the surroundings of the place of occurrence. During the inspection of the park situated in front of the place of occurrence, he found four open case cartridges and one missed fire cartridges from the different places of park. Photographer Ct. Vijay Kumar No. 2083/C clicked the photographs of all the recovered cartridges. All of the four open case cartridges have been kept over a white paper and sketch was prepared. After the measurement all the four open case cartridges measured 7 cm. Long and the diameter of painda measured 2.3 cm. Over the all the recovered cartridges, "SHAKTIMAN EXPRESS LONG RANGE" is written. The missed fire cartridge was kept over another white paper and sketch was prepared. After the measurement of missed fire cartridge the length of cartridge measured 6 cm. and SC No.12/2013, FIR No.147/2012 Page 6 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 the diameter of painda measured 2.3 cm. Over the painda of missed fire cartridge "1212, KF BORE" is written. All of the open case cartridges and missed fire cartridge were wrapped in a white clothe and a pulinda was prepared and sealed with the seal of MJ. The seal pulinda was taken into police possession as per seizure memo and marked N2.
After that, Inspector Manish Joshi examined Mr. Trun Kalra S/o Sh. Jaspal Kalra R/o 2 nd & 3rd Floor, 4950, Double Storey, New Rajinder Nagar, New Delhi. Tarun Kalra above handed over him the following clothes, which were worn at the time of incident at about 2:30/2:P45 AM.
(1) One Navy Blue GAP Tshirt with the print of Union Jack in red and blue shade on the front, where on the inner neck's back side "GAP MADE IN TURKEY" is written. The Tshirt has blood stains on the left sleeve and on the lower back. The Tshirt is torn from the lower back.
(2) One blue colored Jockey shorts in small checks having a back pocket on the right side and torn from the left side. The Jockey shorts have blood stains of the aggressor/accused on the left side of shorts.SC No.12/2013, FIR No.147/2012 Page 7 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 The above mentioned Tshirt and shorts have been wrapped in a white cloth and pulinda was prepared and sealed with the seal of MJ. The pulinda has been taken into police possession as per seizure memo and marked as mark N3. After that on the pointing out of Tarun Kalra above, an axe made of steel and having a black coloured handle was found near the corner of the park road. The axe was identified by Sh. Tarun Kalra to be the one used by the accused in breaking into their house and in assaulting him while he was being chased by him. The axe was measured in which the length of blade measured 20 cm and the length of handle measured 40 cm. The handle of axe is made of plastic/rubber. On the handle of the axe "New Age Industries SURENDRA NAGAR (INDIA) 1000" is written. The drawing of the recovered Axe was made on a white paper depicting its structure and measurements. The recovered axe was wrapped in a white cloth and pulinda was prepared and sealed with the seal of MJ. The seal after the use was handed over to SI Gautam Malik. The sealed pulinda was taken into police possession as per seizure memo and marked as N1.
After that, Inspector Manish Joshi examined under Section 161 CrPC Sh. Tarun Kalra S/o Sh. Jaspal Kalra R/o 2nd & 3rd Floor, 49 50 Double Storey, New Rajinder Nagar, New Delhi, which is as under:
SC No.12/2013, FIR No.147/2012 Page 8 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 "I state that, I am residing at the above mentioned address along with my family and working as self employed tax consultant. Today at about 2:30/2:45 am, I along with my wife were watching television in our bedroom when we heard a loud noise as if something was being broken. Within minutes we rushed out and saw a man in army clothes holding a gun in his right hand and was bleeding profusely from his right hand, specially the right thumb. My wife rushed to my daughter's room and I saw the man approaching from the inside to my third floor where, I was positioned. Seeing him climb up my wife also came out of my daughter's room as he continued to ask about Sangeeta. My wife replied that Sangeeta works on the ground floor and he had entered into the wrong house and pleaded mercy from him. Hearing this the man ran down to the second floor and tried to find his way back from the main door but could not open the latche. He immediately rushed up, towards the third floor and immediately forced me to open the door. I was held by him from one side and he had a gun on the other hand. He took me upto the door and the moment. I opened the door he held me from the back of my neck and said that I should take him to the correct floor. As we were coming SC No.12/2013, FIR No.147/2012 Page 9 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 down the stairs my immediate neighbour Goyal came out. Seeing him coming out from the back, suddenly he pointed the gun towards me and tried to shoot me. I caught the barrel of the gun and we got in a scuffle. He and I were vehemently trying to struggle with the gun. He was trying to point the gun towards me and I was trying to avoid it. As the gun was strongly clasped by both of us, I tried to pull the gun away from him and both of us lost our balance and came tumbling down, 8 to 10 stairs tot he ground level.
Seeing him loose his balance, I snatched the gun ran out side. He too recovered and ran behind me. I had hardly run few meters. I saw him chasing towards me with a weapon which looked like an axe from one side and hammer from the other.
He slashed that weapon on my back, fortunately it slit my Tshirt from the back.
He again tried to hit but the weapon got tangled into my shorts, thereby slitting it.
I tried to look down to see if I was hurt which resulted in he snatched the gun back from me. Having the gun in his hand he threatened to kill me by aiming the gun at me. I hid my self behind the car parked around the park and ran back towards my house. I heard a gun shot from behind. I climbed the staircase hysterically asking for help. My neighbour Goyal opened the SC No.12/2013, FIR No.147/2012 Page 10 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 door and dragged me in. We heard few more gun shot while we were in the house. Subsequent to which we heard lot of screaming and howling from the ground and first floor of the house.
Within minutes Sanjiv Dhawan's younger son Sarthak ran up to our floor and banged at my as well as Goyal's door for help. Fearing that he was accompanied by the firing intruder, we did not open the door. Within minutes we saw from Goyal's balcony that Dhawan was being taken to the hospital. Thereafter the police arrived at the spot. Today you on my pointing out seized an axe made of steel having a black coloured handle which was found near the corner of the park road. The said axe was used by the accused firing intruder, whose identity has been established as Dharmender Fauji, for breaking in their house and in assaulting him while he was being chased by the accused. You measured the axe ad wrapped the same in a white cloth and prepared the pulinda. The pulinda was sealed by you with your seal. The sealed pulinda was taken into police possession by you as per seizure memo. I also handed ovr to your one navy blue 'GAP' T shirt with the print of Union Jack in red & blue shade on the front. Where as on the inner neck's back side "GAP MADE IN SC No.12/2013, FIR No.147/2012 Page 11 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 TURKEY" is written. The Tshirt has blood stains on the left sleeve and on the lower back. The Tshirt is torn from the lower back. I also handed over one blue coloured jockey shorts in small checks having a back pocket on the right side and torn from the left side. The jockey shorts have blood stains of the aggressor/accused on the left side of the shorts and the Navy Blue GAP Tshirt also has the blood stains of the accused persons. The Tshirt and the shorts were wrapped in a white cloth and pulinda was prepared by you and the same was sealed by your with the seal of MJ. The same was taken into police possession as per seizure memo. You prepared the pointing out and seizure memo axe as the axe was recovered on my pointing out and also the seizure memo of my clothes. The both the seizure memos bear my signatures. The accused Dharmender had killed Dr. Sanjiv dhawan and attempted to kill me. You recorded my statement, which I have read and found correct."
Thus, from the statement of Tarun Kalra, under Section 452/307 IPC were added to the existing section of 302 IPC and 25/27/54/59 Arms Act.SC No.12/2013, FIR No.147/2012 Page 12 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Inspector Manish Joshi examined Naresh Goyal S/o Sh. M. M. Goyal R/o H. No. 51, Double Storey, 2 nd Floor, New Rajinder Nagar under Section 161 CrPC. His examination established the presence of the accused Dharamendra Fauji at the place of occurrence holding a gun in his hand and firing towards Dr. Sanjiv Dhawan's house besides corroborating the vision of Tarun Kalra in respect of the scuffle between Tarun Kalra and the accused Dharamendra Kumar Tandan.
Similarly Gopal Gosai S/o Ram Nath Gosai R/o 4950 Double Storey, New Rajinder Nagar was also examined under Section 161 CrPC. His examination established the identity of the accused Dharamendra Fauji and substantiated the fact that the accused Dharamendra Kumar Tandan opened fire at the house and also on Dr. Sanjiv Dhawan, which proved fatal resulting in his murder at the hands of the accused.
Shivansh Dandona S/o Sh. Naveen Chander R/o 5050 Doube Storey, New Rajinder Nagar was also examined under Section 161 CrPC. His examination confirmed making the PCR call to police informing the police about the incident.
Sandeep Kwatra @ Bitto S/o K. K. Kwatra R/o 4142 Double Storey, New Rajinder Nagar was also examined under Section SC No.12/2013, FIR No.147/2012 Page 13 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 161 CrPC. His examination confirmed that he along with Sarthak took Dr. Sanjiv Dhawan to Sir Ganga Ram Hospital for treatment, besides hearing the gun shorts fired and noises on the intervening night of 18/19.09.2012 at about 2:45 am near H. No. 4950, Double Storey, New Rajinder Nagar, New Delhi.
Inspector Manish Joshi interrogated Ms Sangeeta Kaur D/o Harnam Singh R/o village - Surendara, Post Office Vidhua, PS Surva Katra, Distt. Oraiya, U.P. aged 27 years, Mob. No. 8527606238. Ms Sangeta Kaur informed him that she had met the aggressor/accused Dharamendra Fauji at railway station Delhi on 21.03.2010 and they became friends. She started living with Dharamendra Fauji together at Garhi, New Delhi. After some time Dharamendra Fauji quarreled with her and they separated. But, wherever she went, Dharamendra Fauji followed her and created nuisance. He is a gilded lover of her.
On this, Inspector Manish Joshi made a plan to catch the accused Dharamendra Fauji whose name and address is Dharamendra Kumar Tandan S/o Dass Bhagat Tandaon R/o Village - Lakhapuri, PS Mungeli, Teh. Lorami, Distt. Bilaspur, Chattisgarh and Local Address H. No. 10. Shakurntala Ka Makan, Sec41, Wazirabad Gaon, Gurgaon, Haryana. Inspector Manish Joshi convinced Ms Sangeeta Kaur to call SC No.12/2013, FIR No.147/2012 Page 14 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 the accused Dharamendra Kumar Tandan from her mobile no. 8527606238 and directed her to request the accused Dharamendra for a meeting. On this direction Ms Sangeeta Kaur agreed and she made a call to Dharamendra Fauji on his mobile no. 9650944083 and the accused Dharamendra agreed to meet her near Hanuman Murti, Gol Chakkar, Jhandewalan. The accused was eventually overpowered near the Karol Bagh Metro Station. The shoulder bag recovered from the possession of the accused Dharamendra was checked and following items were recovered :
1. One black & red coloured shoulder bag containing one red coloured (multi colour) scarf, one leather made cardridge carrying box (black colour), one arms license - acquisition possession and carrying of arms and ammunition for spot/protection/display with license no.
217/DM/DODA, dt. 25.06.2009 renewed upto 25.06.2014 having seal of the court of District Magistrate DODA (J & K). the said license mentioned above has been taken into police possession as per seizure memo and attached to case file.
2. One DDBL (Double Barrel) shot gun (12 bore) was measured and total length of shot gun is 74 cm, length of barrel 54 cm, body length 38 cm and but length 12 cm. The gun has impression which SC No.12/2013, FIR No.147/2012 Page 15 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 represents Tuskar friends company 26527.06, Trigger Guard with side designe having blood stains. The drawing of the recovered gun was made on a white paper depicting its structure and measurements. The shot gun was packed in a white cloth pulinda and sealed with the seal of MJ and marked as exhibits no.
N5. The sealed pulinda has been taken into police possession as per seizure memo.
3. The shoulder bag with red coloured scarf ad leather cartridges box packed in a white pulinda and sealed with the seal of MJ and taken into police possession as per seizure memo.
The mobile phone Samsung Dual SIM Model G7EZ1521 baring IMEI Nos. 357277/04/326299/0 & 357278/04326299/8 of the accused Dharamendra Kumar Tandan was also taken into police possession as per seizure memo.
Accused Dharamendra Kumar Tandan was interrogated where he stated that he joined the Indian Army in 1999 as Sepoy. Subsequently on 15th April 2010 he under took retirement on medical grounds. On 21th May 2011 he had gone New Delhi Railway Station for some work, where he met Sangeeta. They both entered into a friendship and got married in January 2012 in Vaishno Devi Shrine.
SC No.12/2013, FIR No.147/2012 Page 16 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Thereafter, they lived as husband and wife. In the meantime Sangeeta left her house 23 times and Dharamendra Kumar Tandan searched for her where he often indulged in a scuffle with people in whose house Sangeeta was found residing residing as a tenant. He was even imprisoned in Tihar Jail in one such incident. It had come to his knowledge that Sangeeta was now residing and working in Rajinder Nagar at the residence of Dr. Sanjiv Dhawan, who is working in Ganga Ram Hospital. In this regard, he had met Dr. Sanjiv Dhawan few days earlier also. Dr. Sanjiv Dhawan did not send Sangeeta with him despite his repeated requests. Last night between 10 to 11 pm, he had spoken with Sangeeta and Dr. Sanjiv Dhawan through his telephone and Sangeeta had rebuked him stating that whatever I wanted to do I could do, she will not come. Even Dr. Dhawan refused to send Sangeeta to him. This conversation pinched him and he decided that today he will take Sangeeta along with him. In case he does not get her, in that case he will not leave Dr. Sanjiv Dhawan alive. He made preparation to execute his plan. In which he carried a DBBL shot gun, 12 bore, 5 rounds and an axe inside a shoulder bag and tried a red based multi coloured scarf on his head and left Gurgaon. He reached Rajinder Nagar at about 1:30 am. When he reached in front of the house of Dr. Sanjiv Dhawan he did not have SC No.12/2013, FIR No.147/2012 Page 17 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 the knowledge as to which floor Sangeeta and Dr. Sanjiv Dhawan are residing. In search of them he climbed with the help of air conditioners installed out side each floor and reached the second floor of the house. With the help of the axe he broke open the glass door and entered inside. When he entered the house, he was injured on his right thumb of his hand due to the breaking of the glass door and blood oozed out profusely from his right thumb of the hand. When he entered inside, he found a man and a woman inside the house. He brought the man to the ground floor through the stairs on gun point and the said man had dispossessed him of his gun. This made him very furious and he chased him with the axe in his hand and even assaulted him with the axe. As a result he got his gun back from that man. In order to teach that man a lesson he fired two rounds at that man but the first round misfired and the second round did not hit him as he had ran inside the building. Thus that man survived his assault. Thereafter, he fired two rounds at the ground floor of Dr. Sanjiv Dhawan's building. In the meantime on the first floor of the said house Dr. Sanjiv Dhawan along with the young man came on the balcony of the first floor. Seeing Dr. Sanjiv Dhawan in front of him he recollected his commitment to kill Dr. Sanjiv Dhawan if he did not get Sangeeta and they very thought that it is due to Dr. Sanjiv Dhawan SC No.12/2013, FIR No.147/2012 Page 18 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 that he is living in separate from Sangeeta. On the very moment he decided from his way to eliminate Dr. Sanjiv Dhawan and in pursuance of his commitment he aimed his gun at Dr. Sanjiv Dhawan and took up proper aim of his chest and fired. The bullet hit smart and the doctor cried in pain, by taking my name, that I had shot him and that people should catch me otherwise I will escape. He intentionally fired at Dr. Sanjiv Dhawan's chest after proper aim, knowing well that if the bullet hits the chest, the Dr. Dhawan will die. He escaped from the scene. Thereafter, Inspector Manish Joshi caught him along with his weapon of offence.
After this the accused Dharamendra Kumar Tandan coloumn no.11 was arrested in the case, as per procedure, as sufficient evidence against the accused had surfaced on the case file. He was arrested at 11:30 am near the Karol Bagh Metro Station. The arrest memo was prepared along with his personal search memo. Thereafter, during interrogation whatever the accused stated was recorded in his disclosure statement.
