Delhi District Court
State vs . Upender & Ors. Sc 75 Of 2012 1/112 on 23 August, 2012
ID No. 02403R0000861996
IN THE COURT OF SH. VINAY KUMAR KHANNA
ADDITIONAL SESSIONS JUDGE04
SOUTH EAST: SAKET COURTS: DELHI
Sessions Case No. 75/2012
Unique ID No. 02403R0000861996
FIR No.433/91
U/s 143/471/148/149/302/324 IPC
PS : R. K. Puram
State
Versus
Upender
S/o Sh. Raghubir Singh,
R/o Village Kondli, PS Kalyan Puri,
New Delhi. ..........Accused No.1
Suredender Singh
s/o Sh. Avtar Singh
r/o G270, Sriniwas Puri New Delhi ..........Accused No.2
Devinder @ Garner
s/o Shish Ram Sharma
r/o H. No. 73, Kilokari village,
New Delhi ..........Accused No.3
Dinesh,
s/o Mahesh Chand
r/o 185B, Jiwan Nagar, New Delhi ..........Accused No.4
Hari Om Yadav
s/o Kajam Singh
r/o G266, Sriniwas Puri, New Delhi ..........Accused No.5
State Vs. Upender & Ors. SC 75 of 2012 1/112
ID No. 02403R0000861996
Gyaneshwar Prasad Sinha
s/o Sh. Deveshwar Prasad
r/o D855, New Friends Colony,
New Delhi ..........Accused No.6
Akram Jamil
s/o Abdul Jamil
r/o H. No. 35, Abul Fazal Nagar, Okhla,
New Delhi ..........Accused No.7
Inderjeet s/o Rajender Singh
r/o H. No.157, Jeevan Nagar
Near Hari Nagar Ashram, New Delhi ..........Accused No.8
Instituted on : 27th January, 1992
Argued on : 13th August, 2012
Decided on : 23rd August, 2012
J U D G M E N T
Case of prosecution
1. On 3rd September, 1991, an incident took place in ARSD college, Dhaula Kuan, New Delhi wherein injured Rambir sustained stab and bullet wounds and expired after 43 days of the incident on 16th October, 1991. Eight accused persons were sent up for trial, which continued for more than two decades.
2. Prosecution version in a nutshell is that on 03.09.1991, SI Ompal Singh, who was on patrolling duty reached south campus at 02.10 pm for DUSU election arrangements where, Constable Yad Ram produced DD No. 15 at Arts Faculty to the effect that "Quarrel is taking place in front of ARSD college. Firing has taken place." SI Om Pal Singh & Ct. Yatinder reached at the spot i.e. inside the college. HC Surinder Singh and Ct. Devinder Kumar produced Upender Kumar s/o Raghubir Singh r/o Vill. Kondli, Kalyan Puri, whose clothes were blood stained, along with 4 State Vs. Upender & Ors. SC 75 of 2012 2/112 ID No. 02403R0000861996 live cartridges. They met complainant, Pradeep Kumar (PW2) at the spot, whose statement was recorded. Statement of complainant is as under:
"Today after enquiring about my results of B.A. first year from Aurbindo College, I was going to my residence via Dhaula Kuan by bus. After getting down from the bus at about 2 pm, I came to ARSD College for drinking water. After drinking water, I saw upwards at the first floor, where I found Rambir Singh s/o Hari Singh of my village. On seeing him, I went to him where he was talking to another boy. On reaching there, other boy left and I and Rambir started talking. In the meantime, 7/8 boys came there and surrounded both of us from all sides. One of them was Garner who immediately took out a knife from the right pocket of his pant and Dinesh caught hold of Rambir from behind. Garner attacked Rambir with knife in his stomach and thigh by saying that knife blow is hit in this way. Upender took out a country made pistol from the dub of the pant and targeted Rambir and fired at him. Thereafter all of them started running and while running the country made pistol of Upender fell down at the spot. Khazan Singh who was coming upstairs tried to catch hold of Garner, who was going downstairs. Garner inflicted knife blow on the hand and back of Khazan. I kept on chasing Garner and his associates. Two policemen were at the gate. They caught hold of Upender while he was jumping across the fence. While Upender was running someone from amongst the students threw a stone that hit him on his head. Rajesh and other boy took Rambir to hospital from the spot, after hiring a vehicle for RML Hospital. Garner, Dinesh, Upender and their associates attacked Rambir by knife and country made pistol with intention to kill him. Action as per law be taken against them. My statement is read over to me which is correct. I know Garner, Dinesh and Upendra very well, and I can identify the remaining boys when brought before me. I have now come to know the names of the remaining boys as State Vs. Upender & Ors. SC 75 of 2012 3/112 ID No. 02403R0000861996 Devendra r/o Kilokri, Hariom, Indrajit, Gosain, Surendra Singh."
3. Based on the above statement, Sub Inspector Om Pal Singh prepared a rukka and sent Constable Hari Om for registration of the FIR, under section 307/147/148/149 IPC, 25/27/54/59 A Act and 5 TADA Act. It is further case of prosecution that a country made pistol produced by M. C. Jain, Administration Officer, ARSD college and four live cartridges recovered from Upender Kumar, were seized. Accused Upender was arrested, after chasing by the students. He was hit by a stone. One Khan Ahmad Adil lodged a report that three boys, while running had taken away his motorcycle. No. DL1S A3909 .During investigation, he was not able to identify the person, who took away his motor cycle. Accused Gyaneshwar Sinha, Akram Zamil in a Jeep No. DDI 4310 and accused Surender Gosain, who was running away by taking lift on a motorcycle no. DNI 2196 were arrested. On 05.09.1991, Jeep No. DHC 9944 was seized from village Kilokri.
4. Further story of prosecution is that, on 20.09.1991, Doctor of Safdarjung hospital declared injured Rambir 'fit for statement' and Rambir in his statement recorded by the IO on 20.09.1991, stated that Surender and Inderjeet had caught hold his hands and Hari Om had uttered that 'Upender, sale ko goli maar de' and motive was clarified by Rambir that 'at 12 P.M, when he was in the college, all the boys who were outsider had come to assist one Prashant Nagar in filing his nomination form for DUSU election. Rambir told Prahant Nagar to take outsiders, out of the college, on which, they went away after threatening him. Further, case of the prosecution is that Rambir was admitted to RML Hospital, where he had undergone Thoractomy and Laprotomy on 3.9.1991. He was discharged on 17.9.1991 for further management. He was admitted to SJ Hospital on 17.9.1991 from where he State Vs. Upender & Ors. SC 75 of 2012 4/112 ID No. 02403R0000861996 was discharged on 14.10.1991. It is alleged that on the same day, he was again admitted in Albega Hospital, a private nursing home at Gurgaon, where he expired on 16.10.1991. His body was cremated by the family members on 16.10.1991 itself without informing the police and without undertaking any postmortem process. On 17.10.1991, accused Devender @ Garner, Dinesh and Hariom, surrendered in the Police Station. They were arrested. Section 302 IPC was added. On 18.10.1991, from the cremation site, one bullet type article was taken out from the ashes of the deceased. It was seized and was sent to CFSL for examination on 24.10.1991. one Motorcycle of Khan Ahmad Adil, which could not be linked with any accused, was found abandoned at Safdarjung hospital on 17.11.1991. On conclusion of investigation, charge sheet was filed in the Court of Metropolitan Magistrate on 30.11.1991. After supplying copies, case was committed to the Court of Sessions on 07.09.1992. Charges u/s 143, 147, 148, 302 r/w 149, 324 IPC were framed against all the accused persons and also charge u/s 25 & 27 Arms Act and u/s 2 & 5 T.A.D.A (P) Act was framed against accused Upender. Accused persons pleaded not guilty and claimed trial.
5. In order to establish the accusations against the accused persons, prosecution examined forty seven witnesses in all. Gist of testimony of prosecution witnesses is as under:
Medical Evidence
6. Doctor O. P. Pathania (PW18) from RML Hospital. He deposed that patient Rambir was admitted in the hospital vide MLC no. 92486 with the alleged history of assault with sharp weapon and fire shot. Patient was admitted in their surgical unit and operated on the same day. As per hospital record, patient sustained State Vs. Upender & Ors. SC 75 of 2012 5/112 ID No. 02403R0000861996 following injuries: 'Small bowel perforation in jejunum; Perforation in transverse colon; Blood present in the peritoneal cavity; Liver, spleen, kidney, stomach normal; Heamatoma left thigh; Gun shot wound on the posterial aspect of chest left side. Surgery done laparotomy plus left postrolateral thoracotmy with chest tube brannage of left side.' PW18 deposed that this report was prepared by Doctor Kapil Sethi. Patient remained admitted upto 17.09.1991 in their hospital and was transferred to Safdarjung hospital for further management. Discharge summary was prepared by Doctor Sanjay Singh which is Ex.PW18/A. PW18 identified signatures of Doctor Sanjay Singh, as he was working with him in his unit. PW18 placed on record copy of operation notes which is Ex.PW18/B. PW18 deposed that MLC NO. 92486/91 (Ex.PW18/C) was prepared by Doctor Sanjay Singh, who opined that patient was 'unfit for statement'.