The postmortem on the body of the victim Dr. Sanjiv Dhawan was conducted at MAMC Hospital as per procedure. After the postmortem Dr. Sreenivasan Asst. Professor Forensic Department MAMC Hospital handed over Inspector Manish Joshi a plastic SC No.12/2013, FIR No.147/2012 Page 19 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 container containing the lead found in the body of Dr. Sanjiv Dhawan during the postmortem which is sealed with the seal of MAMC MS, a sealed pulinda containing the blood stained pyjama, a khaki coloured envelope containing the blood gauge of Dr. Sanjiv Dhawan, which is sealed with the seal of MAMC MS and a sample seal of MAMC MS. All above sealed pulindas and sample seal was taken into police possession as per seizure memo and marked as exhibits no. N6, N7 and N8 respectively.
The accused Dharmedra Kumar Tandan was medically examined at Lady Harding Medical College, New Delhi vide Sl. No. 59407. On ME the doctor has mentioned "Fresh Multiple Abrasions Over rt. Thumb of rt. Hand". During the medical examination of accused in LHMC and SK Hospital, the doctor handed over Inspector Manish Joshi a sealed pulinda made of white strip containing the blood gauge of accused Dharamendra, which is sealed with the seal of CMO LHMC & SK Hospital and a sample seal on an OPD card. The above sealed pulinda and sample seal was taken into police possession as per seizure memo and marked as exhibits no. N9.
Thereafter, Military coloured pant & shirt over which Indian Army is written, which were worn by the accused Dharamendra Kumar Tandan at the time of incident and contains the SC No.12/2013, FIR No.147/2012 Page 20 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 blood stains along with the white baniyan, a pair of cream colour shocks, a green colour belt and a pair of black military shoes have been wrapped in a white cloth and a pulinda was prepared. The Pulinda has been sealed with the seal of MJ and taken into police possession as per seizure memo. After the use, the seal was handed over to SI Gautam Malik and the exhibit is marked as N10.
Ms Sangeeta Kaur D/o Harnam Singh R/o village Surendara, Post office Vidhua, PS Surva Katra, Distt. Oraiya, U.P handed over Inspector Manish Joshi 76 coloured photographs of size 7 x inch and told that these photographs are related to her and Dharmender Kumar Tandan when they lived together. These all 6 photographs have been taken into police possession as per seizure memo and placed with the case file.. After that, Inspector Manish Joshi examined Ms. Sangeeta Kaur D/o Harnam Singh R/o village Surendara, Post office Vidhua, PS Surva Katra, Distt. Oraiya, U.P., age 27 years, Mob. No. 8527606238 and whatever she told Inspector Manish Joshi was recorded in her statement u/s 161 CrPC, where she has stated that it is Dharamendra Kumar Tandan, who on 19.09.2012 at about 2:45 am had shot dead Dr. Sanjiv Dhawan from his Double Barrel Gun.
SC No.12/2013, FIR No.147/2012 Page 21 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 At the instance of Sarthak Dhawan S/o Late Dr. Sanjiv Dhawan R/o 49050 Double Storey, New Rajinder Nagar, New Delhi. Inspector Manish Joshi prepared the site plan of place of occurrence and recorded his supplementary statement. An application was moved before the concerned court for conducting the TIP of the accused and the same was marked to the link MM for further action where the accused Dharamendra Kumar Tandan refused to participate in the TIP proceeding. The copy of the proceeding recorded by the link court was obtained as per procedure. During the course of investigation, Inspector Manish Joshi obtained the certified copy, ownership, CDR and CAF with location of mobile nos. 9540122693 (Dharamendra Kumar Tandan), 9899273958 (Dharamendra Kumar Tandan), 9899877467 (Shivansh Dandona), 9811071244 (Dr. Sanjiv Dhawan), 8800410436, 8527606238 (Ms Sangeeta, User & CAF in favour of Dharamendra Kumar Tandan) from 28.08.2012 to 19.09.2012 for the investigation of the case. As per the CDR of above numbers, it is evident that the accused Dharamendra Kumar Tandan made calls from his mobile numbers 9540122693 & 9899273958 to Dr. Sanjiv Dhawan and Ms Sangeeta on their mobile numbers 9811071244 & 8527606238 respectively in the intervening night of 18/19.09.2012. the CDR of mobile of Sivansh Dandona SC No.12/2013, FIR No.147/2012 Page 22 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 (9899877467) proves that he made a call to police at 100 number at about 2:52 am on 19.09.2012. The CDR of the mobile of Ms Sangeeta (8527606238) is evident that the conversation was made between her and accused in the morning of 19.09.2012.
The statement u/s 164 CrPC of the witness Sangeeta Kaur was also recorded on the application of Inspector Manish Joshi by the Ld. Link MM. The copy of th said statement was also obtained as per procedure. Inspector Manish Joshi collected the postmortem report of deceased Dr. Sanjiv Dhawan S/o Dr. K. N. Dhawan R/o 4950, Double Storey, New Rajinder Nagar, Delhi from the MAMC hospital which opined "Death in this case occurred as a result of haemorrhage and shock, consequent upon penetrating fire arm ammunition injury to the chest (injury no.1); which is fatal and sufficient to cause death in the ordinary course of nature. All injuries are ante mortem in nature, fresh prior to death in duration. Inspector Manish Joshi prepared the forwarding letter to FSL Rohini for the expert analysis and opinion of exhibits seized in the investigation of the case. Total 17 sealed pulindas of exhibits along with forwarding letter were sent to FSL Rohini through Constable Parsannan No. 898/C PIS No. 28862752, PS Rajinder Nagar, Delhi vide road certificate no. 36/21/12 for exports analysis and opinion. The FSL result is awaited.
SC No.12/2013, FIR No.147/2012 Page 23 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Inspector Manish Joshi called SI Mahesh Kumar Draftsman Crime Branch and he along with SI Mahesh Kumar visited the place of occurrence i.e. 4950, Double Storey, New Rajinder Nagar, Delhi. On his instance SI Mahesh Kumar inspected the scene of crime and subsequently prepared the scaled site plan and handed over the same to Inspector Manish Joshi for the purpose of investigation of the case.
After that, Inspector Manish Joshi send a request for the verification and cancellation of fire arm license of DBBL (double Barrel) shot gun of accused Dharamendra Kumar Tandan, the reply to the same is awaited. Inspector Manish Joshi collected the previous involvement of the accused Dharamendra and found him being involved in FIR No. 119/2012, Dt. 13.04.2012, u/s 324/452 IPC, PS Jaitpur, New Delhi. HC Rattan Lal No. 283/C was sent to Chattisgarh for the purpose of investigation of the case, who on return handed over to Inspector Manish Joshi the copies of FIRs and related documents reflecting the involvements of accused Dharamendra Kumar Tandan in several cases in the state of Chattisgarh. The accused Dharamendra was found to be involved in following cases :
(1) Case FIR No. 369/09, U/s 294/323/506B/147 IPC, PS Lormi, Distt.
Mungeli, Chattisgarh.
(2) Case FIR No. 370/09, U/s 294/323/506B/147 IPC, PS Lormi, Distt.SC No.12/2013, FIR No.147/2012 Page 24 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Mungeli, Chattisgarh.
(3) Case FIR No. 47/11, u/s 307 IPC & 25/27 Arms Act of Police Station Kunda, Distt. Kabirdham, Chattisgarh.
All of the above documents/FIRs have been taken into police possession as per seizure memo. The photographs of the scene of crime were obtained and placed on file.
Statements of witnesses U/s 161 CrPC were recorded. The investigation has thus revealed that the accused Dharamendra Kumar Tandan desperately wanted the maid Sangeeta to stay with him much against the wishes of Sangeeta. The investigation has also established that Sangeeta was never married to the accused Dharamendra Kumar Tandan column no.11, though she stayed with him for some time in which she realized that Dharamendra Kumar Tandan is not a person worth staying with. She always wanted to get away from him but was followed by the accused, who managed to trace her every time. The FIR No. 119/12 dt. 13.04.2012 u/s 324/452 IPC of PS Jaitpur, Delhi is an example of this and further confirms that how violent the accused can get. The seizure memo in the said case of PS Jaitpur, dt 14.05.2012 prepared by SI Hotilal of PS Jaitpur appearing in serial no. 745 of the store room register (PartI) / Malkhana Register of PS Jaitpur indicates that SC No.12/2013, FIR No.147/2012 Page 25 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 DBBL gun no. 26527 was recovered from the possession of the accused Dharamendra Kumar Tandan along with the 5 live cartridges of "SHAKTIMAN12 EXPRESS" and the gun license no. 217/DM/DODA, dt. 25.06.2009 in the name of D. K. Tandan accused column no. 11 along with a Khukri. The DBBL Gun, 5 live cartridges and the gun license have been received back by the accused column no.11 after his release on bail where he has made his initials in the said malkhana register and has given his mobile no. as 95401222693. Thus, it is clear that this is the same DBBL gun, which was used by the accused column no.11 to murder Dr. Sanjiv Dhawan in the morning of 19.09.2012. the mobile number indicated in the malkhana register of PS Jaitpur and the mobile phone recovered from the personal possession of the accused column no.11, are the same. The ownership of this mobile phone is confirmed by the service provider, who has furnished his CAF in this regard. The injury sustained by the accused column no.11, on his right hand thumb while breaking open the glass door of Tarun Kalra's house is reflected clearly on his medical examination no. 59407 of LHMC & SK Hospital on 19.09.2012 conducted after his arrest. The medical examination clearly opines "Fresh multiple cut and abrasions over rt. thumb of the accused has been found on the broken glass pieces of the door and on the stairs SC No.12/2013, FIR No.147/2012 Page 26 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 leading to the house of Tarun Kalra. The presence of blood of the accused is also evident on the clothes of Tarun Kalra worn at the time of occurrence on 19.09.2012, DBBL Gun recovered from the possession of the accused, on the recovered case cartridge, on the clothes worn by the accused at the time of incident (Army Uniform) etc. The injury on the hand of the accused also corroborated in the statement of Tarun Kalra u/s 161 CrPC. Further, the statement of Sangeeta u/s 161 & 164 CrPC and the statement of the servant Gopal Gosai u/s 161 CrPC confirms the presence of the accused with the gun in his hand, the firing done by him and the murder of Dr. Sanjiv Dhawan done by the accused from the DBBL gun in his hand. The version of the witnesses, the evidence collected so far clearly indicates that Dharamendra Kumar Tandan had spoken with Dr. Sanjiv Dhawan and Sangeeta on the night of 18.09.2012 and when Sagneeta refused to go with him, the accused held Dr. Sanjiv Dhawan responsible for it and decided to murder Dr. Sanjiv Dhawan. In furtherance of his criminal intention the accused prepared himself by wearing an Army Uniform to avoid detection. He armed himself with his licensed DBBL gun along with its license and 5 live cartridges with cartridge carrying box. He also carried heavy steal AXE with him. Thus, he ensured that if he does not succeed in murdering Dr. Sanjiv Dhawan with his gun SC No.12/2013, FIR No.147/2012 Page 27 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 he would use his axe to eliminate him from this world. Thus, the preparation as indicated by the recovery affected in this case indicates that the accused had full intention to murder and eliminate Dr. Sanjiv Dhawan. The version of Sarthak Dhawan and the disclosure of the accused clearly mentions that the accused on seeing Dr. Sanjiv Dhawan in his balcony aimed his gun towards him and after having achieved proper aim shot dead Dr. Sanjiv Dhawan.
As per the investigation conducted so far, a charge sheet u/s 302/452/307 IPC & 25/275459 Arms Act was filed against the accused Dharamendra Kumar Tandan S/o Sh. Dass Bhagat Tandan R/o village - Lakhapuri, PS Lormi, Distt. Mungeli, Chattisgarh and the case was committed to the Sessions Court, which assigned the case to this court. This session case was received and registered in this court on 6.2.2013. But the FSL result was still awaited from FSL Rohini and further investigation was continuing in respect of the fire arm in question.
Moreover, further investigation continued in respect of the fire arm license of the accused, which was found to have been issued to accused by the Office of DM Doda, J&K. It was also found that accused had purchased the DBL Gun 12 bore along with the cartridges from M/s Varun Armoury Jammu. This supplementary charge was SC No.12/2013, FIR No.147/2012 Page 28 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 filed before Ld. Metropolitan Magistrate on 31.5.2013.
Later on, the FSL result was received and another supplementary charge sheet dated 3.3.2015 was filed.
The supplementary charge sheets were also committed to the Sessions Court and the same became the part of the main charge sheet.
Charge After hearing arguments, a charge U/s 302 IPC was framed against the accused for committing murder of Dr. Sanjiv Dhawan.
A separate charge was framed against accused U/s 307 IPC for attempting to commit murder of Tarun Kalra and U/s 452 IPC for having committing house trespass having made preparation for causing hurt to said Tarun Kalra. Accused pleaded not guilty and claimed trial.
Prosecution Evidence PW1 Dr. Prashant Kumar, CMO, Sir Ganga Ram Hospital testified that on 19.9.2012 at about 3:10 am Dr. Sanjiv Dhawan was brought in casualty by his son Sarthak Dhawan. The patient, who was unconscious, was having history of bullet injury on his left side of SC No.12/2013, FIR No.147/2012 Page 29 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 chest. He observed one entry measuring by 2cm x 2cm at left mid - clavicular line, 6th inter costal space. He declared the patient brought dead. PW1 prepared MLC Ex.PW1/A. Kurta and Baniyan of deceased were removed and turned into parcel, which was sealed with the seal of hospital. Thereafter, he handed it over to the Investigating Officer.
PW2 SI Hira Singh was Duty Officer at PS Jaitpur, Dabri who proved FIR Ex.PW2/A, u/s 324/452 IPC with the allegations that accused had entered the house of Tejpal and tried to take away Sangeeta, who resisted this attempt. Thereafter, accused hit complainant with a sharp edged weapon by entering the house of Tejpal.
PW3 Dr. Nitin Raja Singh medically examined accused brought by Ct. Satpal Yadav and he observed fresh multiple abrasions over right thumb with clean lacerated at proximal interphalangeal joint right hand. He took blood sample of accused, sealed the same with the seal of hospital and handed over the parcel and impression of seal to Ct. Satpal Yadav. He prepared MLC Ex.PW3/A. PW4 Sh. Pawan Singh Nodal Officer, Idea Cellular Ltd. testified that on 22.9.2012 at the request of SHO PS Rajinder Nagar, he handed over the relevant record to police in respect of mobile phone no. 95401222693. He testified that this mobile phone was SC No.12/2013, FIR No.147/2012 Page 30 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 allotted to Dharamendra Kumar Tandan. Along with the customer application form, copy of driving license was submitted by way ID proof, which are Ex.PW4/A. He also submitted to police the CDRs of the aforesaid phone from 28.8.2012 to 19.9.2012, which are Ex.PW4/B. The certificate under Section 65B of Evidence Act is Ex.PW4/C. PW5 Inspector Mahesh Kumar, Draughtsman prepared the scaled site plan Ex.PW5/A of the place of incident.
PW6 Sh. Israr Babu, Alternate Nodal Officer, Vodafone Mobile Service Ltd. proved the customer application form, copy of driving license submitted by accused for mobile phone no. 9899273958. The same are Ex.PW6/A. He also proved CDRs of this phone from 28.8.2012 to 19.9.2012, which are Ex.PW6/B with certificate under Section 65B of Indian Evidence Act, which is Ex.PW6/C. He proved the CAF and copy of driving license for mobile phone no. 9811071244 of Dr. Sanjiv Dhawan. These documents are Ex.PW6/D. The CDRs and certificate under Section 65B are Ex.PW6/E and Ex.PW6/F respectively. He further proved the record of mobile phone no. 9899877467 of Shivansh Dandona, its CDRs and certificate under Section 65B as Ex.PW6/G, Ex.PW6/H and Ex.PW6/J. SC No.12/2013, FIR No.147/2012 Page 31 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 PW7 Sh. Chander Shekhar, Nodal Officer, Bhartiya Airtel Ltd. proved the record of mobile phone no. 8527606238 of accused, CDRs as Ex.PW7/A and Ex.PW7/B. PW8 Dr. Sreenivas, Associate Professor, Maulana Azad Medical College testified that he and Dr. Jatin Bodwal jointly conducted the autopsy of Dr. Sanjiv Dhawan and that time, which elapsed between death and postmortem was about 9 hours. During autopsy a lead slug weighing about 26 grams and having dimension of 2.4 cm in diameter was extracted from the upper back of right side of chest. It was depicted in form of diagrams in autopsy report. The lower portion of the projectile had a concavity applied to which were multiple circular shape brownish coloured wads. The lead slug and wads were turned into a parcel and were sealed. Sealed clothes of deceased and sealed sample of dried blood or gauze were handed over to the Investigating Officer. The inquest papers Ex.PW8/A1 to Ex.PW8/A5, MLC Ex.PW1/A, Ex.PW8/A6 and Ex.PW8/A7 were handed over to the Investigating Officer. The autopsy report is Ex.PW8/A. PW9 HC Darshan Lal was MHC(M). He testified that on 19.9.2012 Inspector Manish Joshi deposited with him 12 sealed parcels bearing seal of MJ and personal search items of accused with SC No.12/2013, FIR No.147/2012 Page 32 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 him. He recorded entry at serial no. 921 in register no.19, which is Ex.PW9/A. On 26.9.2012 he handed over to Ct. Prasannan, 17 sealed parcels and FSL form for depositing the same at FSL. The relevant note is from point A to A on Ex.PW9/A. Copy of road certificate is Ex.PW9/B. Copy of acknowledgement issued by FSL is Ex.PW9/C. He testified that during the period the case property remained in his custody, the same was not tempered with. In cross examination, PW9 explained that on 19.9.2012, vide 12 seizure memos, 17 sealed parcels and articles of personal search memo were deposited with him.
PW10 Ct. Prasannan testified that on 26.9.2012, on the directions of IO Inspector Manish Joshi, he collected 17 sealed parcels, out of which 13 parcels were sealed with the seal of MJ, one parcel was sealed with the seal of Sir Ganga Ram Hospital, one parcel was sealed with the seal of LHMC, another parcel sealed with the seal of MAMC and one parcel containing blood sample was without any seal. He took these parcels with forwarding letter vide road certificate no.36/21/12 from MHC(M) and deposited the same at FSL on the same day. Thereafter, he returned to police station and handed over the receipt issued by FSL to MHC(M).
SC No.12/2013, FIR No.147/2012 Page 33 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 PW11 HC Naresh Kumar testified that on 19.9.2012 at about 2:59 am, he received a public call that shots were being fired at House No.52 near Big Apple, New Rajinder Nagar. He recorded this information in DD No.4A (Ex.PW11/A). The DD was assigned to SI Gautam Malik. At about 3:00 am, he received a call from PCR regarding quarrel at House No.52, Double Storey Building, New Rajinder Nagar that shots were being fired. He recorded DD entry no.5A (Ex.PW11/B). At about 4:40 am, he received a rukka brought by Ct. Ashwani and sent by Inspector Manish Joshi. He recorded DD no.9A and made his endorsement on the rukka (Ex.PW11/C) mentioning the FIR number. He had got the FIR registered through computer operator Ct. Bharat, print out of which is Ex.PW11/D. He also dispatched the special reports to the concerned officers.
PW12 Ct. Vajay is photographer, who took the photographs of place of occurrence Ex.PW12/B1 to Ex.PW12/B28. The negatives are Ex.PW12/A1 to Ex.PW12/A41.
PW13 Sh. Sarthak Dhawan is son of the deceased. He testified that Ms Sangeeta Kaur was employed as maid at their residence on 29.8.2012. Soon thereafter, his father started receiving threat calls. PW13 testified that his father told him in first week of September 2012 that a person by name of Dharamendra Kumar SC No.12/2013, FIR No.147/2012 Page 34 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Tandan used to call him on phone and represented himself to be the husband of Ms Sangeeta Kaur and that his father should hand over to him Ms Sangeeta Kaur or otherwise it would lead to dire consequences. PW13 testified that his father was Senior Cardiologist, Sir Ganga Ram Hospital. His father also told him that around 9 th September 2012, the said Dharamendra Kumar Tandan had come to him at Sir Ganga Ram Hospital and threatened him with death in case he failed to hand over to him Ms Sangeeta Kaur. On 18.9.2012, at about 9/10:00 pm, PW13 was present at his house and his father and mother were having dinner. His father told him even on that day that he had received similar threat call on phone from Dharamendra Kumar Tandan. PW13 testified that at about 2:30 am, he heard some noise and someone was hurling abuses. He also heard sound of shot being fired. On this he and his father reached the balcony of first floor of their house. They saw the accused in the service lane. Accused was wearing Army uniform and was holding a gun. He aimed gun at his father. His father told that he was Dharamendra Kumar Tandan, who had visited him at Sir Ganga Ram Hospital and had extended threat to kill him. Accused opened the fire from his gun and shot hit his father in his chest. His father collapsed in the balcony while saying that Dharamendra Kumar Tandan had fired shot at him SC No.12/2013, FIR No.147/2012 Page 35 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 and that he should be caught hold of. PW13 testified that he raised alarm and rushed to the ground floor but found that accused had run away from there. On hearing a noise, his neighbour Bittoo reached there and PW13 and Bittoo rushed the injured to Sir Ganga Ram Hospital, where the doctor declared him brought dead. PW13 further testified that when he returned home, he found police present there. He made a statement Ex.PW13/A to the police. He identified the dead body of his father before autopsy vide memo Ex.PW8/A5. At his pointing out, police prepared site plan of the place of occurrence. On 30.11.2012, he visited Tis Hazari Courts in connection with preparation and attestation of ante ragging affidavit and he saw the accused with Inspector Manish Joshi while entering the court premises. On the same day, he went to police station and told the Inspector that he had seen him and accused in Tis Hazari Courts.
PW14 SI Pankaj Kumar Incharge Crime Team reached at the spot along with his team at House N.49/50, Doubel Storey Building, New Rajinder Nagar at about 4:00 pm. He inspected the scene of crime. He got the spot photographs. In the balcony of the said building, blood was found lying scattered at places. They also went to the balcony of second floor and found pieces of glass there. Blood stains were noticed on those pieces of glass. Dry blood was also SC No.12/2013, FIR No.147/2012 Page 36 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 noticed on stair case. On the ground floor, they inspected the space touching the boundary wall of the said building. One wad of shot guncartridge was lying by the boundary wall. Four empty cartridges and one missed cartridge were found in the park in front of the building. PW14 prepared the report, which is Ex.PW14/A. PW15 Ct. Ashwani Kumar accompanied SI Gautam Malik to the spot. When he visited Sir Ganga Ram Hospital, statement of Sarthak Dhawan was recorded by Investigating Officer, who handed over a rukka to him and PW15 went to police station, got the FIR registered and thereafter handing over the original rukka and copy of FIR to Inspector Manish Joshi.
PW16 Ct. Tara Chand left the police station by Government motorcycle at about 5:30 am on 19.9.2012 and delivered the special report to ACP, DCP and Ilaka Magistrate and returned back to police station at about 7:00 am.
PW17 HC Lalit Mohan is MHC(M). He testified that on 14.5.2012, SI Hoti Lal deposited with him one gun DBBL along with five cartridges, one sealed parcel containing Khukhri and another sealed parcel containing articles recovered from personal search of accused. The same were received in malkhana vide entry Ex.PW17/A. On 3.6.2012, aforesaid gun ad five cartridges were SC No.12/2013, FIR No.147/2012 Page 37 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 released to accused and jamatalashi was also issued to him.
PW18 Naresh Goel a resident of House No.51, Second Floor, Double Storey, New Rajinder Nagar, Delhi testified that on 29.9.2012, he was sleeping in house. He heard a loud hue and cry. He got up and reached the stair case. He saw that accused in military dress and a neighbour namely Tarun were coming down at speed and were grappling with each other. Accused was armed with a small size gun. Then PW18 returned to second floor portion and Tarun also came to second floor. Tarun rang the bell of his house. PW18 opened the door and pulled Tarun inside. Then he went to the balcony of his floor and saw accused standing in street. PW18 testitifed that he inquired from accused as to what he wanted. Accused stated that doctor saab had detained his wife Snageeta. Acused fired in air from his gun and thereafter he also heard another shot being fired. Sarthak, son of Dr. Sanjiv Dhawan, knocked the door of his house but he did not opened the door lest accused enter his house. Thereafter, from his balcony, he saw that Sarthak along with the help of his servant Gopal, was removing Dr. Sanjiv Dhawan, who was in injured condition to the car of Sandeep Kwatra, who took away the car with Dr. Sanjiv Dhawan and Sarthak.
SC No.12/2013, FIR No.147/2012 Page 38 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 PW19 SI Hoti Ram testified that on 14.5.2012 he was serving at PS Jaitpur and was conducting investigation in case FIR No. 119/2012 under Section 326/452 IPC, PS Jaitpur. During the investigation of the said case, accused was arrested and one double barrel gun, one magazine containing 5 live cartridges attached to his belt were recovered from him. Accused produced a gun license, which was seized vide memo, copy of which is Ex.PW19/A. PW20 Gopal Gosain is a cook at the house of Dr. Sanjiv Dhawan. He testified that on 19.9.2012 he was sleeping in drawing room of the house of Dr. Sanjiv Dhawan. At about 2:45 am, he heard loud noise of breaking of window pane. He called Sangeeta, who was working as a maid in the same house and who used to sleep in basement. She came to drawing room and on removing the curtain, she told him that it was Dharmender Fauji, who had fired shot and that he was present on the road in front of the house. PW20 testified that he also removed the curtain and saw accused present on the road. He was wearing military uniform and muffler around the neck. Sangeeta rushed to first floor to inform Dr. Sanjiv Dhawan about all this. Dr. Sanjiv Dhawan went to balcony of first of the house. The also followed him upto the balcony. PW20 testified that then he heard a short being fired from ground floor. Dr. Sanjiv Dhawan spoke SC No.12/2013, FIR No.147/2012 Page 39 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 that he had been shot at by accused and then he and Sangeeta lifted him and removed him from balcony to the room. Dr. Sanjiv Dhawan had also reached the balcony when the fire was shot at Dr. Sanjiv Dhawan. Sarthak removed Dr. Sanjiv Dhawan to Sir Ganga Ram Hospital in car of one Bittoo.
PW21 Shivansh Dandon testified that H. No. 52, Double Storey, New Rajinder Nagar, New Delhi is house of his uncle Naresh Goyal and that on the night intervening 18/19.9.2012, he was sleeping on the second floor portion of the said house. At about 3:00 am, he heard the sound of shot being fired outside the house. He informed PCR by dialing number 100 from his mobile phone no. 9899877467.
PW22 Sandeep Kwatra, a resident of H. No. 41, Double Storey,New Rajinder Nagar, New Delhi, testified that on 18.9.2012 he was sleeping in his drawing room. At about 2:45 am, he heard the sound of gun shots. After 4 or 5 minutes, son of Dr. Sanjiv Dhawan came out of his house screaming for help. He was yelling that his father has been shot down and he was requesting for help. PW22 testified that he along with the help of another neighbour removed Dr. Sanjiv Dhawan to Sir Ganga Ram Hospital, where he was declared brought dead.
SC No.12/2013, FIR No.147/2012 Page 40 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 PW23 HC Surender Singh went to mortuary along with SI Balram and Inspector Manish Joshi. The dead body of deceased was identified by his relatives vide statements Ex.PW8/A4 and Ex.PW8/A5. After postmortem, the doctor handed over two sealed pullandas and one sealed blood gauge, which were seized by Investigating Officer vide memo Ex.PW23/A, Ex.PW23/B & Ex.PW23/C. The dead body was handed over to relatives of the deceased vide receipt Ex.PW23/D. PW24 Ct. Satpal Yadav is a witness to medical examination of accused on 19.9.2012. Doctor handed over blood sample sealed with the seal of hospital to him and he handed over the sealed blood sample and sample seal to IO Inspector Manish Joshi.
PW25 SI Yogender testified that on 19.9.2012 one pulanda was handed over to Investigating Officer at Sir Ganga Ram Hospital, which was having clothes of the deceased vide seizure memo Ex.Pw25/A. He is also witness to the medical examination of accused and handing over of blood sample of accused by doctor to Investigating Officer vide memo Ex.PW25/B. PW26 Tarun Kalra is a resident of 50, Double Storey, Second & Third Floor, New Rajinder Nagar, New Delhi and is a Tax Consultant. He testified that on 19.9.2012 at about 2:00/3:00 am, he SC No.12/2013, FIR No.147/2012 Page 41 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 along with his wife were watching TV in their bed room. They heard a loud noise. He rushed to terrace and saw the accused in army clothes entering into his drawn room with a gun and he was bleeding profusely from his thumb. He was shouting for Sangeeta. His wife told the accused that he has come on the wrong floor. At the instance of accused, PW26 opened the main door of his house. Accused had caught hold of him from behind and directed him to take him to the correct floor. As they were going down stairs, his neighbour Mr. Goyal tried to come down for help. On hearing his foot steps, accused pointed the gun at him and both had a scuffle. Both of them lost balance and came down tumbling about 810 steps of stairs. PW26 testified that he snatched the gun from his hand and ran on the road. Accused followed him and tried to hit him with a sharp weapon from behind resulting in slitting of his Tshirt and shorts. He testified that it was an axe like object. Accused again snatched the gun from him. He (i.e. PW26) tried to save him and run towards his house. He heard a gun shot from behind. He climbed the stairs of his house. After a while, they heard a few more gun shots and sound of screaming and shouting from Dr. Sanjiv Dhawan's house. Suddenly, son of Dr. Sanjiv Dhawan started knocking at the door of Mr. Goyal's house asking for help but they did not open the door fearing that he SC No.12/2013, FIR No.147/2012 Page 42 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 might be accompanied by accused. Then he heard lot of screams and saw from balcony of Mr. Goyal's house that Dr. Sanjiv Dhawan was being removed to the hospital. After sometime police also reached there. Police found the axe and seized Ex.PW26/A it. Later on police also took his torn Tshirt and shorts vide seizure memo Ex.PW26/A. PW27 ASI Rattan Lal went to Chhattisgarh to verify the involvements of accused and it transpired that he was involved in 3 cases in PS Lormi, District Bilaspur and one case in PS Kunda. He took the copies of the charge sheets and FIRs and handed over the same to Investigating Officer vide memo Ex.PW27/A on 16.10.2012.
PW28 Sh. Rakesh Kumar Singh, Civil Judge (Central), THC, Delhi was posted as Metropolitan Magistrate and had recorded the statement of Ms Sangeeta under Section 164 CrPC. He also conducted TIP proceedings of accused Ex.PW28/E and testified that accused refused to participate in TIP on the ground that he had been shown by the police through electronic media.
PW29 SI Gautam Malik participated in investigation. PW30 HC Dinanath Sinha proved the certified copy of FIR No. 47/2011, PS Kunda under Section 307 IPC and 25 Arms Act, which is Ex.PW30/B, zero FIR registered at Out Post Damapur is Ex.PW30/C. Allegations against accused in the FIR is that he SC No.12/2013, FIR No.147/2012 Page 43 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 attempted to kill the complainant by firing at him.
PW31 Dr. N.P. Waghmare, Assistant Director (Ballistic),FSL, Delhi testified as under :
"On 29.4.2013, four sealed parcels sealed with the seal of FSL/VSN/DELHI were internally forwarded by Biology Division to Ballistic Division in connection with FIR No. 147/12, PS Rajinder Nagar. On opening the said parcels, the first parcel was found to contain one envelope having one 12 bore cartridge marked as Ex.A1 (some dent marks present on percussion cap of Ex.A1) and four 12 bore empty cartridge cases marked as Ex.EC1 to EC4 by me in the laboratory.
Second parcel was found to contain the envelope containing the following articles i.e. one green colour full sleeve kurta marked as Ex.K1. Two suspected holes found present near left side chest portion marked as Ex.H1 and H2 by me in the laboratory and another one white colour shandow baniyan marked as Ex.B1. Two suspected holes found present near left side chest portion marked as Ex.H3 and H4 by me in the laboratory.
Third parcel having one sealed cloth parcel containing one double barrel Breech loading shotgun bearing no.2652708 marked as Ex.F1 by me in the laboratory.
Fourth parcel was found to contain envelope containing three deformed plastic wads marked as Ex.W1 to W3 and three paper wads marked as Ex.W4 to W6 of 12 bore ammunition by me in the laboratory.
After examining the said exhibits, I came to conclusion that Ex.F1 is a firearm as defined in Arms Act which is a double barrel Breech Loader Shotgun capable of chambering and firing standard 12 bore ammunition.SC No.12/2013, FIR No.147/2012 Page 44 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 I also came to conclusion that eight 12 bore cartridges taken from laboratory stock were chambered and successfully test fired through Ex.F1 and I opined that the exhibit Mark F1 is in normal working order. Recovered cartridge cases were used for comparison and examination purpose.