7. Doctor Mukesh Kumar Sharma (PW23) CMO, RML hospital deposed that on 03.09.1991, one injured Rambir Singh s/o Hari Singh aged 21 years old was brought by Rajesh s/o Raghubir r/o village Chawla, Delhi with the alleged history of assault with sharp weapon and firearm. On examination, the patient was conscious and oriented. Pulse was 120 per minutes. Pupils were normal size normally reacted, systemic examination nad. The following injuries were observed by PW23:
'Incised wound epigestrium left side of midline below left rib cage. 2.5 cm X 1cm depth not explored; Incised wound right thigh upper part, medial aspect 1.5 cm X 0.5 cm again depth not explored; Incised wound left thigh upper part medial aspect 1cm X 0.5 cm depth not explored; Multiple abrasion left face above ear; Gun shot wound on the posterial aspect of chest, left side 8/10 cm below scapula tip. 2.5 cm x 1.5 cm oval blood oozing out, no exit wound seen' The patient was immediately State Vs. Upender & Ors. SC 75 of 2012 6/112 ID No. 02403R0000861996 referred for surgical emergency no. 12 for detailed examination and management.
One pant and one Tshirt with blood stained cut marks were sealed. PW23 prepared MLC (Ex. PW18/C). He deposed that on the same day, he medically examined one Khazan Singh s/o Om Prakash, 22 years, male. He came himself in casualty with alleged history of assault. On examination, patient was found conscious and oriented. Injuries noted in his MLC are 'incised wound left upper arm dosal aspect 4 cm X 0.5 cm superficial; incised wound left side later aspect of chest below tip of left scapula 1 cm X 0.5 cm depth not explored' He prepared MLC (Ex.PW23/A). PW23 opined that the nature of injury was sharp in Ex.PW23/A and the nature of injury was sharp and firm arm injury in Ex.PW18/C. In cross examination, PW23 admitted that Rambir Singh (deceased) was talking to him and was in a position to make oral statement. The patient was in a position to make coherent statement. PW23 admitted that there was an endorsement on the MLC, which show that the patient was unfit for making statement. He did not know whether patient remained unfit for statement till the date of his discharge viz 14.10.1991. PW23 stated that Rambir Singh (deceased) came at 02:25 pm and Khazan Singh came at 03:30 pm. Khazan Singh did not tell him as to where he had received the injury and by whom he was assaulted. PW23 stated that neither both the injured gave him the names of any of the assailants nor accompanying persons any such name.
8. Doctor V. K. Sharma (PW22) Professor of Orthopedics, Safdarjung hospital deposed that on 30.09.91 patient namely Rambir vide FC No. 16652/91 was referred from RML hospital with bullet injury in the spinal cord with complete paraplegia. PW22 advised admission in the spinal ward. At the time of admission, injury was 25 days old. Thoractomy and Laprotomy was done at RML Hospital. State Vs. Upender & Ors. SC 75 of 2012 7/112
ID No. 02403R0000861996 Patient was having infected entry wound on left side of chest. Some doctor had shown him the patient, vide FC No. 16652/91 which is (Ex.PW22/A). Case history is (Ex.PW22/B). In cross examination, PW22 admitted that none of the document was in his hand writing nor any document was endorsed by him. Documents were seen by him for the first time as it was prepared afterwards. PW22 admitted that case sheet Ex.PW22/A had not been written by him or by any other doctor that the patient had been shown to him.
9. Doctor A. K. Singh (PW17) Consultant, Central Institute of Orthopedics deposed that as per the record available, the patient Rambir Singh, 21 years old, male was admitted to 17.09.1991 after being referred from Doctor of Ram Manohar Lohia Hospital where he was admitted on 03.09.1991 at RML Hospital with stab injury abdomen and gun shot injury on chest and cervical spine. The patient had undergone thoractomy and laparotomi on 03.09.1991. The patient was admitted in Safdarjung Hospital, Spinal Ward on 17.09.1991 at 1305 hours. As per the record available, patient was admitted in orthopedics unit 1 under Doctor V. P. Bansal vide FC no. 16652/91 with gun shot injury at thoracic spine D1 and D2 level with complete paraplegia. Patient was discharged as per the record from Safdarjung hospital on 14.10.1991. The patient was admitted in ortho unit 1 in Safdajung hospital, Department of Orthopedics, where Doctor V. K. Sharma, Professor of orthopedics made endorsement for the treatment of patient during operation. This witness could not identify the writing and signatures of Doctor Bansal on any document. In cross examination, PW17 admitted that he had not dealt with patient Rambir at any stage and he had not prepared any case sheet or document pertaining to his treatment.
State Vs. Upender & Ors. SC 75 of 2012 8/112
ID No. 02403R0000861996
10. Doctor A. K. Venkatachalam (PW41) deposed that on 29.09.1991, he was posted as Junior Resident in Safdarjung Hospital. Police approached him for declaring Rambir Singh, patient who was admitted as being fit for statement. He declared him fit for statement. His endorsement at point C on (Ex.PW18/C). On 25.09.91, he was asked by his senior resident in Orthopedics to send a reference to senior resident in surgery to attend the patient Rambir Singh as his catheter was struck and needed to be removed. His endorsement is (Ex.PW41/A). In cross examination, he stated that patient Rambir was earlier unfit for making statement because of the pain caused by bullet injury. According to the last endorsement on MLC dated 12.09.1991, he was unfit for statement. He did not know what was the position of patient Rambir in between 12.09.1991 to 20.09.1991. He admitted that he had not given the time as to when the patient was declared fit for making the statement. PW41 admitted that according to the record of hospital, patient Rambir was discharged from the hospital on date, unknown. He could not tell as to what type of injuries were suffered by injured. He could not tell whether at the time of making his endorsement regarding fitness of the patient as to whether he had examined the nature of injury or not. He did not remember whether any written request was made before him or not for seeking declaration qua patient's fitness. He could not tell as to who was the incharge of Spinal Ward of Safdarjung Hospital on 20.09.1991 and his endorsement at point X on Ex.PW18/C was based upon the instructions of his senior doctors as he was working as Junior doctor.
11. Doctor Seema (PW42) CMO, RML Hospital deposed on behalf of Doctor Sanjay Singh who left the services of the hospital. She had seen the MLC (Ex.PW18/C) on which Doctor Sanjay Singh opined with respect to patient Rambir State Vs. Upender & Ors. SC 75 of 2012 9/112 ID No. 02403R0000861996 Singh that "he was unfit for statement on 09.09.1991". She identified the hand writing and signatures of Doctor Sanjay Singh on the basis of record, who signed at point X. In cross examination, she admitted that permanent address of the Doctor Sanjay Singh would be available at the Administrative Section of the hospital. She had not seen Doctor Sanjay Singh writing and signing. She admitted that she had deposed on the basis of the endorsement on the MLC and she had no personal knowledge of the case. She admitted that she had never been associated with Doctor Sanjay Singh during the examination of patient Rambir.
12. Doctor K. K. Saraswat (PW6) Albega hospital, Udyog Vihar. He examined injured Rambir, aged about 25 years male, who was referred and examined by doctor Deepak Vashishth. He deposed that the patient was admitted in their hospital on 14.10.1991 with history of case of Traumatic Paraplegia. Doctor Vashishth examined the patient and prepared the admission sheet. PW6 identified the writing and signatures of Doctor Vashishth. PW6 deposed that D2 level was 35 days ago along with multiple stab injuries. Bullet injury back on. The patient was transferred to Safdarjung hospital in Paraplegia ward. Patient was suffering from severe broncho pneumonia. As per the record, on examination doctor found, paraplegia level D2, posterior columns seemed to be intact. Chest full of crepts. Xray showed bronchopneumonia. On 16.10.1991, PW6 examined patient and found that patient was in respiratory distress. PW6 deposed that he examined patient at 07:40 am and 08:25 am and the patient expired due to Cardiorespiratory arrest. Death certificate was issued. Admission card (Ex.PW6/A) and death information certificate (Ex.PW6/B) were placed on record. In cross examination, he admitted that there could be a case of bronchopneumonia without any injury to his person. State Vs. Upender & Ors. SC 75 of 2012 10/112
ID No. 02403R0000861996 Public witnesses
13. Pradeep Kumar (PW2) complainant. He deposed that he knew deceased Rambir as he was from his village. On 03.09.1991, he was coming from Aurobindo college after going through his result and was going to Dhaula Kuan as the bus was to terminate there. After sometime, he entered in ARSD college to drink water and to meet another boy, student of the said college and also to inquire as to whether he would accompany him to the village by the bus. When he reached in the college, he saw that Rambir was standing at the first floor of the college and was talking with another boy. He reached near Rambir. In the meantime, he saw that 7/8 boys came to the first floor through stairs. All the aforesaid surrounded them from all directions. PW2 deposed that accused Upender fired a shot which Rambir on his back side. He deposed that accused Hari Om was saying in loud voice "Bachney Naa Paye Saaley ko Jaan Sey Maar Do" PW2 correctly identified accused Dinesh, Devender, Upender, Hari Om Inderjeet, Gyanenshwar Prasad. PW2 deposed that all other remaining accused present in the Court had surrounded Rambir at that time. PW2 knew them correctly by face but he could not give their names. PW2 stated that in the meantime, Rambir fell down and accused persons started running in different directions. In the meantime, Khazan came upstairs,after hearing the noise and seeing that Devender Garner was having a knife while escaping from the spot, Khazan Singh tried to apprehend him. On this, Devender gave two three knife blows to Khazan singh on his back near shoulder. Two police officials were present near the gate and when accused Upender was trying to jump outside the college camps after scaling the bardwires, he was apprehended by the police officials. The person who caught accused Upender took his search and from his possession, a country State Vs. Upender & Ors. SC 75 of 2012 11/112 ID No. 02403R0000861996 made pistol and four live cartridges were recovered. In the meantime, police reached there. Injured was shifted to the hospital. On 16.10.1991, injured was expired.