The pertinent characterstic marks of Ex.F1 present on the crime cartridge cases marked Ex.EC1 to EC4 were compared with the test cartridge cases fired through Ex.F1 under a comparison microscope and were found to be similar with the firing pin marks present on the test cartridge cases. Hence in my opinion empty cartridge cases EC1 to EC4 were found to be fired through Ex.F1.
The dent marks on Ex.A1 was also compared with Ex.F1 under a comparison microscope. After thorough examination, I reach to the conclusion that it could not be opined whether Ex.A1 was attempted to fire through F1 due to insufficient marks available on it.
The Ex.EC1 to EC4 are part of ammunition as per definition given in Arms Act. The physical examination of Ex.W1 to W6 showed that they were wads of standard 12 bore caliber ammunition as defined in Arms Act.
On examining the cotton swab samples taken from surroundings of holes Mark H1 and H2 at the green striped full sleeve kurta and the swab samples taken from surrounding of holes mark H3 and H4 at the front side of baniyan (B1) were analyzed under Atomic Absorption Spectrophotometer (AS) for detection of gun shot residue but opinion could not be given because of insufficient date available on them.
The Ex.A1 with some dent marks on the percussion cape is found to be ammunition as defined in the Arms Act.
The case exhibits were sealed with the seal of FSL/NPW/DELHI. My report SC No.12/2013, FIR No.147/2012 Page 45 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 dated 27.12.2013 running into four pages is Ex.PW31/A bearing my signature at point A on each page."
PW32 Dr. V. Sankaranarayanan, Senior Scientific Officer (Biology), Regional Forensic Science Laboratory, Chanakya Puri, New Delhi testified as under :
"On 26.9.2012, I was posted at FSL Rohini as Sr. Scientific Officer (Biology). On that day 17 parcels all duly sealed were received in the office of FSL Rohini, Delhi in connection with case FIR No.147/12, PS Rajinder Nagar.
I opened the abvoesaid parcels and examined the exhibits biologically. On biological examination, blood was detected on exhibits A, B, Q1, Q2, Q3, N1, N2, N3a, N3b,N4b, N5, N6, N7, N8, N9a, N9b, N10a, N10b, N 10c, N10d, N10e and N10f. Whereas blood could not be detected on exhibits C and Q4. My detailed biological report in this regard which is running into two pages is Ex.PW32/A bearing my signatures at point A. I have mentioned in the said report about the description of the scene and all the articles found in the respective parcels.
I also examined the exhibits serologically. My detailed serological report is Ex.PW32/B bearing my signature at point A. The remnants of the exhibits which I had examined were resealed with the seal of VSN/FSL/DELHI.
I had also conducted the DNA examination of the exhibits and gave my detailed report dated 22.12.2014 which is already Ex.PW29/Q and bears my signature at points A (3 pages). The Allelic Data is Ex.PW32/C bearing my SC No.12/2013, FIR No.147/2012 Page 46 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 signature at point A."
PW33 Inspector Manish Joshi is the Investigating Officer. He testified as under :
"On 19.09.2012, I was posted as SHO PS Rajinder Nagar. On receipt of DD no.4A and 5A PS Rajinder Nagar, I reached the place of occurrence i.e. 4950, Double Storey, New Rajinder Nagar, Delhi, where I met SI Gautam Malik and Ct. Ashwani. There was blood on the ground floor and stairs leading to the ground floor. The glass pane of the ground floor room facing the service road had been broken by firearm. There were bullet marks in the said room. There was blood on the first floor room as well as the balcony facing the service road. The basement, ground floor and the first floor of the property belonged to Dr. Sanjiv Dhawan whereas 2nd and 3rd floor belong to Tarun Kalra. It was reported that the injured Dr. Sanjiv Dhawan has been rushed to Sir Ganga Ram Hospital with firearm injury. Leaving SI Gautam at the spot, I alongwith Ct. Ashwani proceeded to Sir Ganga Ram Hospital.
On reaching the hospital, Dr. Sanjiv Dhawan was declared brought dead vide MLC number 52/12. I met his son Sarthak Dhawan and recorded his statement which is already Ex.PW13/A duly attested by me at point A. I made my endorsement and sent the rukka through Ct. Ashwani to PS Rajinder Nagar for registration of FIR. Same is Ex.PW33/A bearing my signature at point A. I had already called for Crime Team to reach at the spot. I reached the place of occurrence where several police personnels were already present. The Crime Team photographer had also reached the spot. I collected the exhibits from the SC No.12/2013, FIR No.147/2012 Page 47 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 spot vide seizure memo already Ex.PW29/A which bears my signature at point A. the said exhibits were marked as per the details mentioned in the said seizure memo and were duly sealed with the seal of MJ. Thereafter, the place of occurrence and the surrounding area was inspected. Four case cartridges and one missed fire cartridge were recovered from different places in the park opposite H.NO.49/50, Double Storey, New Rajinder Nagar. The said four case cartridges were placed on a white sheet of paper and a sketch was prepared. During measurement, the length of the used case cartridges was established as 7 cm and the diameter measured as 2.3 cm. The missed fire cartridges were also separately placed on a white sheet of paper and sketch was drawn, the length of which was measured as 6 cm and diameter measured as 2.3 cm. Sketch of empty case cartridges is already Ex.PW29/B bearing my signatures at point B and the sketch of missed fire cartridges is already Ex.PW29/C bearing my signatures at point B. The said four case cartridges and one missed fire cartridge were placed on a white cloth and pullanda was prepared and sealed with the seal of MJ. The said pullanda was seized vide seizure memo already Ex.PW29/B bearing my signatures at point B. Thereafter, Sh. Tarun Kalra was examined in the case and he handed over his clothes i.e. a Tshirt and shorts which were converted into cloth pullanda and was sealed with the seal of MJ and seized vide seizure memo already Ex.PW26/A bearing my signatures at point C. Thereafter, on the pointing out of Tarun Kalra, a steel blade axe with a black handle was recovered from the service road at the corner of the park. Design of the said axe was prepared which is Ex.PW33/B bearing my signatures at point A. The blade of the axe measured as 20 cm and total length measured as 40 cm. Cloth pullanda of the axe was prepared and same was sealed with seal of MJ and seized vide seizure memo SC No.12/2013, FIR No.147/2012 Page 48 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 already Ex.PW26/B bearing my signatures at point C. I recorded the statement of Tarun Kalra and some other witnesses around. Thereafter, I proceeded to Sri Ganga Ram Hospital and was handed over cloth pullanda containing kurta and vest of deceased Dr. Sanjiv Dhawan duly sealed with the seal of the hospital. Same was taken into police possession vide seizure memo already Ex.PW25/A bearing my signatures at point B. The maid of the house namely Sangita Kaur was interrogated and who agreed to telephonically call accused Dharmender Kr. Tandan @ Fouji. Thereafter raiding party was constituted and Sangita Kaur reported that accused has agreed to meet her near Gol Chambry, Hanuman Murti, PUSA Road, Delhi. Then in the police gypsy from PS, we proceeded to PUSA road taking alongwith Sangita Kaur. A trap was laid and on the pointing out of Sangita Kaur, accused Dharmender Kumar was over powered while sitting in a TSR auto from near Karol Bagh metro station on PUSA Road. From the possession of accused, a bag was recovered in which double barrel 12 bore shot gun was visible. The bag was opened and from which red coloured (multi colour scarf) a leather pouch / cartridge case and one arms license alongwith the shot gun 12 bore were recovered. The design of double barrel shot gun 12 b ore was prepared and on measuring the length of the said shot gun was established as 74 cm. The length of the barrel measured 54 cm, that of the body measured 38 cm and that of the butt measured 12 cm. Sketch is Ex.PW33/C bearing my signature at point A. The articles recovered were placed on a white cloth and a pullanda was prepared and the same was sealed with the seal MJ. The arms license was placed in the case file. The license is already Ex.PW29/N. For the DBBL gun, cloth pullanda was prepared and same was also sealed with the seal MJ. The seizure memo of these articles is already Ex.PW29/E SC No.12/2013, FIR No.147/2012 Page 49 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 bearing my signature at point B. From his personal search, a dual SIM Samsung G7 mobile phone was recovered which was converted into cloth pullanda and sealed with the seal of MJ. It was seized vide seizure memo already Ex.PW29/F bearing my signatures at point B. Accused was interrogated and subsequently arrested in the case. His personal seach was carried out and personal search memo was prepared which is already Ex.PW29/J. Arrest memo of accused is already Ex.PW29/H bearing my signature at point B. I recorded disclosure statement of accused. Same is already Ex.PW29/K bearing my signatures at point A. Thereafter, the accused was taken to the place of occurrence and on its pointing out, pointing out memo of the place of occurrence was prepared which is already Ex.PW29/L bearing my signatures at point B. Thereafter, I reached Sir Ganga Ram Hospital from where the body of deceased Dr. Sanjiv Dhawan was taken to MAMC for postmortem. The body was identified by Sarthak Dhawan, son of the deceased vide his statement already Ex.PW8/A5 bearing my signature at point B as well as by his brother Rahul Dhawan vide his statement already Ex.PW8/A4 bearing my signature at point B. The inquest proceedings as aper proceedings were carried out. The inquest form is already Ex.PW8/A2 bearing my signatures at point B and request for postmortem is already Ex.PW8/A1 bearing my signature at point C. After the postmortem, the dead body was handed over to near relatives of the deceased vide receipt already Ex.PW23/D bearing my signatures at point B. After the postmortem, the doctor also handed over a sealed pullanda containing the fired lead recovered from the body of the deceased during the postmortem. The pullanda was already sealed with the seal of MAMC which was seized vide seizure memo already Ex.PW23/A bearing my signatures at point B. One sealed SC No.12/2013, FIR No.147/2012 Page 50 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 pullanda sealed with the seal of MAMC bearing the blood soaked pyjama of the deceased was also seized vide seizure memo already Ex.PW23/B bearing my signatures at point B. A sealed envelope sealed with the seal of MAMC having the blood gauge of the deceased was also seized vide seizure memo already Ex.PW23/C bearing my signature at point B. All the said three pullandas were seized alongwith the respective sample seals. I reached back to the PS and took the accused to LHMC Hospital for medical examination of accused and to seek opinion on the injury on his right hand thumb. The injury was opined as fresh multiple abrasion on the right hand thumb of accused. The blood sample of accused was also provided by LHMC Hospital in sealed condition duly sealed with the seal of the hospital alongwith the sample seal. It was seized vide seizure memo already Ex.PW25/B bearing my signature at point B. The MLC of accused is already Ex.PW3/A. Thereafter, the civil clothes were provided to the accused at the PS and his blood stained army clothes including his under shirt, green colour belt, as well as his socks & shoes were taken into police possession after converting them into a cloth pullanda and sealing with the seal of MJ. The seizure memo is already Ex.PW29/J bearing my signatures at point B. Thereafter, Sangita Kaur handed over six photographs of her in company of the accused. The same were placed on the case file as per seizure memo already Ex.PW29/M bearing my signature at point B. The said photographs are Mark A1 to A6. After this, I visited the place of occurrence and on the pointing out of complainant, I prepared the site plan which is Ex.PW33/D bearing my signature at point A. I recorded the statements of witnesses and deposited the case property in the malkhana. Accused was sent to lockup.SC No.12/2013, FIR No.147/2012 Page 51 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Next day, accused was produced in the court in muffled face and an application for conducting TIP of the accused was moved by me. Same is already Ex.PW28/D bearing my signature at point A. This application was mark to the Link M.M., where the accused declined to participate in the judicial TIP. The said proceedings are already Ex.PW28/E bearing my signature at point X. I had obtained the copy of the TIP proceedings and of my application for TIP.
On 21.09.2012, I find an application before the concerned court for recording of statement of Sangita Kaur U/s 164 Cr.P.C. the said application is already Ex.PW28/A bearing my signatures at point B. The same was marked to link M.M. and the statement U/s 164 Cr.P.C. of Sangita Kaur was recorded vide Ex.PW28/B bearing my signatures at point C. I had taken the copy of said statement vide my application already Ex.PW 28/C bearing my signatures at point B. Thereafter, the PM report was obtained and the exhibits were sent to FSL in safe custody through Ct. Prasanna. I had also obtained the crime team report which is already Ex.PW14/A. The request for CDRs, CAF, ownership record alognwith certificate U/s 65B Evidence Act were requested from mobile service provider. My request letter to the Nodal Officer Vodafone in this regard is Ex.PW33/E bearing my signatures at point A and my request letter to Nodal Officer, Airtel Bharti Ltd. is Ex.PW33/F bearing my signatures at point A. My request letter to Nodal Officer, Idea Cellular Ltd. is Ex.PW33/G bearing my signatures at point A. 28 photographs were provided from the photographer of the Crime Team which are already Ex.PW12/B1 to Ex.PW12/B28. Request letter was moved to SHO Jait Pur, South East District, Delhi for providing the copy of FIR and other relevant records pertaining to FIR no.119/12 PS Jait Pur. The said letter is SC No.12/2013, FIR No.147/2012 Page 52 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Ex.PW33/H bearing my signatures at point A. Copy of seizure memo provided by IO of the said case is already Ex.PW19/A. HC Rattan Lal was sent to native place of accused to the state of Chhattisgarh from where he obtained the copies of four FIRs and relevant documents pertaining to the said FIRs and handed over the same to me. The said four FIRs alongwith the relevant documents were taken into police possession as per seizure memo already Ex.PW27/C bearing my signatures at point B. The said FIRs are marked as Mark A (colly).
The scaled site plan was prepared by SI Mahesh, the draughtman and the same was handed over me by him. Same is already Ex.PW5/A. Thereafter, the main chargesheet was prepared and was filed in the court. During the investigation, I had recorded the statements of witnesses from time to time.
On 23.03.2013, during the further investigation of this case, I went to Jammu alongwith SI Gautam Malik and obtained the documents pertaining to the purchase of double barrel shot gun weapon, case property in this case and the documents were provided by Dr. Varun Bhargava which was seized vide seizure memo already Ex.PW29/P bearing my signatures at point B. The said documents are already Mark A7, A8 and A9.
On 25.03.2013, we proceeded to the office of District Magistrate, Udhampur. I gave an application for verification of the renewal and validity of license to the ADM, Udhampur, J&K, carbon copy of which is Ex.PW33/J bearing my signatures at point A. The office of DM, Udhampur provided the reply vide Ex.PW33/K (not objected to).
On the same day, request was made to the office of DM, Doda, J&K for verification of issuance of license and the office provided its reply which is Ex.PW33/L (not objected to). the photocopy of office record of DM, Doda in this SC No.12/2013, FIR No.147/2012 Page 53 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 regard is Ex.PW33/L1 (not objected to). I had examined the relevant witnesses from the office of DM, Udhampur and DM, Doda. Offence U/s 25 Arms Act was dropped from the case and Sec.30 of Arms Act was added in the case. The reports from FSL were obtained and were submitted through first supplementary chargesheet. Second supplementary chargesheet was prepared with regard to investigation conducted from office of DM, Udhampur and Doda.
Accused Dharmender Kumar Tandan is present in court today (correctly identified).
I can identify the case property.
At this stage, MHC(M) has produced the case property. The parcel bearing Sr.no.N1 bearing case particulars of this case sealed with seal of this court is taken out. Seal got broken. Parcel opened. One axe (kulhari), having black handle and steel blade, is taken out. The axe is duly identified by the witness as already Ex.P1. One cut cloth pullanda bearing remnants of the seal MJ and bearing the case particulars of this case is also found in the parcel.
The parcel bearing Sr.no.N3, the case particulars of this case correct FSL number duly sealed with the seal of this court is now taken from the case property. The parcel is opened by breaking the seal, one blood stained Tshirt of blue colour and one shorts of blue colour, both having sharp cuts, paper slips having written the correct FSL number, are taken out from the parcel. The Tshirt and shorts are duly identified by the witness as already Ex.P2 being clothes of Tarun Kalra. One cut cloth pullanda bearing remnants of the seal MJ and bearing the case particulars of this case is also found in the parcel.
The parcel bearing Mark A having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL VSN DELHI is now taken SC No.12/2013, FIR No.147/2012 Page 54 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 out from the case property. Seal got broken. Parcel opened. One transparent plastic container having the remnants of seal of MJ on the doctor's tape bearing case particulars of this case having pasted FSL slip having the correct particulars pertaining to the exhibit is taken out purported to be blood stained piece of glass. Container is found empty. But the witness has identified the container stating that small piece of blood stained glass recovered from the spot was kept inside the said container in his presence as already Ex.P3.
The parcel bearing Mark B having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL VSN DELHI is now taken out from the case property. Seal got broken. Parcel opened. One transparent plastic container having the remnants of seal of MJ on the doctor's tape bearing case particulars of this case having pasted FSL slip having the correct particulars pertaining to the exhibit is taken out containing dry blood (pieces of blood clots). The contents have been identified by the witness as already Ex.P4.
The parcel bearing Mark Q1 having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL VSN DELHI is now taken out from the case property. Seal got broken. Parcel opened. One transparent plastic container having the remnants of seal of MJ on the doctor's tape bearing case particulars of this case having pasted FSL slip having the correct particulars pertaining to the exhibit is taken out containing blood in gauze. The contents have been identified by the witness as already Ex.P5.
The parcel bearing Mark Q2 having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL NPW DELHI is now taken out from the case property. Seal got broken. Parcel opened. One envelope having remnants of seal of FSL VSN DELHI containing one transparent plastic SC No.12/2013, FIR No.147/2012 Page 55 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 container having the remnants of seal of MJ on the doctor's tape bearing case particulars of this case having pasted FSL slip having the correct particulars pertaining to the exhibit is taken out. The box is containing pieces of rubber spring. The contents have been identified by the witness as already Ex.P6.
The parcel bearing Mark C having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL VSN DELHI is now taken out from the case property. Seal got broken. Parcel opened. One transparent plastic container having the remnants of seal of MJ on the doctor's tape bearing case particulars of this case having pasted FSL slip having the correct particulars pertaining to the exhibit is taken out containing glass control. The contents have been identified by the witness as already Ex.P7.
The parcel bearing Mark Q3 having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL VSN DELHI is now taken out from the case property. Seal got broken. Parcel opened. One transparent plastic container having the remnants of seal of MJ on the doctor's tape bearing case particulars of this case having pasted FSL slip having the correct particulars pertaining to the exhibit is taken out containing blood stained tile piece. The contents have been identified by the witness as already Ex.P8.
The parcel bearing Mark Q4 having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL VSN DELHI is now taken out from the case property. Seal got broken. Parcel opened. One transparent plastic container having the remnants of seal of MJ on the doctor's tape bearing case particulars of this case having pasted FSL slip having the correct particulars pertaining to the exhibit is taken out containing tile control. The contents have been identified by the witness as already Ex.P9.SC No.12/2013, FIR No.147/2012 Page 56 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 The parcel bearing Mark N2 having the case particulars of this case and FSL number F2012/B7164 duly sealed with the seal of FSL NPW DELHI is now taken out from the case property. Seal got broken. Parcel opened. Four open case cartridges and one missed fire cartridge are taken out which are identified by the witness as already Ex.P10 (collectively). One cut cloth pullanda bearing remnants of the seal MJ and bearing the case particulars of this case is also found in the parcel.
One white colour cloth pullanda duly sealed with the seal MJ bearing case particulars of this case and singed by IO of this case, purported to be containing shoulder bag plus scarf is taken out from the case property. Seal got broken. Pullanda opened. One redblack colour shoulder bag and one red multicolour scarf and one cartridge box are taken out from the pullanda. The said articles are identified by the witness as alrady Ex.P11 (collectively).
At this stage, one white colour cloth pullanda bearing Sr.no.N5, duly sealed with the seal NPW bearing case particulars of this case and correct FSL number, is taken out from the case property. Seal got broken. Pullanda opened. DBBL, double barrel shot gun of make Tusker Friends Company is taken out from the pullanda. One paper slip having the correct particulars and FSL number is found pasted on it. The said gun is identified by the witness as already Ex.P12. At this stage, one white colour cloth pullanda of Sr. No.N10, duly sealed with the seal FSL VSN DELHI bearing correct FSL number and case particulars of this case, is taken out from the case property. Seal got broken. Pullanda opened. One army uniform of military colour (shirt and pant), one white colour vest of make Beautiful Madan Fashion Wear, one pair of black colour military shoe, one pair creme colour socks and one green colour belt, all having blood stains, are SC No.12/2013, FIR No.147/2012 Page 57 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 taken out from the pullanda. Paper slips having the correct particulars and FSL number is found pasted on each of the item. The said articles are identified by the witness as already Ex.P13 (collectively).
At this stage, one sealed cloth pullanda sealed with the seal of this court bearing case particulars of this case isproduced by the MHC(M). Seal got broken. Pullanda opened. One black colour mobile phone of make Samsung is taken out, which is identified by the witness as already Ex.P14."
Statement under Section 313 CrPC Accused denied all the allegations in his statement. Defence Evidence DW1 Dharamendra Kumar Tandan Accused examined himself under Section 315 CrPC. I reproduced his testimony as under :
"I filed RTI application dated 14.01.2016, which is Ex.DW1/33. I received reply of this application, which is Ex.DW1/34. An envelope is Ex.DW1/35.
I filed RTI application dated 29.03.2016, which is Ex.DW1/36 and reply of the same is Ex.DW1/37. An envelope is Ex.DW1/38.
I have also filed standing order of Delhi Police,which is Ex.DW1/39 and attested copy of statement of Ms. Sangita is Ex.DW1/40. I have also filed an application regarding RTI, which is Ex.DW1/41 and the reply of the same is Ex.DW1/42. I have also filed an application regarding RTI dated 23.02.2016, which is Ex.DW1/43 and reply of the same is Ex.DW1/44. An envelope is Ex.DW1/45. Photocopy of RTI application is Ex.DW1/46 and its reply is SC No.12/2013, FIR No.147/2012 Page 58 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Ex.DW1/47 and replies dated 22.02.2016, which is Ex.DW1/48 and Ex.DW1/49.
I file RTI application dated 18.01.2016, which is Ex.DW1/50 and reply of the same is Ex.DW1/51. An envelope is Ex.DW1/52. Standing order no.219/10 is ex.DW1/53 and guidelines for police officers on making arrest is Ex.DW1/54."
DW2 ASI Rajesh Kumar, Dealing Assistant RTI Cell, PHQ, Delhi brought the record of RTI application of accused dated 25.4.2016 and reply of PIO, which are Ex.DW1/A11 and Ex.DW1/A
12. DW3 Ct. Rajinder Singh brought the record of RTI application of accused dated 12.2.2016 and reply of PIO, which are Ex.DW1/D and Ex.DW1/E. DW4 Smt. Kamla testified that Sangeeta used to reside with accused in Gurgaon under the same roof.
DW5 SI Jagdish Kumar identified the signatures of DCP Ashok Malik, the PIO on reply Ex.DW1/A30.
DW6 Inspector Praveen Kumar brought the record of replies to RTI applications by PIO. The reply are Ex.DW1/A20, Ex.DW1/A25 & Ex.DW1/A28.
DW7 ASI Rajesh Kumar proved the RTI application form under Section 6(3) of RTI Act vide letter no. 16721673 dated 13.01.2016.
SC No.12/2013, FIR No.147/2012 Page 59 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 DW8 SI Rajender Singh brought the circular no. 5/2013 regarding seeking permission from the concerned court for conducting FSL examination, copy of which is Ex.DW1/A32.
DW9 SI Praveen Mann brought the reply to the RTI application by the PIO Sh. Birjender Singh Yadav, PIO, North District vide RTI application no. 8795/ID 1805/2014 dated 5.8.2014, addressed to accused. The reply is Ex.DW1/A15.
Final Arguments I have heard the rival submissions and I am discussing the same under following heads :
Presence of eye witnesses at the spot, withholding of evidence and motive.
Ms Chitra Mal, Ld. Legal Aid Counsel for accused argues that PW13 Sarthak was not present at the spot because PW20 Gopal has testified that Sarthak came after Dr. Sanjiv Dhawan had been shot. I disagree with this submission. PW20 Gopal Gosain, the cook in the house of deceased, has clarified that Sarthak had also reached balcony when fire was shot at the doctor. Therefore, from the testimony of PW20, it is clear that Dr. Sanjiv Dhawan was shot in presence of his son Sarthak.SC No.12/2013, FIR No.147/2012 Page 60 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 It is further argued by Ld. Defence Counsel that PW18 Naresh Goel, PW21 Shivansh Dandon, PW22 Sandeep Kwatra and PW26 Tarun Kalra were also not present at the spot nor had they witnessed anything. Had they witnessed the incident, the FIR would have been registered on the statements of these witnesses. On the other hand, Inspector Manish Joshi (PW33) reaches the hospital, where he records statement (Ex.PW13/A) of Sarthak. Ld. Defence Counsel has drawn my attention to the MLC of deceased Ex.PW1/A in which it is specifically mentioned that the injured was brought by Sarthak Dhawan. In this MLC, it is specifically mentioned that patient was brought to casualty with alleged history of gun shot injury in left side of chest by unknown person at home at 3:00 am on 19.9.2012. Ld. Defence Counsel argued that actually Sarthak Dhawan is not the eye witness and he never knew as to who had shot his father. It is only at the instance of police that the name of accused was mentioned in statement Ex.PW3/A by Sarthak Dhawan.
I have perused the MLC Ex.PW1/A. This shows that Dr. Prashant Kumar examined Dr. Sanjiv Dhawan at about 3:32 am on 19.9.2012. The time of incident is about 2:30 am to 3:00 am. Dr. Sanjiv Dhawan was brought to hospital actually by two persons namely Sarthak Dhawan as well as by Sandeep Kwatra (PW22).
SC No.12/2013, FIR No.147/2012 Page 61 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 PW13 being a son must have been under tremendous psychological trauma, which must have been exaggerated from the fact that when he was knocking the doors of the neighbours, no one was coming forward to help him out of fear. Therefore, it could be possible that he could not have told the name of offender. Ld. Defence Counsel drew the attention of PW13 to the alleged history of being shot by unknown person as recorded by the doctor under Section 145 of Indian Evidence Act. The witness (PW13) clarifies that he told the doctor that his father had been fired at. However, he did not tell to the doctor that Dharamendra Kumar Tandan fired at his father. Ld. Defence Counsel did not ask for the reason for it in cross examination. I may point out that at such a grim occasion, it would be too much to expect that a son, whose father had been shot at in most unexpected manner, would be cool enough to tell all the facts to the doctor. However, shortly thereafter i.e. 4:30 am, within two hours of the incident, PW13 would have regained some balance of mind, when he made the statement to police. The timing of the recording of statement Ex.PW13/A cannot go beyond 4:30 am because the FIR was promptly registered at 4:40 am (see FIR Ex.PW11/D). The accused in the present case was arrested at about 11:30 am as per arrest memo Ex.PW29/H i.e. after about seven hours from the SC No.12/2013, FIR No.147/2012 Page 62 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 recording of statement Ex.PW13/A. At 4:30 am, neither PW13 had any reason to introduce the name of accused falsely nor Investigating Officer had any knowledge or any motive to falsely suggest the name of accused to PW13 for mentioning it in his statement. Therefore, non mentioning of the name of accused in the alleged history in MLC Ex.PW1/A is not fatal to the prosecution.
The perusal of the statements of PW18 Naresh Goel and PW26 Tarun Kalra show that they were so terrified by this incident that they did not even open the door when son of the deceased was shouting for help and knocking their door. In such a circumstance, it can be understood that they were not in fit state of minds to lodge FIR with police. PW22 Sandeep Kwatra had taken the deceased in his car to hospital. Therefore, he was present in the hospital but was not available at the spot to make a statement to police for lodging FIR.
Ld. Defence Counsel has assailed the testimony of PW20 Gopal Gosain. Ld. Defence Counsel has drawn my attention to his cross examination in which he stated that he did not inform the police from the house of Dr. Sanjiv Dhawan. It is submitted that had he witnessed the scene, he would have rang up the police immediately. I am not inclined to accept this argument. PW20 was the cook at the house of deceased. He was present at the time of incident. At such a SC No.12/2013, FIR No.147/2012 Page 63 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 critical time, his duty was to take care of the injured, while the son of deceased was trying to get help from the neighbours. At such a situation, informing police was not his priority. Therefore, to disbelieve his version about his presence at the spot at the time of incident would be unjustified.
Ld. Defence Counsel argues that Sangeeta was the most important witness in this case. As per prosecution, this witness was present when accused shot at Dr. Sanjiv Dhawan. However, she was not examined by prosecution and therefore, prosecution has deliberately withheld the evidence of Ms Sangeeta. It is argued by Ld. Defence Counsel that had Ms Sangeeta been residing in the house of Dr. Sanjiv Dhawan and had seen the incident, there is no reason as to why she did not lodge FIR or made a complaint to police immediately after the incident. Ld. Defence Counsel argues that prosecution has led no documentary evidence to prove that Ms Sangeeta used to reside in the house of Dr. Sanjiv Dhawan. On the other hand, accused has examined DW4 Kamla, who has testified that Ms Sangeeta used to reside with accused in Gurgaon. Therefore, when Ms Sangeeta was not residing in the house of Dr. Sanjiv Dhawan, accused has no motive and no reason to go to the house of Dr. Sanjiv Dhawan with a demand of return of Ms Sangeeta to him.
SC No.12/2013, FIR No.147/2012 Page 64 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 I have considered the submissions of Ld. Defence Counsel. I may point out that the statement under Section 164 CrPC of Ms Sangeeta (Ex.PW28/B) was recorded by Sh. Rakesh Kumar Singh, Ld. Metropolitan Magistrate on 21.9.2012. The date of incident is 19.9.2012. The police had recorded the statement of Sarthak Dhawan (PW13) on 19.9.2012 itself in the hospital by the Investigating Officer. SI Gautam Malik (PW29) testified that on the intervening night of 18/19th September 2012, he was on emergency duty and he proceeded at the spot on receiving the information of the incident through DD No.4A and 5B. Thereafter, Inspector Manish Joshi, SHO PS Rajinder Nagar (PW33) also reached there. Both of them observed blood lying scattered and marks of bullets etc. and on inquiry, they came to know that the deceased had been removed to Sir Ganga Ram Hospital. Therefore, leaving SI Gautam Malik at the spot for safe guarding the same, Investigating Officer left for the hospital. PW29 cordoned of the area. In hospital, IO (PW33) recorded the statement of Sarthak Dhawan and thereafter, reached at the place of occurrence. As per the testimony of PW29 and PW33, maid Ms Sangeeta Kaur was interrogated, who agreed to call accused telephonically. Thereafter, a raiding party was constituted and Ms Sangeeta Kaur reported that accused had agreed to meet her near Gole Chambry, Hanuman Murti, SC No.12/2013, FIR No.147/2012 Page 65 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Pusa Road, Delhi. The police took Ms Sangeeta Kaur in Gypsy and at her pointing out, accused was overpowered, while he was sitting in an auto. Therefore, whereas the FIR was lodged on the statement of son of deceased, there was no reason to record FIR on the statement of Ms Sangeeta Kaur. It is natural for the Investigating Officer to immediately proceed the hospital to know the status of the injured leaving PW29 at the spot. The mandate to PW29 was to safe guard the scene of crime. When Investigating Officer reached the hospital, he met Sarthak Dhawan, an eye witness, and therefore he recorded his statement and got FIR registered. It was not for PW29 to record the statements because it was primarily job of Investigating officer. PW29 and PW33 had found Ms Sangeeta Kaur at the spot and there is no reason to disbelieve this part of evidence. PW13 as well as PW20 have both testified that Ms Sangeeta Kaur used to reside at the house of the deceased. Therefore, presence of Ms Sangeeta Kaur at the spot stands proved. Not only this, she fully participated and cooperated with the police in arresting the accused. Therefore, even if no documentary proof is available on record to prove that Ms Sangeeta Kaur was residing in the house of deceased, I do not find any substance in the submission of the accused that at the relevant time she was residing with accused at Gurgaon. The testimony of DW4 SC No.12/2013, FIR No.147/2012 Page 66 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Kamla is of no benefit to the accused because she does not specify the period when she used to talk to Ms Sangeeta on telephone. Rather she supported the prosecution case that Ms Sangeeta Kaur and accused used to stay together. As per prosecution case and as per complaint Ex.PW13/A, Dr. Sanjiv Dhawan had engaged Ms Sangeeta Kaur as domestic servant and accused, while claiming himself to be husband of Ms Sangeeta Kaur, used to threaten Dr. Sanjiv Dhawan to return her to him, otherwise he will face dire consequences.