14. In cross examination, PW2 admitted that he, Khazan Singh and Rambir belonged to the same village. He did not remember if he was arrested in case FIR No.113/87, Police Station Najafgarh, u/s 324/34 IPC. He did not remember if he had visited the court in the year 1987 or 1988. He admitted that he was arrested in a case u/s 307/324/34 IPC and name of other accused was Pratap Singh, who belonged to his village. PW2 admitted that he was arrested in a case u/s 323/506/427/379/34 IPC PS Sadar Gurgaon. He admitted that he was arrested in case u/s 302/506/120B PS R. K. Puram. PW2 stated that in the aforesaid case, one of the accused was Khazan Singh (PW3).
15. PW2 testified that he had not come to know the name of other accused on the same day. He did not remember the name of remaining accused persons. He did not give name of other accused persons in his complaint. This witness wrongly identified accused Akram Jamil as Surender Gosain. PW2 admitted that in his statement Ex.PW2/A, he had not stated that name of Garner was also alias Devender. PW2 stated that he had not given the name of accused Gyaneshwar in his complaint. He came to know his name after he was apprehended. PW2 deposed that he had identified the accused Gyaneshwar at the Police Station and only at that time, he had come to know his name. PW2 stated that he did not accompany the injured to the hospital. From the college, after the proceedings conducted by the police, he went to his house. He stated that after taking his signatures on his statement, police did not write anything on the statement in his presence. He had not given the name of accused Inderjeet in any of his statement including statement dated 03.09.1991 State Vs. Upender & Ors. SC 75 of 2012 12/112 ID No. 02403R0000861996 and 16.10.1991. PW2 stated that he reached his house at about 05:00 pm. He took the bus for his house at about 03:00 pm. He did not meet the brother of deceased namely Ram Phal. On the night of 03.09.1991, the father of deceased had come to his house for going to the hospital but he refused. PW2 stated that the seal was kept by the IO with him after sealing the pullandas.
16. Khazan Singh (PW3) deposed that Rambir belonged to his village. PW3 deposed that he took admission in Aurbindo College in 1983. Deceased Ram Bir was not his friend and Pradeep Kumar was also not his friend. He used to go to ARSD College during those days to meet Raj Singh as well as deceased Rambir. He deposed that on 3.9.1991, he had gone to canteen of ARSD College, Dhaula Kuan, at about 2.00 pm to meet Rambir and to drink water. After drinking water in the canteen, he was climbing the stairs leading to the first floor. In the meantime, he heard a sound of fire on and gun shoot and also cries of somebody. He saw Devender Garner, Upender Dinesh, Hari Om and Inderjeet were coming down running and Devender was having knife in his hand. PW3 deposed that he tried to apprehend Devender Garner who gave him knife blow on his left arm and on the left side of his back side. In cross examination, he deposed that he was not the student of any college. As the students of his village used to study in the college, therefore, he used to go to the college including ARSD college. He knew deceased Rambir, who used to belong to his village. PW3 deposed that during those days Raj Singh who belong to his village used to study in ARSD college and he used to go to meet Raj Singh as well as deceased Ram Bir.
17. PW3 admitted that Pradeep Kumar, Ram Pal, brother of deceased Rambir and other persons from the village used to come to court. PW3 deposed that at the State Vs. Upender & Ors. SC 75 of 2012 13/112 ID No. 02403R0000861996 point from where he was climbing the stairs, the place of occurrence was visible. The stairs did not go straight up to the first floor. He did not know how many stairs were there for reaching the first floor. PW3 deposed that he was in the middle of the stairs when he heard the sound of cries. PW3 deposed that when Rambir received injuries, at that time, Pradeep was not present there. When Rambir received injuries, none of the person who was present there at the time of incident was personally known to him. PW3 deposed that he did not know the person who gave him the knife blow, PW3 stated that he knew one person by the name of Garner who was son of police officer, who used to do "dada giri". He stated that none of the accused person gave him the knife blow or gave any injury to Rambir in his presence. None of the accused were seen by him either in the gallery or the stairs at the time of incident. On being asked, on 15.05.98, he identified accused Upender, Dinesh, Inderjeet, Hariom and Devender Garner and had seen them at the stairs, PW3 stated that none of them were there, PW3 clarified that statement made by him on 03.11.1998 was correct. He admitted that he had seen Devender, Upender, Dinesh, Inderjeet and Hari Om when he used to visit the Court. PW3 denied that brother of deceased used to tutor him that he should take the name of aforesaid persons, as accused. PW3 stated that the police officers who used to come to the court in respect of this case, used to tutor him and IO of this case had told him to name the accused. He admitted that before coming to court, he had never seen the accused earlier. He stated that at the Police Station, when Police was not finding any witness, he and Pradeep agreed to be a witness in this case and police took their signature on blank papers.
State Vs. Upender & Ors. SC 75 of 2012 14/112
ID No. 02403R0000861996
18. Umed Rana (PW4) resident of village Bijwasan. He deposed that on the day of incident, he was going to his college and when he reached in front of the gate. At about 10:15 am, he saw two open jeep were also parked near the gate in the parking outside the college. At about 02:00 pm on the same day, when he was standing near the outer gate of the college with one of his friend, he saw that some boys were coming from inside the college while running and they were being followed by some other boys. Some boys were chasing those boys and were saying that "pakro pakro" as those boys had caused injuries to Rambir by fire arm. Out of those boys, who were ahead two of them, boarded the open jeep bearing no. DDV 4301 and escaped towards the round about of Dahula Kuan. PW4 deposed that he alongwith his friend crossed the ring road and at the bus stop another boy of village Bartnal, Pratap Singh and Narinder Negi met them. They boarded a TSR for going to Safdarjung Hospital under the impression that Rambir must have been shifted to the said hospital. When they reached near red light of Moti Bagh, intersection of ring road, they saw that the jeep was coming behind them. As there was a red light signal for the traffic leading towards AIIMS Hospital, so they got down from the TSR and informed the police officials that the persons sitting in the open jeep were the same who escaped from ARSD college after firing and causing injury to Rambir. Police officials asked the driver of the jeep to take the same besides the road and removed the ignition key of the jeep. Police officials detained those two boys at the time same police picket. In the meantime, another boy reached at the traffic intersection at Moti Bagh on a motor cycle and after identifying him. PW4 informed the police officials that the said boy was also one of the boys who was running out of college after the incident. Police officials inquired about the names of the person who were State Vs. Upender & Ors. SC 75 of 2012 15/112 ID No. 02403R0000861996 apprehended from the jeep and one of them disclosed his name as Gynaneshwar Prashad Sinha and other disclosed the name as Akram Jamil. The motor cyclist was apprehended by the police official. His name was revealed as Surinder Singh Gosain. In cross examination, PW4 stated that although, Rambir was his friend but after coming to know that Rambir was injured, he did not go inside the college to save him. He admitted his involvement in a criminal case and stated that he as well as Pradeep (PW2) were facing trial together. He deposed that neither he or other persons were standing at the gate of college try to apprehend to those person, who were running. He deposed that he was not aware if Rambir was removed to the hospital, when they boarded the TSR from outside the college, for going to Safdarjung hospital.
19. Rajesh Kumar (PW5) deposed that on 03.09.2001, at about 02:00 pm, he was going towards the gate of ARSD college. He reached in front of the college gate and saw that two persons were coming running out of the college gate. One was wearing black colour clothes and other was wearing Sleti dress. Those two boys boarded a jeep of black colour, which was parked outside the college and escaped towards round about Dhaula Kuna. He could read the number of the jeep only up to DDV and not thereafter. In the meantime, another boy also came running out of the college. He boarded a motorcycle make Yamaha and escaped towards Dhaula Kaun. He also saw some students chasing those boys coming out of the college by saying that they were escaping after causing injury to one person. He came to know that the injured peson was from village Bharthal and his name was Rambir. He saw Rambir was lying on the first floor of the college and blood was coming out from his belly and thighs. He picked him up with the help of two three boys and they State Vs. Upender & Ors. SC 75 of 2012 16/112 ID No. 02403R0000861996 brought him outside the college on ring road. From there, they removed him to RML hospital in a maruti car. After some time, police reached in the hospital and made inquiries from Rambir.