Therefore, if the evidence of DW4 Kamla is read with the statements of PW13 Sarthak Dhawan and PW20 Gopal Gogain, it is clear that earlier Ms Sangeeta Kaur and accused used to reside together and thereafter Ms Sangeeta Kaur left him and started living in the house of Dr. Sanjiv Dhawan as a household servant. This was not tolerable for the accused, who first threatened Dr. Sanjiv Dhawan and thereafter killed him.
Ld. Defence Counsel has argued that as to why Dr. Sanjiv Dhawan did not make a complaint to police, when accused threatened him in hospital. I am of the opinion that Dr. Sanjiv Dhawan is not alive and therefore, it is not clear as to what kind of threat was given by the accused to him and whether Dr. Sanjiv Dhawan really took it seriously. Normally people ignore the minor events and do not report SC No.12/2013, FIR No.147/2012 Page 67 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 same to the police. It is necessary to mention here that the call detail record (CDR) Ex.PW6/E shows that Dharamendra Kumar Tandan on his mobile phone no. 9540122693 had conversation with Dr. Sanjiv Dhawan on his mobile phone no. 9811071244 on 18.9.2012 at 21:28:46 to 21:52:05 (four times) and thereafter from 22:13:41 to 22:18:17 (three times). These CDRs have been proved by PW6 Israr Babu, the Nodal Officer from Vodafone Mobile as Ex.PW6/E in respect of aforesaid mobile phone of Dr. Sanjiv Dhawan. PW6 Israr Babu had proved the customer application form and copy of driving license of the mobile phone no. 9811071244 of Dr. Sanjiv Dhawan as Ex.PW6/D. PW4 Pawan Kumar, Nodal Officer Idea Cellular Ltd. proved that mobile phone no. 95401222693 belongs to accused. He proved the CAF and copy of driving license of accused, which is Ex.PW4/A. Thus from the CDR Ex.PW6/E, it stands proved that accused was conversing with Dr. Sanjiv Dhawan on 18.9.2012 not once but seven times, which corroborates the testimony of PW13 Sarthak Dhawan that Dr. Sanjiv Dhawan had told him that even on that day (i.e. 18.9.2012), he had received similar threat calls on phone from accused Dharamendra Kumar Tandan. Therefore, even if Dr. Sanjiv Dhawan has not reported the earlier threats of the accused, the same cannot come to the rescue of the accused.
SC No.12/2013, FIR No.147/2012 Page 68 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Therefore, not only the presence of PW13 and PW20 as well as of Ms Sangeeta Kaur at the spot at the time of incident cannot be denied but also their status as eye witness to the incident stands established. I would like to add here that till the recording of the statement Ex.PW13/A (i.e. till 4:30 am, when the rukka was written by Investigating Officer), accused had not been arrested and Investigating Officer came to know about the name of accused and name of Sangeeta from Sarthak Dhawan himself. The statement of Sarthak Dhawan had been recorded just after two hours of the incident. Therefore, it can be said that FIR was promptly registered and Sarthak Dhawan could specifically name the accused only because he knew the previous history of threats being extended by accused to his father and had seen accused firing at his father. His father had told the name of the accused to PW13, when accused previously threatened him. PW13 also testified that when accused shot at his father, he told PW13 to catch Dharamendra, who had shot him. This is how PW13 came to know the name of the accused. It was after recording of statement of PW13 that Investigating Officer came to know the name of accused and Sangeeta Kaur. Then PW33 interrogated her. It was Ms Sangeeta Kaur, who was also the eye witness, got the accused arrested.
SC No.12/2013, FIR No.147/2012 Page 69 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 So far as non examination of Ms Sangeeta Kaur by prosecution is concerned, the same is not deliberate because despite best efforts, the summons could not be served upon her during trial as she was not traceable. It appears that fear of accused has made that lady to shift from her residence without leaving her new address.
Ld. Defence Counsel has argued that Ms Jyoti, the mother of PW13, has not been cited as a witness. Ld. Defence Counsel has drawn my attention to the testimony of PW13, who has stated that on 18.9.2012 at about 9/10:00 pm, he, his father and mother were having dinner when his father told him that even on that day he received threat call on phone from Dharamendra Kumar Tandan that he would kill him in case he did not send Ms Sangeeta Kaur back. I am of the opinion that it is not required for investigation or prosecution to cite each and every witness to prove an event. The testimony of PW13 in this regard is credit worthy and even if Ms Jyoti had not been cited/examined, it cannot be said that material witness has been withheld by the prosecution.
Ld. Defence Counsel submits that there is no reason as to why Ms Sangeeta Kaur should not make a complaint to police about the threats. Ld. Additional Public Prosecutor submits that Ms Sangeeta Kaur is a poor lady, who was trying to get rid of the accused SC No.12/2013, FIR No.147/2012 Page 70 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 somehow. In fact she was extremely harassed by the accused. This is clear from the cross examination of PW20 Gopal Gosain, who testified that Smt. Sangeeta Kaur used to talk on a mobile phone and during conversation she was always found weeping. On the other hand, Ld. Defence Counsel submits that PW20 Gopal Gasain has stated in cross examination that he never inquired from her as to why she used to weep during conversation on mobile phone and that she never told him that she was fed up with the accused.
I have considered the submissions. It must be kept in mind that she would not have liked to discuss her personal issues to everyone and it is fit for a normal human being to keep privacy about her personal life. Therefore, I do not agree with Ld. Defence Counsel that if a person is threatened, she must have made a complaint to police and to everyone.
Thus, I conclude that the eye witnesses very much present at the time of incident. Their testimonies are truthful. No evidence has been withheld by the prosecution deliberately and prosecution has also proved that accused had a motive to kill Dr. Sanjiv Dhawan.
Whether medical evidence corroborates ocular evidence Ld. Defence Counsel has drawn my attention to the SC No.12/2013, FIR No.147/2012 Page 71 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 testimonies of PW13 and PW20. As per these testimonies as well as per investigation and as per FIR, the deceased was standing on the balcony of the first floor and accused was standing in the lane. Therefore, if a shot is fired from the ground level towards the first floor, the trajectory of bullet inside the body would be from lower side to upper side. Ld. Defence Counsel has referred to the observation of postmortem doctors under the head "Track of the projectile", which suggests that fire was shot when shooter and victim were standing on equal platform. It is argued that this is the reason that the track of projectile was not from lower side to upper side. I have considered the testimony of Pw8 Dr. Sreenivas, who conducted autopsy and made observations in his report Ex.PW8/A. No question had been put to him as to whether the track of bullet was from down to upward or was it straight. Even perusal of the "Track of projectile" would show that the projectile passed through the muscle layer of sixth I C space on left side and sixth and seventh ribs were fractured. Thereafter, it caused a rupture of the left dome of diaphargm. It then tore posterior wall of left ventricle pulverizing and then entered the vertibral column. This trajectory is on account of the reason that the bullet first hit the ribs and then took its own course. Therefore, it is not necessary that bullet should take a direct route from lower side to up SC No.12/2013, FIR No.147/2012 Page 72 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 side. At page 6 of the postmortem report Ex.PW8/A, it is mentioned that the track of metallic projectile within the chest is directed backwards, upwards and slightly right. This finding is not incongruent to the situation of firing from lower level, which hits an object (i.e. deceased) who stood at a higher level, rather it supports the prosecution case that bullet was shot while the accused was standing on ground floor and the deceased was standing on the balcony of the first floor of his house.
Hence, no benefit can be given to the accused on this count.
The parts of bullet recovered from the dead body not produced in the court The postmortem report Ex.PW8/A shows that at page 6, a SCHEMATIC DIAGRAM OF THE PROJECTILE is prepared. This projectile has been described in the postmortem report as under :
"Projectile: it is a lead slug weighing about 26 grams and having dimensions as depicted in the diagram below. The leading portion of the projectile shows marks with a spiral pattern on its surface. The lower portion of the projectile had a concavity present applied to which, were multiple circular shaped, brownish coloured, wads. The slug and the wads were wrapped in cotton wool sealed in a labeled plastic jar and handed over to the I.O."SC No.12/2013, FIR No.147/2012 Page 73 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 It is not in dispute that aforesaid lead slug and wads, (which are parts of projectile), were not produced and were not proved in the court. Ld. Defence Counsel submits that this is the serious discrepancy in the prosecution case. Ld. Additional Public Prosecutor admits that this projectile was seized by IO and was also sent to FSL but the same was not produced and exhibited during trial. At the time of final arguments, this issue was raised and I have noted this fact in my order sheet dated 25.7.2017. I have also noted in this order sheet that this projectile was sent to FSL and was subjected to DNA testing and the FSL report is Ex.PW29/Q. Ld. Defence Counsel submits that it would have been appropriate if this projectile would have been sent for examination to ballistic expert for an opinion as to whether it could be fired from the gun in question or not, specially in view of the fact that the dimension of the lead slug is shown to be 2.4 cm in the postmortem report, whereas the diameter of four cartridges recovered from the spot is 2.3 cm as shown in the sketch of cartridges (Ex.PW29/B).
When this issue was raised during final arguments, I had called for the lead projectile (slug) and the shot gun and tried to fix this slug in the barrel of the shot gun. I found that the slug is a bit larger than the diameter of the shot gun. Thus, it does not fit in the SC No.12/2013, FIR No.147/2012 Page 74 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 barrel. But I agree with the submissions of Ld. Additional Public Prosecutor, who submits that only lead portion of the projectile entered the body of deceased, whereas the comparison has to be made from the metal cartridge case with the gun from which the same is alleged to have been fired. I also agree with the submissions of Ld. Additional Public Prosecutor that due to heat and force, the lead projectile cannot remain in the same shape and it will be deformed. Therefore, even if it is bit larger than the diameter of the barrel of the shot gun, it is natural. In these circumstances, the lead piece of the projectile recovered from the dead body would not yield any result specially when the lead part gets heated up distorted and expanded due to heat on being fired. Still this piece was required to be sent to ballistic division of FSL. However, it appears to be a bonafide mistake. It must be kept in mind that this piece was sent to biological division for DNA testing but was not sent to ballistic expert for examination as to whether it was fired from the DBBL gun or not. As per the FSL report (DNA examination unit) Ex.PW29/Q, the two metallic pieces Ex.N6 (see recovery memo Ex.PW23/A) were handed over by Dr. Srinivasan to Investigating Officer. I.O. has sent source of Ex.A i.e. piece of glass from second floor, Ex.Q3 i.e. piece of marvel from first floor, Ex.N3b i.e. knicker of Tarun Kalra, Ex.N5 i.e. shot SC No.12/2013, FIR No.147/2012 Page 75 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 gun, Ex.N8 blood stained gauze cloth of the deceased and Ex.N10b i.e. Baniyan for DNA testing. As per this report, blood was found on Ex.N6 but its DNA could not be detected. The purpose of sending the articles for DNA testing is not clear. Therefore, sending the projectile to DNA testing serves no purpose. The only thing I can say is that the lead recovered from the body of deceased should have been sent to ballistic division instead of biological division. However, this deficiency in investigation does not affect the prosecution case in view of the direct eye witness's account.
Other Discrepancies Ld. Defence Counsel has drawn my attention to the fact that as per the MLC Ex.PW1/A, the time of examination of the patient is written as 3:32 am. Thereafter, postmortem was conducted but as per postmortem report Ex.PW8/A, the date and time of death is written as about 3:38 am. I am of the opinion that this is only a typing mistake because this time had been written on the basis of hospital records on page 2.
It is submitted that as per DD No. 7/B (supplied to accused in response to a reply under RTI Act, which is Ex.DW1/A28) recorded at 4:12 am refers to MLC No.51/2012, whereas actually the SC No.12/2013, FIR No.147/2012 Page 76 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 MLC Ex.PW1/A is 052/2012. Moreover, in this DD entry Ex.DW1/A 28, the father's name of deceased as K. M. Dhawan, whereas actually the father's name is K. N. Dhawan. It is argued by Ld. Defence Counsel that had this information being supplied by son of deceased, it would not have been incorrect. Therefore, it is argued that actually PW13 i.e. the son of deceased did not take his father to hospital because he was actually not present at the spot. Moreover, house number of the deceased in this DD no.7/B is written as M308, whereas it is actually 49/50, Double Storey, Rajinder Nagar, Delhi. Had these particulars been given by PW13 himself, there would not have been such type of recording wrong facts.
I am of the opinion that submissions of Ld. Defence Counsel are far fetched. These are the small mistakes, which happen due to inadvertence or due to communication gap.
Ld. Defence Counsel further submits as under :
1. That no request for preservation of dead body is placed on judicial file by the prosecution.
2. That no statement of any person from PCR No. 2832 is taken by the I.O.
3. That no statement u/s 161 Cr.P.C. of PW2 SI Hira Singh is on judicial record nor any notice u/s 91 Cr.P.C. to this witness has been proved by the prosecution.SC No.12/2013, FIR No.147/2012 Page 77 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017
4. That no mention of bleeding by the accused is mentioned in M.L.C. of accused Ex.PW3/A either it is mentioned nor requisite by the I.O. regarding smell of Barood presence of gun powder/explosive smoke/ carbon.
5. That no request of I.O. for blood sample of accused.
6. Regarding call records by PW4, PW6 and PW7, no notice u/s 91 Cr.P.C. is on record nor they initially preserve the call record.
7. That no request to call to crime team at the spot or visiting the spot for scaled site plan is placed on record by the prosecution.
8. That in postmortem report Ex.PW8/A direction of firing, angle of firing and bullet entry, trajectory of round and velocity of round, entry of bullet in wound of deceased body, egress and ingress of fire arm are not described. I.O. has not sought opinion for if weapon is freshly fired.
9. That tattoos are formed from the weapons barrel of which weapon have groves, weapon of accused is smooth barrel, hence no question of tattoo arises.
10. No site plan was prepared on the day of incident or following day at the instance of the complainant.
11. That seizure memo of visra of deceased is not on judicial record.
SC No.12/2013, FIR No.147/2012 Page 78 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017
12. That Ex.PW8/A i.e. Postmortem report does not describe I.O. has collected anything from the doctor.
13. That no blood observed in balcony as per statement of Ct. Ashwani, PW15, statement of Sarthak Dhawan PW13 and site plan Ex.PW11/D.
14. That no photograph of balcony, room or floor showing blood placed on record.
15. That name and number of police constable is blank in Ex.PW8/A6 and it is also does not bear any seal or attestation by the S.H.O. or A.C.P.
16. Seizure memo of personal search items of accused prepared by the I.O. is not on judicial record.
17. Prosecution has placed two copies (one is Ex.PW8/A3 and Ex.PW11/A) of D.D. No. 4A and contents of both are different.
18. PW11 stated "I handed over copy ..................... motorcycle." While RTI DW1/A30 denies this fact and certificate u/s 65 B is not on record and MLC depicts "by some unknown person", column no.14 and 15 are blank in F.I.R. and F.I.R. does not talk about section 307 IPC.
19. Departure entry and arrival entry of S.H.O. before or after arrest of accused, disclosure of accused and identification of accused are not available on record.
20. Woman Ct. Anju is not examined to prove PCR Call, request for PCR form/PCR PHQ D.D. entries are not placed on SC No.12/2013, FIR No.147/2012 Page 79 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 record.
21. Ex.PW33/A depicts DO signed at 4.40 AM and F.I.R. is registered at 5.10 AM as per Ex.PW11/D and further F.I.R. describes to inform crime team while crime team visited at 4.00 AM (prior to receiving tehrir and information which shows these are manipulated documents).
22. Prosecution has also not placed any documents to call crime team and photographer at the spot and how without any information they reached at the spot at 4.00 AM and remained there upto 7.00 AM. (prior to information at P.S.).
23. No ballistic expert or finger print expert was called at the spot, hence no expert opinion could be obtained regarding marks of bullet and finger print, foot print, chance print.
24. No police official, no public person, no crime team member, no neighbour, no family member are visible in photograph PW12/B1 to PW12/B28 and same are not attested or signed by the ACP or SHO concerned as they are manipulated later on.
25. That Xray plate of deceased is not placed on judicial file.
26. That MLC PW1/A does not depict that clothes of deceased were handed over to the I.O.
27. That D.D. No.5 regarding call of Shivansh Dandona i.e. Ex.PW11/B is not part of Ex.PW8/A (inquest papers) and it is prepared after thought and made Shivansh Dandona witness after thought.
SC No.12/2013, FIR No.147/2012 Page 80 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017
28. That D.D. No.9A i.e. Kaymi entry is not placed on record.
29. That as per DW1/A22 FSL report was received on 11.12.2014 and same was filed on 04.03.2015 before the court alongwith supplementary charge sheet after huge delay of more than 2 months.
30. That I.O. admitted in his examination that area of Rajinder Nagar is barricaded and there is only one gate where C.C.T.V. camera is installed no footage is collected by the I.O. nor any statement is recorded that camera was out of order on that day.
31. That no D.D. entry vide which FSL result was collected placed on judicial file.
32. That no details of gun and cartridges mentioned in FSL form.
33. That no sketch of recovered rubber spring and no opinion is sought regarding this rubber spring.
34. That no document is on record showing that gun and cartridges were having any blood stains such as (sketch and fard etc). No blood spot on the paper on which sketch was prepared by putting the gun on the paper. No document to show that Sangeeta came to P.S. and from there they all i.e. police team and Sangeeta when to gole Chamburi. No log book, no footage, no D.D. or any other document, no TSR No., no statement of TSR driver, no documents regarding signal/used to mobile by the police placed on judicial file.
SC No.12/2013, FIR No.147/2012 Page 81 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017
35. That recovery of cartridges is from open space after a long time of incident as deposited in Malkhana after 5.00 PM. Possibility of tampering cannot be ruled out.
36. That seal is got prepared by the I.O. himself and not issued by the department. Sanctity of seal is doubtful, no memo regarding handing over and taking over of seal is placed on the record.
37. That no ballistic expert is called at the spot.
38. That no site plan of place of arrest of accused is prepared.
39. That prosecution is silent about the possession of axe by the accused.
40. That it is also improbable that I.O. did not took any weapon at the time of leaving for spot from the P.S. after knowing well that firing is continued.
41. That servant verification register have not been produced by the prosecution before the court showing presence of Sangeeta at spot.
42. That no opinion is sought to match recovered projectile and gun.
43. That it is highly improbable that if deceased was aware regarding threats by the accused and was hearing the gun shot then no prudent person will come out from his house.
SC No.12/2013, FIR No.147/2012 Page 82 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017
44. That till the statement of complainant i.e. 9.30 AM, no case u/s 307 IPC regarding Tarun Kalra is registered and not an iota is on record regarding the charges of 307 IPC.
45. That prosecution did not record the statement of witnesses available at the spot.
46. Document Ex.DW1/A and DW1/E shows that Delhi police visited house of accused and handed over the household articles and documents of accused to Sangeeta after vacating the premises of accused. If Sangeeta was not residing with the accused and accused was having adverse interest against Sangeeta then why police handed over his articles to Sangeeta.
47. That Sangeeta told in 164 Cr.P.C. regarding removing of deceased in the ambulance while Sarthak deposed removing of deceased in the Car.
I have considered the aforesaid submissions of the accused. Minor discrepancies in the details are bound to occur when the investigation involves collection of numerous pieces of evidence. Ld. Defence Counsel has pointed out as to what the Investigating Officer should have done or what he did not do. However, the Investigating Officer has to collect only required evidence and further the prosecution would lead only relevant evidence in the court. Prosecution is not under a duty to examine and place on record everything which the Investigating Officer has collected. Similarly, SC No.12/2013, FIR No.147/2012 Page 83 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Investigating Officer is also no required to examine every witness and seize every document. Ld. Defence Counsel has not been able to explain as to how the discrepancy in investigation has led to any prejudice to the accused or how it has caused miscarriage of justice. Ld. Defence Counsel has also not been able to convince this court as to how the aforesaid discrepancies would lead to grant of any benefit of doubt to the accused. All the aforesaid points raised by Ld. Defence Counsel are very minor and do not shake the prosecution.
Whether investigation is fair?
Ld. Defence Counsel has pointed out that the IO (PW33) Insp. Manish Joshi admitted in the cross examination that "I do not lodge any departure entry."
Ld. Defence Counsel has further pointed out that the IO again said "I have not placed on judicial the copy of log book of government vehicle".
Ld. Defence Counsel has further pointed out that the IO admitted during cross examination "it is correct that some documents of inquest proceeding were prepared after arrest of the accused." The said documents (inquest paper/viscera pertaining to the deceased) not placed on record.
SC No.12/2013, FIR No.147/2012 Page 84 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Ld. Defence Counsel has further pointed out that IO did not use the gloves at the crime scene. He testified that crime team had used the gloves at scene of crime but said gloves were not seized by him.
Ld. Defence Counsel has further submits that IO (PW33) admitted that no sketch of rubber spring was made by him and no opinion sought by the IO from FSL.
Ld. Defence Counsel has further pointed out that the IO did not prepared any document/memo regarding handing over the seal.
Ld. Defence Counsel has further pointed out that the IO does not remember the name of official, who had collected FSL result/report.
Ld. Defence Counsel has further pointed out that the IO Insp. Manish Joshi, cross examination dated 8.8.2016 has falsely stated about purchasing of cartridges by accused from Varun armory, Jammu, without any evidence.
Ld. Defence Counsel has further pointed out that the IO stated "I do not remember if any DD entry was lodged with regard to sending the copy of FIR to the area MM. I had not recorded the statement of PCR official. I did not collect PCR form during SC No.12/2013, FIR No.147/2012 Page 85 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 investigation." Thereafter, he stated "I do not remember the FIR dispatch number of the present case.
Ld. Defence Counsel has further submitted that PW29 SI Gautam Malik has failed to give the time sequence of his involvement during the investigation of the case on 18/19.9.2012. He claimed that he was on emergency duty while emergency duty is only for 12 hours and it is not possible for him to stay continue during investigation without taking rest as he is given to the personal after emergency duty.
Ld. Defence Counsel has further submitted that SI Gautam Malik (PW29) admitted in his cross examination that IO Inspector Manish Joshi (PW23) had prepared the site plan on pointing out of complainant thus accused has no role in it. He denied having seen any crime team on spot and testified that IO recorded statement of servants of Dr. Sanjiv Dhawan at spot while PW13 denies this fact also.
Ld. Defence Counsel has further submitted that SI Gautam Malik (PW29) denies to have seen remember any departure entry made at police station for Gole Chamber and metro station of Karol Bagh.
SC No.12/2013, FIR No.147/2012 Page 86 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Ld. Defence Counsel has further submitted that SI Gautam Malik further admitted that site plan of place of arrest of accused was not prepared by the IO and that one security guard was there at the back side of the building at the time of incident. He denied to have remember the time of various proceedings investigation.
Ld. Defence Counsel has further submitted that Investigating Officer Insp. Manish Joshi (PW33) testified that he does not remember any blood on recovered cartridges. SI Gautam Malik (PW29) does not remember if the cartridge recovered from the park was having blood stains.
Thus, it is argued by ld. Defence Counsel that PW29 SI Gautam Malik has no consistency in his statement and he does not remember all the crucial events during investigation of the case. Hence it is argued that all work was done in police station and nothing happened as put by PW29 in the case.
Ld. Defence Counsel has further submitted that Inspector Manish Joshi claimed that the civil clothes were provided to the accused at the police station New Rajinder Nagar. It is submitted that actually the civil clothes were of accused already worn by him before he was lifted. Ld. Defence Counsel submits that Investigating Officer did not put any documentary evidence regarding the alleged army SC No.12/2013, FIR No.147/2012 Page 87 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 clothes as to where from it was tailored and officials symbols of the army dress and thus the same is highly suspicious and appears to be planted on accused with the blood of the deceased on the vest of accused to implicate him.
Ld. Defence Counsel has further submitted that PW33 IO also admitted in his cross examination that on the design of recovered gun he had not shown the portion where the blood was detected.
Ld. Defence Counsel has further submitted that the IO PW33 deposed that he did not remember if he had sent the special report to concerned Ld. MM regarding the murder of deceased in present case which was owing to the facts that the FIR was ante timed.
Ld. Defence Counsel has further submitted that PW33 IO admitted that he does not recollect if any servant verification was got done by Sanjiv Dhawan regarding Smt. Sangeeta Kaur.
Ld. Defence Counsel has further pointed out that PW33 IO admitted he did not make any inquiry regarding purchase of Axe by the accused. He had not got issued any weapon at police station before rushing to the spot. He did not personally verify the address of native place of Sangeeta Kaur. IO also admitted that when all police officials were changing the clothes, Sangeeta Kaur was present at the SC No.12/2013, FIR No.147/2012 Page 88 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 PS. But her statement was not recorded promptly.
Ld. Defence Counsel has further pointed out that PW33 Insp. Manish Joshi (IO) has denies to have remembered almost every crucial links necessary to complete the sequence of investigation as alleged by him.
I have carefully scrutinized the aforesaid evidence and statements of witnesses. I have already discussed that out of hundreds of documents and witnesses only few are relevant for the purpose of investigation and fewer for the purpose of prosecution. Simply by pointing out the defects, defence will not succeed. It must be kept in mind that defects should be substantial enough to demolish the prosecution case. None of the aforesaid submissions convinces me that there is any serious defect in the investigation or the investigation was biased. In my opinion the investigation is sufficiently efficient and fair.
What is proved by defence documents Ld. Counsel for accused submits that Ex.DW1/A proved that if Sangeeta Kaur was prime witness and living with deceased family in Rajinder Nagar then why the house hold articles of accused handed over to Sangeeta by the Delhi Police and that it proves that SC No.12/2013, FIR No.147/2012 Page 89 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 accused Dharamendra Kumar S/o Sh. D. B. Tandan and Sangeeta Kaur D/o Sh. Harnam Singh both were living together on the night of incident 18/19.9.2012 i.e. month of September 2012 in village Wazirabad, Gurgaon Haryana the same is proved by Ex. DW1/E by DW3 also. I disagree with this submission. The eye witness account of PW13 and PW20 and the fact that Investigating Officer found Ms Sangeeta at the house of deceased on 19.9.2012 is enough to prove that she was residing at the house of deceased on 18.9.2012 and 19.9.2012.
Ld. Defence Counsel further submits that the Ex. DW1/P proved that FSL laboratories did not comply with the working procedure manual during all the lab test, therefore the same is given to another person Mr. Gaurav Arora and the same copy of postmortem reports and other relevant documents gives to the Vipin Kumar S/o Shobhran in the same jail no.3, Tihar also proves by Ex.DW1/A6 i.e. appeal u/s 19 of RTI Act 2005 proves the RTI record dated 27.6.2016 is annexed as Annexure9 (1 pg).
Ld. Defence Counsel further submits that the Ex.DW1/R and Ex.DW1/S prove that time of firing bullet from gun is not given because police did not obtain the same.
SC No.12/2013, FIR No.147/2012 Page 90 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Ld. Defence Counsel further submits that the Ex.DW1/S proves that IO hide the reports numbers FSL no.2012/B71 64/318 ballistics, which is not being matched with Ex.PW31/A and the same report no. FSL 2012/B 7104, DNA No. 1959/2014, which is not being matched with other pages no.2 and no.3 the Ex.PW29/Q, IO changed the same pages/reports after thought/long interval deposed.
Ld. Defence Counsel further submits that the Ex.DW1/U proves that the mandatory requirements was not fulfill regarding DNA and ballistics reports there is alteration in FSL form also and Ex.PW29/R is already differ with FSL form and (PW10) denied regarding case property without any seal and FSL form contain sample of blood deposited to the Rohini FSL then how is the reports possible of DNA along with Allelic Data without Finger print/Foot print (chance Print). IO falsely said in his hief examination/cross examination stated that ; "he sent all requirements on 26.09.2012 but forwarding letter (FSL Form) in he also mentioned RTI says will sent on 28.09.2012" and there is nothing on record how many time which was sent to the FSL/DNA of shot gun matching along with all the other exhibits for examination reports was not made by IO proved by Ex.DW1/W (colly) i.e. FSL Form / forwarding letter along with Road Certificates, it means not matching request of gun, projectile, SC No.12/2013, FIR No.147/2012 Page 91 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 cartridges, seized clothes/uniform etc. for presence of gun powder/explosive and the same not sent request for DNA with blood stains led by the IO belonging to the accused gun, whether since time of fire and other examination, continuous concealed RC(s) himself in the police station, no any documents placed on record regarding reason of cancellation/refusal of the case property along with Road Certificates by FSL in the present case.
Ld. Defence Counsel further submits that Ex.DW1/W (colly) proves that road certificates obtained through RTI record and placed on record by the police Ex.PW9/B is also different along with Ex.DW1/A 25 proved by DW6.
Ld. Defence Counsel further submits that the Ex.DW1/33 to Ex.DW1/39 prove that no links of Sangeeta Kaur with deceased Dr. Sanjiv Dhawan and his family members or she is not maid/servant working of the same person residence at New Rajinder Nagar, New Delhi.
Ld. Defence Counsel has drawn my attention to the statement of Ms Sangeeta Kaur Ex.DW1/40 and Ex.PW28/B are different and u/s 340 r/w 195 CrPC application are also filed by accused the same placed on judicial record and still kept pending in absence of Sangeeta Kaur (nonexamine) therefore IO did not bring SC No.12/2013, FIR No.147/2012 Page 92 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Sangeeta as a maid/servant proves that IO pressurized her to give false statement it proves that accused and Sangeeta Kaur both are living together in the rent room of Ms Sakuntla Yadav, Gurgaon, Haryana.
Ld. Defence Counsel further submits that the Ex.DW1/41 and Ex.DW1/42 proved that no PCR call was made by PW13 complainant Sarthak Dhawan (son of deceased) and PW8 Naresh Goyal (neighbour of PW13 residing in the same building) the same false statement recorded before the court of law because cordial relation with deceased.
Ld. Defence Counsel further submits that the Ex.DW1/43 to 45 killing threat was not given by Dharamendra Kumar Tandan. Sh. G0pal Gosai (PW20) was not a servant and is a fake witness, no got verification done, no documents put on record by the IO.
Ld. Defence Counsel further submits that the Ex.DW1/46 to 53 prove that IO not following that mandatory provision and the same violated guide lines of the Hon'ble Supreme Court of India, no inquiry and investigation as per rule/law in the present case.
Ld. Defence Counsel further submits that the Ex.DW1/54 also proves that right of the accused was violated by the police/investigation agency regarding guideline for police officer in SC No.12/2013, FIR No.147/2012 Page 93 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Indian on making arrests.
Ld. Defence Counsel has drawn my attention that the RTI record Ex.DW1/A11 and Ex.DW1/A12 are proved by DW2 pertaining to maid/servant verification is mandatory provision and without attested other documents along with charge sheet submitted by the IO of the case FIR No. 147/12.
Ld. Defence Counsel has further drawn my attention that the RTI record Ex.DW1/D to Ex.DW1/F are proved by DW3 Ct. Rajender Singh from Gurgaon police regarding living together accused with Sangeeta Kaur in village Wazirabad during incident and falsely lifted/arrested by Delhi Police from the rented room and from the same, thereafter, all the house hold article valuable and important documents collected the same and there handover by PS Rajinder Nagar Police / IO of this case of Ms Sangeeta Kaur and also shifted from rent room of Sh. Rambir, Wazirabad, Gurgaon, Haryana proves her statement i.e. Ex.DW1/40.
Ld. Defence Counsel further submits that the DW4 Smt. Kamla Devi W/o Sh. Das Bhagat proved that she used to talk to Sangeeta on telephone about the medicine of high blood pressure and sugar and she also proved that Sangeeta used to tell her the names of medicines after consulting some doctor.
SC No.12/2013, FIR No.147/2012 Page 94 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Ld. Defence Counsel further submits that the DW5 proved Ex.DW1/A30, which proves that the FIR copy was not sent for the initial signatures of Sr. Police Officers, no DD entries regarding Roznamcha / DD entries/register A & B from 19.9.2012 to 14.9.2012 in relation to FIR no. 147/2012 was not placed on record.