20. Pratap Singh (PW7) deposed that on 03.09.1991, he was standing in front of Aurbindo college. At about 02:00pm, he heard a sound of gun shot from the side of ARSD college. In the meantime, Umed Rana, resident of Bijwasan, who was known to him, informed him that somebody had shot Rambir. PW7 along with Umed Rana crossed the ring road and came towards the side of the road leading Moti Bagh. From there, he along with Umed Rana and another boy Narinder Negi, boarded a TSR for Safdarjung hospital and reached at Moti Bagh traffic intersection. They spotted same black colour jeep coming from behind. The number of jeep was DDU 4310. PW7 deposed that motor cycle was being boarded by the same person, who were coming out of the college after the incident. They informed the police at Moti Bagh police picket. The police officials made the driver of the jeep to park it besides the road near the picket and apprehended two persons from the jeep. PW7 stated that there were two persons in the jeep and not three four. Police officials asked the name of two boys who gave their names as Gyaneshwar Prasad Sinha and Akram Jamil.
21. PW7 stated that in the meantime, a Yamaha motorcycle no. DNI 2196 came from the side of Dahula Kuan and Umed Rana told the police officials that the person sitting on the pillion seat of the motor cycle was also involved in the shooting incident. In the meantime, due to green signal, the motor cyclist crossed the intersection of Moti Bagh and a police official chased the motor cyclist after taking lift. After sometime, the said police official brought the person who was sitting at State Vs. Upender & Ors. SC 75 of 2012 17/112 ID No. 02403R0000861996 the pillion of the motor cycle to the police post. On enquiry by the police, said person disclosed his name as Surinder Singh Gosain. In cross examination, PW7 admitted that he did not enter in ARSD college on that day and as such, he did not know what happened inside the college. On asking to produce the signed statement, no such signed statement was available on record. PW7 did not see Rambir being carried to the hospital by any conveyance. He admitted that he was involved in a case under section 307/34 IPC, PS Najafgarh and in that case, Pradeep (PW2) was also coaccused. He stated that Rambir was not his friend but belonged to his village. He knew his elder brother Ramphal, who was serving in Delhi Police. PW7 admitted that he had not seen accused Surinder escaping on the motorcycle from the college. He did not know the name of the person who was driving the motorcycle. PW7 knew Umed Rana prior to the incident. He admitted that they did not chase anybody in TSR.
22. Dariyab Singh (PW13) deposed that on 18.10.91, he along with relative of deceased and police official went to the cremation ground to collect the phool of deceased. During collection of phool, one bullet (sikka) was recovered and the same was handed over to police official. Police kept the same in a vail and prepared a pullanda with the help of cloth and took some ash of deceased and kept in another vail and prepared the second pullanda. Both pullandas were prepared and sealed and seized vide seizure memo Ex.PW13/A. PW13 identified one burnt bullet (Ex.PW13/1) and ash (Ex.PW13/2).
23. Ram Phal (PW14) brother of deceased and a head constable in Delhi Police. He deposed that he endorsed dying declaration (Ex. PW14/A) after deceased was decalred fit by Dr. A. K. Venkatachalam (PW41). He deposed that Rambir State Vs. Upender & Ors. SC 75 of 2012 18/112 ID No. 02403R0000861996 (deceased) was admitted in Safdarjung hospital from 17.09.1991 to 14.10.1991 and thereafter, on the advise of Dr. Deepak Vashishth. He was taken to Albega hospital on 14.10.1991. In cross examination, PW14 stated that he informed IO/Inspector Chander Mohan that original dying declaration (Ex.PW14/S) was not on file. IO/Inspector Chander Mohan advised him that the same shall be brought on record. PW 14 denied that date of discharge was 07.10.1991 but confirmed that Rambir (deceased) was discharged on 14.10.1991 vide document (Ex. PW18/C).
24. Karan Singh (PW27) deposed that on 18.10.1991, one burnt cartridge was taken out from the ashes of deceased and same was handed over to the police. Police took the same into possession vide memo Ex.PW13/A. In cross examination, PW27 stated that he got training in NCC. He admitted that any metal piece could be of the shape mentioned in (Ex.PW13/1). On being asked, that on what basis he stated that Ex.PW13/1 was the bullet, the witness stated that the deceased died because of bullet Ex.PW13/1 and that is why he was saying that it was a bullet. He had not seen the bullet inside the body of deceased. He had not seen the deceased before his death. He had not seen the treatment card or any other document. He had no personal knowledge whether Ex.PW13/1 was the bullet or not.
25. Bal Kishan (PW29) corroborated Sh. Karan Singh (PW27). In cross examination, PW29 admitted that he signed as Bal Kishan in Ex.PW13/A and not as Kartar Singh. He had not made any statement to the police. He knew Ram Phal brother of deceased, who was posted in Delhi police. PW19 deposed that Hari Singh was his mama, who was a witness in this case. He stated that he had not seen any burnt bullet in his life. He had not personally inspected the bullet by taking it into his hand. No sketch of the bullet Ex.PW13/A was prepared. He had not put any State Vs. Upender & Ors. SC 75 of 2012 19/112 ID No. 02403R0000861996 mark of identification on Ex.PW13/1 and on Ex.PW13/2. PW29 stated that the police officials were standing on the way and waiting for them. They went on foot. The police officials had gone on their jeep. This witness stated that the bullet shown to him, after taking out from the envelope was not a cylindrical object. The bullet shown to him was of a smaller size and the bullet recovered from the ashes was of bigger size.
26. Hari Singh (PW30) father of deceased. He deposed that 03.09.1991, his son Rambir was stabbed with knife and bullet injury and was admitted in RML Hospital. Thereafter, he was referred to Safdarjung Hospital and discharged from there hospital on 14.10.1991. His son Rmaphal took Rambir to Albega hospital, Gurgaon, where he expired on 16.10.1991, due to bullet injuries. In the hospital, doctor told them that he would inform the police. One paper was handed over to them. Doctor told them that if anybody obstructed or stopped them, they should show the said paper to concerned person. They waited for police up to 04:30/04:45pm but police did not reach at their house and people from their village, advised them that they should cremate the dead body. Then, they took dead body to the cremation ground along with the village people and relatives and dead body was cremated. In cross examination, PW30 stated that he along with his brother in law's son reached to the Wellington hospital at about 06:30 pm. His son remained in the hospital till 17.09.1991. Police did not enquire from him anything till 16.10.1991. In his presence, on 16.10.1991, statement of his son Ram Phal and of Pradeep were recorded for the first time. His son in law Dharam Singh informed police. On telephone, they did not ask the police why despite the telephonic message given by Dharam Singh why they had not come to the native place or at the State Vs. Upender & Ors. SC 75 of 2012 20/112 ID No. 02403R0000861996 hospital. When police reached to the native place, the dead body was already cremated. Police informed them not to do any ceremony before their arrival. He denied the suggestion that his son did not die because of any injury having been inflicted on his person or that he had died a natural death. He denied the suggestion that it was for this reason, that authorities of Albega hospital did not inform police. He denied the suggestion that for this reason, the body of his son was not subjected for postmortem.
27. D. P. Sinha (PW34) owner of Jeep No. DDV 4310. He deposed that in the year 1991, police men came to his residence at 10:00pm and seized his jeep from his residence.
28. Sunil Sharma (PW35) deposed that about 10 years ago, he was going on his motorcycle no. DNI 2196 towards Lajpat Nagar via Dhaula Kuan. Towards Lajpat Nagar, there was a barrier at the distance of 2 km from Dhaula Kuan and on the barrier, police officials were present, who stopped him and asked him the documents regarding his motorcycle but he was not having the documents. He deposed that on that day, Surender (accused) was also with him since morning on his motorcycle. His motorcycle and Surender were detained by PCR police officials. He was permitted to bring original papers of his motorcycle. On the next day, he went to the PS R. K. Puram where police officials asked him to sign some blank papers but he refused. His motorcycle was seized by the police which was later on released to him.
Witnesses of college
29. B. L. Arora (PW1) officiating Principal, ARSD College deposed that on 3rd September, 1991 at about 01:30/2:00 pm, he was sitting in his office. He heard some State Vs. Upender & Ors. SC 75 of 2012 21/112 ID No. 02403R0000861996 bullet sound as a result of which he came out of his office and noticed that some persons were running in the veranda towards gate. There was noise inside the college premises. He went towards the gate alongwith one of his colleagues. He noticed that one police man was trying to stop one person and was saying either he should stop, failing which he would kill him. The police person apprehended that boy. He along with his colleague went near that police officer. In the meantime, some more police officials came there, they took the search of that person. PW1 stated that he did not remember the name of that person who was apprehended by the police officer. He stated that the bullet were already with the police which was recovered from the possession of the person. In his presence, the police lifted blood stains, earth control etc., after going to First floor of the building of the college. In crossexamination, he admitted his signature on the letter dated 03.09.1991 (Ex.PW1/DA), vide which report was given by PW1 to the Police. It may be noted that, in the letter, name of the assailant is not mentioned and it is mentioned that one person was injured in the incident.
30. Hari Ram (PW12) chowkidar at ARSD college. He did not remember and deposed that at about 02:00 pm, he came for duty at ARSD college and while he was going to take charge from other chowkidar namely Om Prakash. He was going for checking a room and found a katta on stairs. He handed over katta to Sh. Purshottam Lal Jain, who kept the katta in the daraj of his table. PW12 was cross examined by Addl. PP. PW12 denied that he made statement before the police on 12.09.1991. He denied that Sh. N. L. Jain was not present in his room or the said katta handed over to Sh. Krishnani PA to Principal and on his direction, katta was kept in a daraj of Sh. Jain. He could not identify katta. He denied that katta which State Vs. Upender & Ors. SC 75 of 2012 22/112 ID No. 02403R0000861996 was shown to him was the same katta, which was kept by him in the daraj of Sh. Jain at the direction of PA to Sh. Jain.