Ld. Defence Counsel has drawn my attention that the DW6 proves the road certificates obtained from Rohini, FSL, PS New Rajinder Nagar as certified copies and the RC attached by the IO in charge sheet submitted are different from Ex.DW1/A25 each other and IO has concealed from the court contents are different the same also alteration manipulation and which is not possible against accused.
Ld. Defence Counsel further submits that the DW6, Ex.DW1/A28 prove that accused was not involved in any killing threat to the Dr. Sanjiv Dhawan (since deceased) his residence S.G.R. Hospital his son/wife and any family member not informed to police/PCR 100number call regarding incident and the about admission in the same hospital about threats etc. and also proved RTI record i.e. Ex.DW1/A28 by DW6 or DD No.7B 4:12am 19.9.2012 MLC No.051/2012 H. No.308 obtained the same are different from Ex.PW1/A i.e. MLC No. 052/12 3:32 am H. No.4950 on the same day SC No.12/2013, FIR No.147/2012 Page 95 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 which is not possi9ble. There is a contradiction in medico legal case reports according to the said DD entries i.e. RTI record and the one placed in the charge sheet. That PW13 Sarthak is not eye witness and not removing S.G.R. Hospital of his father and the same nothing there what happened in the place of occurrence also corroborated the said both MLC in this case.
Ld. Defence Counsel further submits that the DW7 proves that Ex.DW1/A27 was obtained and there after transferred and replied accordingly and also corroborated with Ex.DW1/28 and proves through DW6.
Ld. Defence Counsel further submits that the DW8 proves that Ex.DW1/A32 the signature of the accused was taken blank papers without any relevancy, IO says that he does not know whether chance prints was lifted or not the same crime team IC could not be lifted any chance print from spot and written sample was taken by IO Insp. Manish Joshi (PW33) in police station.
Ld. Defence Counsel further submits that the DW9 proves the reply Ex.DW1/A15 and that no FSL result/report can be withhold by the IO also proved Ex.DW1/L and should be submitted to the court immediately and case property should be deposited in Malkhana and no delay information was open without information court and SC No.12/2013, FIR No.147/2012 Page 96 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 envelope was not placed on record and all reports/results are also fictitious.
I have carefully considered the defence evidence and none of the evidence led in defence is of any help to the accused. The accused is indulging in hair splitting and nothing more. None of the information received under RTI Act dislodges the prosecution case, which is heavily based upon the testimonies of the eye witnesses. However, the issues regarding the road certificate is being discussed in the following heading.
Road Certificates Ld. Defence Counsel has pointed out to discrepancy in road certificate in respect of the number of empty and misfired cartridges. In order to clear the issue of discrepancy in respect of the number of cartridges sent and the particulars of the seal, I called for the original book containing carbon copies of road certificates. My observations in the order sheet dated 25.7.2017 and 26.7.2017 are as under :
"25.7.2017 Present: Sh. Ghanshyam Srivastava, Ld. Addl. P. P. for State.
Inspector Sh. Manish Joshi, IO is present.
Accused from JC with Ms Chitra Mal, adv. (Ld. LAC).SC No.12/2013, FIR No.147/2012 Page 97 of 108
State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 During the course of final arguments, Ld. Defence Counsel has pointed out that in road certificate Ex.PW9/B at serial no.9 "one sealed pulanda sealed with the seal of MJ containing empty and misfired cartridges (5)" is written, whereas accused took a copy of road certificate in RTI (Ex.DW1/W) in which, at point 9 [one sealed pulanda with the seal of MJ containing (4) empty and (1) misfired cartridges (5)] is mentioned. Therefore, it is submitted that the numerals 4 and 1 have been inserted and road certificate has been subsequently manipulated. Further my attention is drawn to item no.15 in Ex.DW1/W in which "sealed with the seal of NS", which is missing in Ex.PW9/B. Ld. Additional Public Prosecutor submits that this manipulation is done by accused himself, who has filed the said document in the court.
In order to clarify this aspect it is needed that original book containing carbon copies of road certificates be produced before this court tomorrow.
To come up for remaining final arguments on 26.7.2017."
"26.7.2017 Present: Sh. Ghanshyam Srivastava, Ld. Addl. P. P. for State.
Accused from JC with Ms Chitra Mal, adv. (Ld. LAC).
Ct. Hotam Singh has produced the original register no.21 (i.e. the register of road certificates). It shows that case property was sent thrice vide road certificates no. 33, 34 and 35 to FSL and every time due to some objections, the case property was not accepted by FSL. Fourth time, when the case property was sent vide road certificate no.36 to FSL, the same was accepted by the FSL.
I have compared the item mentioned at serial no.9 and I find that the road certificate Ex.PW9/B proved in the court is a true copy of the same and the figures 4 and 1 are not seen in the same in contrast to the copy of the document (copy of RC) sent to accused through reply of FSL Ex.DW1/W. I have also compared serial no.15 of the road certificate no. 36 and have compared it with the copy proved as Ex.PW9/B as well as with the copy of the document sent to accused through reply of FSL Ex.DW1/W. Perusal of original register no.21 shows that Ex.PW9/B is the true copy of item no.15 and the words "sealed with the seal of NS" is not written in the same. Copies of all the relevant SC No.12/2013, FIR No.147/2012 Page 98 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 portions of the register have been taken on record. Copy of the same is supplied to Ld. Defence Counsel.
Ct. Hotam Singh has explained that original road certificate is retained in the register and two carbon copies are given to the concerned official for delivery in FSL. One carbon copy of road certificate is left in FSL, where as on the other carbon copy, the receiving of FSL is taken and then same is brought back to police station and attached in the present register. It is further submitted that presently the receiving is given by FSL in a proforma under the head "acknowledgement of case acceptance" and this proforma after being signed by FSL is attached with the carbon copy of road certificate, which is returned to police station.
The register is perused and returned to Ct. Hotam Singh.
Final arguments have been concluded. Ld. Defence Counsel has also filed written submissions.
Arguments on application under Section 340 CrPC are also heard. Ld. Counsel for applicant withdraws the present application because this application was filed to take legal action against Smt. Sangeeta Kaur. However, since Smt. Sangeeta Kaur has not been examined by prosecution, the application does not remain maintainable and accordingly accused submits that he is withdrawing the present application. Accordingly, the application under Section 340 CrPC is hereby dismissed as withdrawn.
To come up for judgement on 5.8.2017."
The above order sheets make it clear that cartridges and misfired cartridge (total five) were sent to FSL, Rohini as per the road certificate Ex.PW9/B. Similarly, at item no.15, the words sealed with the seal of NS are not written. After seeing the original road certificate book containing the carbon copies of the road certificate in SC No.12/2013, FIR No.147/2012 Page 99 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 question, I am of the opinion that the road certificate Ex.PW9/B is the authentic road certificate duly proved by prosecution.
Parcels Ld. Defence Counsel has pointed out that as per the testimony of PW9 HC Darshan Lal, on 19.9.2012 Inspector Manish Joshi deposited in Malkhana 12 sealed pulandas bearing the seal of MJ. The same witness testified that on 29.9.2012 he handed over to Ct. Prasanna 17 sealed parcels for depositing the same in FSL. Ld. Defence Counsel argues that when only 12 sealed parcels were deposited, how PW9 handed over 17 pulandas to Ct. Prasanna. Ld. Additional Public Prosecutor submits that this is a minor mistake in recording of evidence. Ld. Defence Counsel submits that had it not been simply a slip of tongue by PW9, Ld. Defence Counsel would have immediately pointed out this fact to the witness.
I have perused the malkhana register Ex.PW9/A. Various items were deposited pertaining to this case under 12 heads. The 13 th head is pertaining to personal search memo. Each of 12 heads contains various seized articles, which are more than 19. Only 17 items were sent to FSL vide road certificate Ex.PW9/B. It appears that PW9 referred to 12 heads by mistake. Therefore, it cannot be SC No.12/2013, FIR No.147/2012 Page 100 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 said that less items were deposited and more items were sent to FSL. Ld. Defence Counsel did not point out even a single item out of these 17 (sent to FSL), which are not mentioned in malkhana register Ex.PW9/A. Evidence of eye witnesses I have already narrated the testimonies of PW13 Sarthak Dhawan, the son of the deceased and PW20 Gopal Gosain, the cook of the deceased. Both of the witnesses had seen accused firing at Dr. Sanjiv Dhawan. At that time, all of them were present in the house no.49/50, Double Storey, New Rajinder Nagar, New Delhi. Although, PW13 and PW20, who had witnessed the incident, had not seen the accused earlier but the deceased had told PW13 on the day of incident itself about the threats being extended by accused. When accused fired at Dr. Sanjiv Dhawan, the shot hit him in his chest. Dr. Sanjiv Dhawan collapsed in the balcony telling PW13 that the person, who had shot him, was Dharamendra Kumar Tandan. PW20 Gopal Gosain heard the noise of breaking of window pane caused by the gun shot. He called Ms Sangeeta and he saw accused in a military uniform in front of the house of Dr. Sanjiv Dhawan. Ms Sangeeta told the name of the accused as Dharmender. PW13 and PW14 identified the SC No.12/2013, FIR No.147/2012 Page 101 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 accused in the court as the same person, who had shot at Dr. Sanjiv Dhawan. The testimony of the neighbours namely Naresh Goel (PW18) residing in House No.51, Second Floor, Double Storey, New Rajinder Nagar, Delhi testified that he heard loud hue and cry and when he reached the staircase on the first floor, he found accused in a military dress grappling with Tarun Kalra. Then PW18 returned to his second floor portion and Tarun Kalra also reached there. PW18 pulled Tarun Kalra inside. PW18 saw that accused had gone in the street. PW18 inquired from accused as to what he wanted. Accused told him that Dr. Sanjiv Dhawan had detained his wife Ms Sangeeta. At that time PW18 saw accused firing in air from his gun. Thereafter, he heard knocking at the door of his house and saw that Sarthak was knocking the door. But he did not open the door fearing that accused might not enter his house. PW26 Tarun Kalra testified that on 19.9.2012 at about 2/3:00 am, he heard a loud noise. He rushed to terrace and saw the accused in army clothes, who suddenly entered his drawing room with a gun in his hand and he was profusely bleeding from his thumb. At the instance of accused, PW26 opened the door of his house. Accused told him to take him to correct floor. In the meantime, his neighbour Mr. Goyal came down to help. However, hearing his foot steps, accused pointed the gun at him and SC No.12/2013, FIR No.147/2012 Page 102 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 they had a scuffle due to which they lost balance and came tumbling down the stairs. PW26 ran on the road. Accused followed him and hit him with axe slitting Tshirt and shorts of PW26, who tried to run towards his house shouting for help. At that time, he heard a shot gun from behind and after a while a few more gun shots and screaming and shouting from Dr. Dhawan's house. Suddenly, son of Dr. Dhawan started knocking the house of Mr. Goyal but they did not open the door fearing that he might be accompanied by accused. He saw from the balcony of Mr. Goyal's house that Dr. Dhawan was being removed to hospital.
The testimonies of all these witnesses are natural and have a ring of truth in them. The evidence of eye witnesses namely PW13 and PW20 cannot be disbelieved because being a son of Dr. Sanjiv Dhawan and being a servant, PW13 and PW20 are supposed to be present in the house of Dr. Sanjiv Dhawan at the time of incident. Their testimonies are fully corroborated by PW18 and PW20.
The Investigating Officer (PW33) collected the exhibits from the spot including four case cartridges and one missed fire cartridge from the park opposite House No. 49/50, which is the house of the deceased. The same were seized vide seizure memo Ex.PW29/B. The Investigating Officer (PW33) apprehended the SC No.12/2013, FIR No.147/2012 Page 103 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 accused with the help of Sangeeta Gaur within a few hours from the incident. Accused was having a bag in which double barrel 12 bore shot gun, cartridge case and fire arm license were recovered. This DBBL gun was seized vide seizure memo Ex.PW29/E. This gun recovered from the accused and the cartridge cases recovered from the park in front of the house of the deceased were sent to FSL. As per FSL report Ex.PW31/A, the said cartridge cases marked EC1 to EC4 were compared with test cartridge cases fired through the aforesaid gun mark Ex.F1 under a comparison microscope. After thorough examination and comparison, it was opined that fire pin marks present on Ex.EC1 to EC4 were similar with fire pin marks present on the test cartridge cases. Therefore, it is proved that the empty cartridge cases recovered from the park in front of the house of the deceased were fired through the gun recovered from the possession of the accused.
Thus, it stands proved beyond reasonable doubt that it was accused, who had fired at Dr. Sanjiv Dhawan and had killed him. I therefore convict the accused under Section 302 IPC for committing murder of Dr. Sanjiv Dhawan.
It also stands proved that accused hit Tarun Kalra with an axe and thereby attempted to commit murder. Hence, I convict the SC No.12/2013, FIR No.147/2012 Page 104 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 accused under Section 307 IPC for making an attempt to kill Tarun Kalra.
It also stands proved that accused trespassed the house of Tarun Kalra with preparation for causing hurt and thereby I convict the accused under Section 452 IPC.
Announced in the open court on 4.9.2017.
(Vinod Kumar) Additional Sessions Judge (Central) Tis Hazari Courts Delhi SC No.12/2013, FIR No.147/2012 Page 105 of 108 State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 IN THE COURT OF ADDITIONAL SESSIONS JUDGE (CENTRAL ) TIS HAZARI COURTS, DELHI SC No. 12/2013 FIR No. 147/2012 PS Rajinder Nagar State Vs. Dharamendra Kumar Tandan S/o Sh. Dass Bhagat Tandan R/o Village - Lakhapuri, P.S. Lorami, Teh. Lorami, Distt. Mungeli, Chattisgarh.
Order on Sentence 4.9.2017 Presence. Sh. Ghanshyam Srivastava, Ld. Addl. P. P. for State.
Convict with Ms Chitra Mal, Ld. Legal Aid Counsel.
Ld. Additional Public Prosecutor argues that the convict created a terror on the night of 18/19.9.2012 in the locality of New Rajinder Nagar. He was fully armed, committed criminal trespass, killed a doctor and hit Tarun Kalra with an axe. It is submitted that gravity of offence is further increased due to the fact that convict has previous criminal record. Ld. Additional Public Prosecutor has drawn my attention to an FIR No. 369/2009, PS Lorami, Chattisgarh, FIR No. 370/2009, PS Lorami and FIR No. 47/2011, PS Kunda, Chattisgarh. It is submitted that in these FIRs, allegations against the convict are of threatening and attempting to kill with fire arm.
SC No.12/2013, FIR No.147/2012 Page 106 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Ld. Defence Counsel has referred to the FIR Ex.PW2/A, under Section 324/452 IPC, where the allegations against the convict are that Ms Sangeeta used to reside in the house of one Tejpal and convict entered the said house with a view to take away Ms Sangeeta and he hit Tejpal with a sharp edged weapon.
Ld. Additional Public Prosecutor argues that the convict has a criminal mind and he is a danger to the society at large. Hence, it is argued that the aggravating circumstances are quite high and therefore, the convict should be awarded death penalty.
On the other hand, Ms Chitra Mal, Ld. LAC has submitted that the aggravating circumstances are not so high that the convict should be awarded capital punishment.
I have considered the rival submissions. I agree with the submissions of Ld. Additional Public Prosecutor that the convict had been showing the criminal bent of mind and criminal tendencies even prior to the offence in question. However, at the same time, the facts of the present case are not such that the life imprisonment would be wholly inadequate.
In these circumstances, I am not inclined to consider the option of awarding capital punishment.
SC No.12/2013, FIR No.147/2012 Page 107 of 108State Vs. Dharamendra Kumar Tandan Judgement dt. 4.9.2017 Accordingly, I sentence the convict as under :
Sl. Section Sentence Fine Sentence in default No. of payment of fine
1. 302 IPC for Imprisonment Rs.100/ Seven days committing for life murder of Dr. Sanjiv Dhawan
2. 307 IPC for Seven years Rs.100/ Seven days attempting to commit murder of Tarun Kalra
3. 452 IPC for Seven years Rs.100/ Seven days committing house trespass in the house of Tarun Kalra All the sentences shall run concurrently.
Copy of judgement be supplied free of cost to the convict. Sentence warrants be prepared and convict be sent to jail to serve the sentence. File be consigned to record room.
Announced in the open court on 4.9.2017.
(Vinod Kumar) Additional Sessions Judge (Central) Tis Hazari Courts Delhi SC No.12/2013, FIR No.147/2012 Page 108 of 108