31. Narrotam Lal (PW24) Administrative officer in ARSD college, deposed that on 03.09.1991 he was present in his office and at about 01:30/02:00 pm, he heard noise in the corridor of the college outside his room. He came out from his office and found that students were running in the corridor. He came to know that one boy had been stabbed by some one then he went to inform the police. He again came to know that one boy had been apprehended. PW24 deposed that One chowkidar namely Hariom told him that he put a pistol in his drawer in his absence as he was busy in telephoning the police. This witness was cross examined by Learned Addl. PP. He denied that he stated to the police that when he came out of his house, he found that one Rambir was stabbed by knife by some outsider boy and also injured by gun shot and who was taken by some boys to the hospital. He denied that in his presence in the office of the Principal, the pistol was checked by the police and during checking one empty cartridge was taken out from the chamber of said desi katta. PW24 could not identify accused Upender, who was apprehended by police. . He could not identify the case property.
32. S. C. Kishnani (PW25) PA to the Principal ARSD college, deposed that in the month of September 1991, he was going outside from his room and saw that one of the chowkidar, whose name he did not remember met him. He was having a pistol in his hand and told him that the said pistol was taken from the staircase. PW25 directed the chowkidar to keep the same in the drawer of A. O, in his room. He narrated the whole incident to Sh.N. L. Jain, AO as well as to the Principal of the college.
State Vs. Upender & Ors. SC 75 of 2012 23/112
ID No. 02403R0000861996 Forensic experts
33. Dr. C. K. Jain (PW44) prepared CFSL report Ex. C1 dated 31.01.1992.
34. Sh. G. D. Gupta (PW45) Principal Scientific Officer deposed that on 18.11.91, three sealed parcels were received through Balletic Division CFSL in connection with present FIR. Seals were found intact. On the basis of biological examination carried out, PW45 prepared a detailed report (Ex.PW45/A). Material/clippings of the exhibits were forwarded to serology division of the laboratory for serological analysis.
35. C. M Patel (PW46) Assistant Director , Biology deposed that on 05.12.1991, received three small clippings/portion of exhibit in the present FIR from biology division of CFSL for serological examination. PW46 conducted different serological tests for blood origin and grouping and found human blood of B group on all exhibits. The detailed report dated 20.12.91 is Ex.PW46/A.
36. Rup Singh (PW47) Principal Scientific officer and Head of Ballistic division deposed that on 08.10.1991, eight sealed parcels marked no. B1 to B5 and S1 to S3 and on 24.10.1991, two sealed parcels marked B6 and S4 received in CFSL. The seals on the parcels were intact and tallied with the specimen seal. Parcels were opened and same were found carrying cartridges, one burnt jacket and T shirt. PW47 technically examined including test firing and comparison of fired ammunitions under comparison microscope. PW47 prepared his detailed report dated 12.03.1992 which is Ex.PW47/A. PW47 was of the opinion that burnt jacket portion of .315 bullet of parcel no. B6 could have been fired from .315 country made pistol in question. PW47 deposed that definite opinion could not be given as the bullet was badly burnt and that the hole on the left upper back portion of T shirt State Vs. Upender & Ors. SC 75 of 2012 24/112 ID No. 02403R0000861996 contained in parcel no. S3 could have been caused by the firing of a bullet from . 315 inch country made pistol in question.
Police and other witnesses
37. Sh. Rakesh Garg (PW38) Metropolitan Magistrate, conducted TIP of accused Hari Om which was marked to him by his link Magistrate. He stated that accused refused to participate in TIP on the ground that he was shown to PWs on 17.10.1991. He recorded the statement of accused. He placed on record TIP proceedings (Ex.PW38/A).
38. Ramesh Chand (PW19) Duty constable posted in Safdarjung Hospital. He deposed that on 14.10.1991, patient Rambir Singh s/o Hari Singh r/o village Bharthal was discharged from hospital who was admitted in the hospital on 17.09.1991. PW19 signed the MLC (Ex. PW18/C) at point A as the patient was discharged in his presence.
39. Constable Inder Prakash (PW8) deposed that on 16.10.1991, he was posted in Police post Dunda Hera, district Gurgaon in Haryana Police. On that day, he accompanied ASI Om Pal Singh to Albega Hospital in Udyog Vlihar, Gurgaon and thereafter, came back to the police post. PW8 placed on record Ex.PW8/A.
40. SubInspector Dhani Ram (PW9) deposed that on 03.09.1981, he received a message on wireless that the boys had been stopped by in the jeep who had committed the offence at ARSD college. PW9 along with Inspector Chander Mohan reached at Moti Bagh chowk where they met Constable Ashok and Constable Kamal Kishore at the spot, who apprehended the said boys with jeep bearing no. DDV4310. Surender Singh's motorcycle was also seized by the police. Police took Surinder Singh as well as two witnesses i.e. Umed Rana and one Negi to State Vs. Upender & Ors. SC 75 of 2012 25/112 ID No. 02403R0000861996 the police station R. K. Puram. In cross examination, PW9 deposed that he reached near Moti Bagh chowk around 02:15 pm. He did not come to the college. He had not visited the spot on that day. No proceedings was conducted at the place of apprehension. PW9 did not make any departure in the roznamcha in the police station. PW9 stated that the motorcycle was not deposited at malkhana by them. The motorcycle was handed over to the IO. He did not remember whether seizure memo regarding seizing of motorcycle was prepared by the IO or not.
41. Constable Javad Hussain (PW10) duty constable at RML Hospital handed over one sealed pullanda to IO on 03.09.1981 with the seal of CMO, Willington hospital. Pullanda was containing one pant and T shirt of injured Rambir. IO sealed and seized the same vide seizure memo Ex.PW10/A.
42. Constable Devender Singh (PW11) was on duty at ARSD college. PW11 deposed that on 03.09.1991 he along with HC Surender Singh were present at the gate of college. At about 01:40 pm, some persons alighted from a car and went inside the college and at about 01:50 pm, he heard a noise of cracker and on this, some boys came towards them running. PW11 heard a noise that a fire had been shot by those boys. Some persons from the public hit that boy with the stone. That boy was apprehended and his name was revealed as Upender s/o Raghu Veer Singh. On his search, four live cartridges were recovered which were handed over by PW11 to IO/SI Om Pal Singh along with Upender. He deposed that Principal of college handed over katta and M. P. cartridges to IO. PW11 stated that Pradeep and one more person gave statement to the IO/SI Om Pal Singh. He was cross examined by Ld. Addl. PP. In cross examination, he admitted that he knew Ramphal, brother of deceased, working in Delhi Police. He admitted that he met Ramphal outside State Vs. Upender & Ors. SC 75 of 2012 26/112 ID No. 02403R0000861996 Court room before giving his statement. He deposed that some persons were coming inside college and some were going outside college from inside.
43. Constable Suresh Kumar (PW15) joined the investigation alongwith Constable Chandra, Constable Hariom, Constable Devender and reached at the spot where chowki incharge SI Om Pal was already present there along with SI Surender, Constable Yatender. SHO and ACP also reached at the spot. Incharge chowki recorded the statement of Pradeep and prepared rukka and handed over the same to Constable Hariom for registration of case. Constable Hariom took the rukka and reached at the police station for registration of FIR. SI Ompal along with Constable Yatender reached at RML hospital. On returning of SI Ompal and Constable Yatender at the spot, crime team also reached there. SI Ompal took the blood from the spot and put the said blood sample and earth sample in the foils and prepared the pullanda with the help of cloth and sealed with the seal of SKS. The principal of the college also reached there, who handed over one country made pistol (katta) and one fired bullet which was in the katta on the back of empty cartridge a script as KF X mm/0315 IN and four live cartridges were produced by HC Surender to SI OM pal and all the live cartridges were kept in a cloth pullanda and said pullanda was sealed with the seal of SKS. He deposed that one khan Abdul told IO/SI Ompal that three boys took his motorcycle and ran away with his motorcycle. SI Ompal received the information that boys who took motorcycle were apprehended at Moti Bagh picket and one among of them was with the motorcycle and two persons were apprehended with open jeep. IO/SI Ompal and ACP reached at Moti Bagh picket and all the three boys namely, Gyaneshwar, Surinder and Ahmad Zamil were arrested. PW15 deposed that on 08.10.1991, he took eight sealed pullandas and went State Vs. Upender & Ors. SC 75 of 2012 27/112 ID No. 02403R0000861996 to CFSL, Lodhi Colony for depositing the same. After depositing the same, he handed over the copy of RC to MHC (M). On 24.10.1991, PW15 again took two sealed pullandas for depositing the same at CFSL and after depositing the same, copy of RC was handed over to MHC (M). On 03.09.1991, on the first instance, they reached at ARSD college and accused Upender was apprehended while he was running and he was apprehended by HC Surinder. PW15 identified desi katta which is Ex.P1, one empty cartridge Ex.P2 and four cartridges Ex.P4/16.
44. Constable Yatender (PW16) deposed that on 03.01.1991 at about 02:10 pm, the DD No.15 was recorded on the basis of information received from Gama 51. PW16 took copy of said DD and reached at the spot. SI Ompal Singh met him and handed over the said DD to him. Then, he along with SI Ompal Singh reached at ARSD college where HC Surender Singh, Ct. Devender met them. HC Surender Singh handed over four live cartridges to SI Ompal Singh. Accused Upender was apprehended and said four live cartridges were recovered from his possession. PW16 stated that Rambir was admitted to any hospital or nursing in the area of Dunda Hera. They again came to the PS Kapashera where I/C PP SI Kanta Prasad Kukrati told to SI Ompal Singh stated that the dead body of Ramvir was being cremated in the village. They went to cremation ground, where the dead body was under fire and nobody was present in the cremation ground that time. IO recorded the statement of Ramphal, Pradeep and Sanjay. In cross examination, PW16 testified that from ARSD college, they went to RML hospital which was about 5 to 7 kms from the ARSD college. He deposed that the katta was brought by the principal at about 4.45/4.50 pm at that time Ct. Hari Om Ct. Devendar and SI Om Pal were present to whom the katta was produced along with empty cartridge. He State Vs. Upender & Ors. SC 75 of 2012 28/112 ID No. 02403R0000861996 could not tell the exact time but it was about 05.00/05.30 pm.
45. Constable Hari Om (PW20) joined the investigation along with IO. He placed on record seizure memo of jeep Ex.PW20/A and about the arrest of accused persons Surender, Akram and Gyaneshwar. PW20 testified that he ran towards the place from where he heard the firing shot as well as coming of jeep before incident. This witness has corroborated the PW4, PW5 and PW7. PW20 identified katta and cartridges.
46. Head Constable Surender Singh (PW21) narrated the incident about the arrest of accused Upender at the spot. PW21 deposed that there were about 400/500 students who were going and coming in the college. There was a bus stand in front of ARSD College. The distance between the bus stand and the gate of ARSD College was about 200 feet from the bus stand. The distance between the main gate and the main building of the college was about 200 feet. All those 400/500 students were on the path in between the building and the main gate who were coming and going. Two open jeep and two maruti cars had come at about 01:50 pm and 810 persons got down from the vehicles. He did not state that any of the accused was amongst them. HC Surender Singh (PW21) did not follow those persons. After those 810 persons entered into the college, he heard that shot was fired after five minutes. He stated that after hearing the shot, he along with Const. Devender ran towards the place from where he heard the shot. Before they could reach there, 40/50 boys were running out of the Gallery came towards them. Those 40/50 persons were saying that person was running away after firing and shouting catch him, catch him. They caught hold of him. Somebody from the back side, gave stone blow on the head of the accused Upender fell down and then, he apprehended him. State Vs. Upender & Ors. SC 75 of 2012 29/112
ID No. 02403R0000861996 Four five cartridges were recovered from his right pocket of pant. The stone was thrown by the persons who were coming out of the ARSD college building and who were among the 40/50 persons running away. There was no person in between him and the accused Upender before apprehending him at that time.
47. Inspector K. P. Kukreti (PW26) SHO, PS Nabi Karim, received a message that one Rambir, who was admitted in nursing home in Kapashera had died. On receipt of the wireless message, he verified the information and it was found that there was no nursing home in the area of PP Kapashera. Thereafter, SI Ompal, Incharge, PP Nanankpura reached at PP Kapashera who narrated the same information and did not find Rambir admitted in any nursing home. Lateron, through one of their staff, PW26 came to know that Rambir was being cremated in his village Bharthal. On receipt of this information, he along with SI Ombir reached Bharthal and found the body of Rambir (deceased) on the flames at the cremation ground of the village. No person was found at that time at cremation ground. PW26 visited the house of Rambir and inquired from Sh. Hari Singh, father of deceased, Sh. Ramphal his brother and one more person Pradeep and recorded their statements. SI Ompal Singh gave directions to all the relatives of deceased to not to disturb the fire as the police had to extract bullet part embedded inside the body of deceased. In cross examination, PW26 stated that the complainant party could not give any explanation as to how the body was put to the flames which was concerned with the police case. PW26 admitted that when the police reached at cremation ground, the body was almost charred and was not in a position that it could be lifted from the wood.
48. SI Madan Pal (PW28) draftsman deposed that on 21.11.1991, Inspector State Vs. Upender & Ors. SC 75 of 2012 30/112 ID No. 02403R0000861996 Chander Mohan called him at ARSD college. He prepared scaled site plan which is Ex.PW28/A.
49. HC Chand Ram (PW31) joined the investigation with IO/SI Ompal, PP Nankpura. He alongwith HC Surender Kumar took accused Upender for medical examination. On 17.11.1991, he again joined the investigation. He is a witness of seizure memo of motorcycle which was seized by IO/SI Omapl vide seizure memo Ex.PW31/A.
50. Constable Ashok Kumar (PW32) deposed that he was posted at Moti Bagh picket. He received a message that there was a firing in ARSD college and were altered that at about 02:15 pm three boys would come to their picket and that 810 boys in jeep DDV 4310, who had ran away from the spot. After 57 minutes, a jeep came from ARSD side to their picket. He along Ct. Kamal Kishore stopped the jeep. There were two boys Gyaneshwar and Akram were on the jeep. After some time, a motor cycle came on which two boys. They were stopped by Ct. Ashok Kumar and Ct. Kamal Kishore and the three boys who had told them about the incident identified one boy Surinder, sitting on the pillion side of the motorcycle. He deposed that he could not identify any of the accused. Thereafter, he stated that he could identify one accused and he identified accused Dinesh as one of the person, apprehended by him. It was not the case of prosecution that accused Dinesh was apprehended by him. He was declared hostile and cross examined by the Addl.P.P. In his cross examination by the Addl. PP, PW32 Const. Ashok Kumar stated that he could tell the accused Akram, Gyaneshwar and Surender were the same persons who were apprehended by him at Moti Bagh Picket. Even on pointing out of Addl.P.P. the said witness stated that he could not identify them. In cross State Vs. Upender & Ors. SC 75 of 2012 31/112 ID No. 02403R0000861996 examination, SHO Inspector Chander Mohan asked about the name and address of the person driving the motor cycle and also asked for the documents i.e registration etc. of the motor cycle from that person, In his presence, the driver of the motor cycle produced the papers regarding the motor cycle to the SHO. But the motor cycle was taken to the P.S. by the S.H.O. but the person who was driving the motor cycle was permitted to leave. He further stated that as there was red light at the Moti Bagh. PW32 stated that there was a red light on the crossing at Motibagh the motor cycle was stopped on the red point itself and they did not have to chase the motor cycle to apprehend the accused.
51. Constable Som Rajan (PW33) deposed that on 17/18.10.1991 at about 11:00 pm, three accused namely Dinesh, Hariom and Devender came along with their counsel and surrendered in the Police Station. They were arrested and their personal search were conducted vide memo Ex.PW33/A, Ex.PW33/B, and Ex.PW33/C respectively. During investigation, accused persons led police party up to ARSD college. IO prepared pointing out memo Ex.PW33/D. Thereafter, accused persons led them up to Killokari village in search of some other accused but same were not traceable.
52. HC Unnikrishnan (PW36) was posted as photographer. On 03.09.91, SI Ompal Singh called him at the spot and he reached at ARSD college Dhaula Kuan, where on the directions of IO, he took the photographs of spot from different angels which are Ex.PW36/1 to Ex.PW36/4. The negatives are Ex.PW36/5 to Ex.PW36/8 and one wash negative is Ex.PW36/9.
53. ASI Ramesh Kumar (PW37) duty officer, received rukka through Constable Hariom sent by SI Ompal Singh. On the basis of rukka, he recorded State Vs. Upender & Ors. SC 75 of 2012 32/112 ID No. 02403R0000861996 formal FIR no. 433/91 u/s 307/147/145/148/149/34 IPC and section 25/54/59 Arms Act. Carbon copy of the same is Ex.PW37/A.
54. Constable Ajay Kumar (PW39) placed on record DD no. 15 (Ex.PW39/A) dated 03.09.1991. He deposed that the original DD register had been destroyed vide order no. 3401/HACR/ South West dated 13.10.1999. In cross examination, PW39 admitted that there was over writing at point A i.e. dated '3'. He admitted that the date was changed from 04.09.1991 to 03.09.1991. He denied that the roznamcha was withheld/kept pending by them. He denied that all the entries were made later on conveniently according to their will.
55. Constable Charan Singh (PW40) deposed that on 17.10.1991, he was present at Police Station R. K. Puram and on that day, at about 11/11:30pm, accused Devender, Hariom and Dinesh were produced before SHO, who took their personal search. During personal search Rs.22/ from Devender, two handkerchief and Rs.30/ from Dinesh and one kada, Rs.15/ from Hari Om were recovered. Thereafter, SI Ompal took accused persons to ARSD College and accused persons pointed out the spot of incident. Thereafter, they went to Ashram in trace of some other accused. On 18.10.1991, they went to Badarpur, he along with SHO, SI Om Pal Singh and Constable Somrajan reached at Badarpur in trace of motorcycle but the same could not be trace. Thereafter, they came back at the police station. In cross examination, PW40 admitted that the place of occurrence was already in the knowledge of police. He denied that Dinesh handed over pointed out the place of incident. He denied that he signed the papers at the police station. PW40 stated that no inquiries were made by the IO or the SHO from the accused persons in his presence. He did not know the number of motorcycle or its make which was State Vs. Upender & Ors. SC 75 of 2012 33/112 ID No. 02403R0000861996 searched by the IO. He admitted that place of occurrence i.e. ARSD college was known to police before the arrest of the accused persons.
56. IO/Inspector Chander Mohan (PW43) is the investigating officer, who prepared several documents during the course of investigation. He recorded the statements of Pradeep, Umed Rana, Rajesh Kumar and other prosecution witnesses. PW43 has placed on record several documents prepared by him. He deposed that on 05.09.1991, he took over investigation from SI Om Pal Singh (since deceased). On 20.09.1991, he along with SI Ompal Singh reached at spinal ward, Safdarjung hospital and found injured admitted in the hospital and his brother Ramphal was present there, as his attendant. He recorded the statement of injured Rambir u/s 161 Cr. P. C which is Ex.PW43/A. PW43 deposed that on 08.10.1991, the exhibits were sent to CFSL through Ct. Suresh. On 16.10.1991, information with respect to death of Rambir was received. He died in a nursing home. SI Ompal Singh was sent for conducting necessary enquiries. SI Ompal Singh collected the death report of deceased from Albega hospital . PW43 identified signatures of SI OmPal Singh on the statements recorded by him u/s 161 Cr.P.C. During investigation, accused Devender @ Garner, Dinesh and Hari Om were arrested and during the intervening night of 1718.10.1991, they pointed out the place of incident at ARSD college and pointing out memo (Ex.PW43/G) was prepared. Disclosure statements of accused persons namely Devender, Hari Om and Dinesh were recorded (Ex.PW43/H, Ex.PW43/J and Ex.PW43/K) respectively. He deposed that on 16.11.991, after receipt of medical record of Albega hospital regarding treatment of RAmbir, statement of Deepak Vashishth was recorded and the papers were seized vide seizure memo (Ex.PW43/L). PW43 deposed that rukka was prepared by SI Om Pal State Vs. Upender & Ors. SC 75 of 2012 34/112 ID No. 02403R0000861996 Singh and he made endorsement on the rukka which is (Ex.PW43/M) and case FIR no. 433/91 was registered. He placed on record site plan (Ex.PW43/N), sketch plan (khaka) of country made pistol (Ex.PW43/O) prepared by SI Om Pal Singh. He deposed that during investigation, SI Om Pal Singh seized one motor cycle no. DMI 2196 vide seizure memo Ex.PW43/P. PW43 placed on record personal search of accused Gyaneshwar Prasad Singh, Akram Jamil Surender Singh (Ex.PW43/Q to Ex.PW43/S) respectively.
57. PW43 deposed that accused Upender was having an injury on his head and was sent to hospital for medical examination with request application (Ex.PW43/T). He deposed that SI Om Pal Singh recorded disclosure statements of accused Akram Jamil, Upender Kumar, Gyaneshwar Prasad Sinha, and Surender (Ex.PW43/U to Ex.PW43/X). In cross examination, PW43 stated that he had not signed on any papers on the proceedings of 03.09.1991. He stated that the seizure of desi katta and live cartridges took place at about 06:30 or 07:00pm. He could not tell the exact time. PW43 admitted that in (Ex.PW43/DB) there was no mention of recording of statement of deceased on 20.09.1991. He admitted that (Ex.PW43/DC, Ex.PW43/DD and Ex.PW43/DE) bear the signatures of SI Om Pal Singh at point A on his behalf. PW43 admitted that (Ex.PW43/DA and Ex.PW43/DB) did not bear signatures of SI Om pal. He stated that (Ex.PW43/DA and Ex.PW43/DB) were recorded by SI Om Pal Singh under his supervision and on his direction and dictation. PW43 admitted that in report u/s 173 Cr. P. C, it is not mentioned that the statement of Rambir Singh was attested by his brother Ramphal on 20.09.1991. PW43 categorically stated that it was not brought to his knowledge till death of deceased, that he was admitted in Albega Hospital. On receipt of information of State Vs. Upender & Ors. SC 75 of 2012 35/112 ID No. 02403R0000861996 death of Rambir (deceased), SI Om Pal Singh was sent for investigation and he came to know that Rambir (deceased) had already been cremated on 16.10.1991. PW43 admitted that Prashant Nagar was also interrogated in connection with this case. PW43 deposed that he knew the name of father of Prashant Nagar was Raj Pal Nagar . PW43 denied that during investigation, he came to know that Prashant was also known by the name of Garner. He could not tell as to why the name of Devneder as Alias in Ex.PW43/N was not mentioned in the concerned case diary and in the concerned case diary, only name of Garner is mentioned. He admitted that except Garner, no other identity was disclosed by Pradeep in his statement (Ex.PW2/DA) PW43 stated that since identify of Devender was established in the statement of Khazan Singh, therefore, he did not feel any necessity.
58. On conclusion of prosecution evidence, statements of accused persons u/s 313 Cr. P. C recorded. Statement of accused persons is as under:
Statement of accused persons
59. Accused Dinesh stated that in the year 1991, he contested election for central council of Delhi University Students Union at Law Center, 1 Mandir Marg. Election nomination was filed on 03.09.1991,and he was present at Law Center 1 from 12:30pm till 08:00pm on 03.09.1991.and on the same day, he was declared elected.
During the aforesaid period viz from 12:30 pm to 08:00pm on 03.09.1991, he remained in the company Sh. Neeraj, who was elected President of Law Center1 and Vivek Singh, who was elected as Member council. Hence, in view of the above, there was no question of his presence at ARSD College on 03.09.1991 which was at a distance of about 10 km from Law Center 1. He stated that this case is full of manipulation, padding and unfair investigation. In fact, one student namely Prasahnt State Vs. Upender & Ors. SC 75 of 2012 36/112 ID No. 02403R0000861996 Nagar who was son of a police officer was inimical to him because of college politics and he got him implicated falsely in this case. He stated that Prashant Nagar wasthe culprit who had been named during investigation but was never joined by the police during investigation nor he had been challaned in this case. As per DD no. 15, dated 03.09.1991, PP Nanakpura, the quarrel took place in front of ARSD college and not inside ARSD college. SI Ompal was given the copy of DD for probing into the matter and he reached the spot along with staff. SI Ompal has not been produced in this case.
60. Accused Devender stated that Prashant Nagar was popularly known as "Garner" and no student and staff knew his real name. He was son of a police officer namely Inspector Rajpal Nagar, who was incharge special staff, South West District at Dhaula Kuna. He stated that his office was just near the place of incident. Garner was inimical to him because of college politics and he got him implicated falsely in this case in order to save himself. He stated that Garner was the culprit, who had been named during investigation. He had no alias with his name and he was never known as Garner and Garner was a different identity and a different person altogether.
61. Accused Surender stated that he was not involved in the alleged incident on 03.09.1991. He was with Sunil Sharma (PW35) since morning of 03.09.1991. Sunil Sharma was driving the motorcycle and when they reached half km ahead of Dhaula Kaun towards Lajpat Nagar, there was a police barrier and PCR. He stated that it was late afternoon at that time. They were stopped by the police at the check barrier and the police officials asked Sunil Sharma (PW35) to show the documents of motorcycle. Sunil Sharma was not having the papers. He along with motorcycle State Vs. Upender & Ors. SC 75 of 2012 37/112 ID No. 02403R0000861996 was detained by the police and Sunil Sharma was let off to bring the papers of the motorcycle. He stated that Sunil Sharma did not return back with the papers till late night, he was wrongly arrested and later on came to know that he had been implicated in murder case. He had no criminal history and was never involved in any activity which was against law. He was married on 29.09.1990. He passed the college in the year 1987 and after that he started working with Western Electronics till June, 1989 and after June 1989, he joined HCL, Noida and after his marriage, he started his own business of garment fabrication unit under the name and style of Fine Stitch at Taimur Nagar. He placed on record his educational and employment documents which are (Ex. D1 to Ex. D5).
62. Accused Upender stated that he was present at the gate of ARSD College at around 02:30 to 03:00 pm, when he was hit in the head by a stone by some unknown person. He became unconscious and regained consciousness at 07:00 pm at Safdarjung Hospital. Thereafter, police falsely arrested him and implicated him in this case. Accused Akram Jameel stated that he was not involved in the alleged incident on 03.09.1991. Accused Hariom stated that he was not involved in the alleged incident on 03.09.1991 and he had completed his Graduation in the year 1987. Accused Gyaneshwar stated that he was innocent and falsely implicated and was not involved in this case. Accused Inderjeet stated that he was not involved in the alleged incident on 03.09.1991. He stated that he himself moved the application for getting conducted his TIP from the alleged witnesses. IO did not opt for the same. His application dated 18.11.1992 is (Ex.DXA). He stated that he was married in the year 1989 and was having no connection with the college or college politics. State Vs. Upender & Ors. SC 75 of 2012 38/112
ID No. 02403R0000861996
63. Accused produced four defence witnesses in their support, who are as under:
Defence evidence
64. Sayyad Iqbal Ahmed (DW1) Junior Assistant, Law Center 1, University of Delhi. He deposed that he was working in Law Center 1 since April 1991. In the year 1991, the Law Center used to be at Mandir Marg. In September 1991, Student Union Election at Law Center 1 were held. He testified that in the year 199192, elections of which were held in September 1991, Sh. Neeraj was the President. Sh.Rohit Bhandari was the Secretary. Sh. Neeraj Walia was probably the Vice President. Sh. Dinesh Kumar was the Central Counselor in the students union. He did not remember the names of other members of union. DW1 identified accused Dinesh Kumar in the Court and stated that Dinesh Kumar was the same person who was Central Counselor in the Students Union in the year 1991.
65. L. K. Sardana (DW2) Advocate at Patiala House Courts. DW2 testified that he had moved application Ex.PW43/DN in the Court of Learned ASJ on 29.11.991. He moved the application on behalf of accused/applicant Garner in case FIR No. 433/91, PS R. K. Puram u/s 307/147/143/149/34 and 25/27/54 Arms Act, bearing his signatures at point A. This application was dismissed as withdrawn by him vide order dated 30.11.991 which is Ex.DW2/A. DW2 stated that he had filed his vakalatnama which was signed by his client Garner. He did not remember the facts being an old matter. He remembered that the applicant Garner was son of some police officers, who had approached him to file this application. Next day, he was instructed not to press the application and accordingly, he withdrew the same after appearing in the Court. Applicant Garner signed the vakalatnama in his favour in his chamber, in his presence. He deposed that he could not identify Garner as it State Vs. Upender & Ors. SC 75 of 2012 39/112 ID No. 02403R0000861996 was a very old matter. In cross examination, DW2 denied that he voluntarily refused to identify the applicant, who was present in the Court as an accused.
66. Neeraj (DW3) deposed that he was the student of LLB of Law Center - 1, Faculty of law, University of Delhi at Mandir Marg. He took admission in LLB in the year 198990 and completed his LLB in the year 1993. DW3 stated that he was unanimously elected to Central Counselor DUSU in the year 198990. In the year September 1991, preparation of Students Union were going on and the list of prospective candidates was to be finalized on 1st and 2nd September 1991. All the candidates were not available on those days and hence, 03.09.1991 was the last date for filing of nominations. DW3 testified that a meeting was held of all the prospective candidates at about noon on 03.09.1991 at Law Center 1 Mandir Marg and on that day, all the prospective candidates reached the venue of meeting. DW3 deposed that accused Dinesh was a prospective candidate. All the candidates namely Neeraj Walia, Rohit Bhandari, Rakesh Sharma, Vivek Singh, accused Dinesh and he filed nomination papers in the box at about 02:00 pm. Many other students were also present at that time. After filing the nomination papers, they all gathered in the office of Students Union, Law Center 1, as the nomination papers filed by the candidates were to be scrutinized at 03:00 pm by the Returning Officer. At about 05:00pm, on the Notice Board of Law Center 1, the scrutiny was completed and list of candidates was prepared by the Returning officer declaring them elected as unopposed. DW3 testified that after the declaration of the results, he along with all others, including accused Dinesh, remained present in the premises of Law Center 1 up till 08:00 pm. DW3 stated that accused Dinesh remained with them on 03.09.1991 from 12:00 pm till 08:00 pm and did not leave State Vs. Upender & Ors. SC 75 of 2012 40/112 ID No. 02403R0000861996 the college premises even for a single moment. DW3 placed on record Book (Ex.DW3/A) wherein his photo appears at point A and name of successful candidates mentioned on places B to B. The name of Dinesh Kumar was mentioned at page no. 2 at place C. In cross examination, DW3 denied that accused Dinesh was not with him on 03.09.1991 at Law Center 1, Mandir Marg from 1212:30 pm to 02:00 pm. He denied that he was deposing falsely at the instance of accused. He could not produce the eye of Ex.DW3/A. After three four days, he came to know that accused had been named in this case. DW3 deposed that he did not complaint to the police regarding false implication of accused Dinesh or thereafter, till today.
67. Doctor V. K. Sharma (DW4) who was earliar examined as PW22. DW4 testified that Ex.PW22/B, Ex.DW4/1 to Ex.DW4/6 were the medical papers belong to Safdarjung Hospital and might be in continuation of documents (Ex.PW22/B). In cross examination, DW4 admitted that as per record, patient had received gun shot injuries. He stated that the document (Ex.DW4/1 to Ex.DW4/6) were not prepared by him. He had no personal knowledge about these papers.
68. On closure of defence evidence, I heard arguments advanced by Sh.Wasi Ur Rehman, Addl. PP for the State and Sh. Ramesh Gupta senior counsel as well as Choudhary Sh. Ram Kishan, Sh. Rajinder Singh, Sh. Sanjeev Singh and Sh. S P. Ahluwalia counsels,and accused Surender in person and have scrutinized material on record carefully.
Submissions advanced
69. Learned Addl. PP submits that in this case, the postmortem of the dead body could not be conducted as the information regarding the death of deceased was given by legal heirs of the deceased, but police did not reach at Albega Hospital and State Vs. Upender & Ors. SC 75 of 2012 41/112 ID No. 02403R0000861996 thereafter, cremation of deceased was conducted. He submits that there is direct evidence of PW2 and PW3, who are the eyewitness of the incident and having categorically narrated the entire incident and proved the acts and roles played by each and every accused at the spot. They identified the accused persons in the Court. There is a dying declaration (Ex.PW14/A) on record and it is not the rule of law that the dying declaration of the deceased cannot form the basis of conviction. He submits that the rule requiring conviction is merely a rule of prudence. But in this case, there are other circumstances and in such circumstances the dying declaration can be admitted in evidence. He argued that the case of the prosecution has been proved beyond doubt. Learned Additional PP relied upon Khujji @ Surender Tiwari vs State of MP (1991), 3 SCC 627. In support of his submission that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on careful scrutiny thereof. He submits that on the date of incident there were election in the college, accused Upender, Gyaneshwar, Akram, Devender, Hariom, Dinesh and others had gone to the college in a jeep being outsiders and on reaching there some utterance was addressed to Rambir (deceased) by Upender, who after the incident while running away was entangled by wire and was hit with a stone by one of the boys who were chasing accused Upender. It is submitted that accused Upender was arrested near the gate of the college and a katta and four cartridges were recovered from and thereafter, Gyaneshwar, Akram, Hari Om, Dinesh were arrested at the Moti Bagh picket in a Jeep no. DDI 4310 and accused State Vs. Upender & Ors. SC 75 of 2012 42/112 ID No. 02403R0000861996 Surinder was arrested while he was going on motor cycle no. DNI2196. He submitted that conduct of all the accused persons as stated by Pradeep Kumar PW2 and Khazan singh (PW3) at the hands of accused and thereafter, surrender of accused Dinesh, Hariom and Devender and they refused to participate in the TIP reflects that all the accused persons, who had assembled together knew that the crime would be committed. They targeted the deceased, while one of them was armed with pistol and others were with knife and thereby, they caused injuries to Rambir, in prosecution of their common object and that due to the acts of the accused persons, injured Rambir expired 43 days after the incident on 16.10.1991. He submits that, all accused persons are liable to be convicted for the offence with which, they are charged.
70. On the other hand, Sh. Ramesh Gupta Ld. Senior Counsel submits that whether accused Devender is garner or garner was accused who was son of a police official is not shown. He drew attention of the Court towards contents of rukka (Ex.PW2/A). He submits that Devender r/o Kilokari is claimed to be Garner by the prosecution and is a separate person other than five accused persons. He drew attention towards the testimony of Inspector Chander Mohan (PW43) and site plan (Ex.PW43/N). In the cross examination PW43 admitted that site plan was not prepared by IO/SI Ompal (expired) in his presence. PW43 stated that Pradeep Kumar was telling IO about the site plan, when he went to the spot second time. He denied that site plan was substituted later on after death of deceased. He admitted that details about preparation of site plan were also mentioned in case diary including the marginal notes. He could not tell as to why the name of Devender as alias at point no. 7 in (Ex.PW43/N) was not mentioned in the case diary and in the State Vs. Upender & Ors. SC 75 of 2012 43/112 ID No. 02403R0000861996 case diary only Garner was mentioned. He submits that accused Devender was arrested in this case on 17.10.1991 and an application for anticipatory bail was moved on 30.11.1991. He submits that till that time, Garner was apprehending that he may not be arrested and subsequently. Anticipatory bail application moved by him was dismissed as withdrawn. IO did not mention that accused Devender @ Garner had already been arrested. Ld. Counsel submitted that IO (P43) was unable to recollect that Learned ASJ in the order dated 07.09.1991 had mentioned specifically that Garner was a different accused than Davendar and he was not aware, if Learned ASJ passed an order dated 19.09.1991 and in that order there was no mention at all that garner was also known as Davender. Order dated 07.09.1991 (Ex.PW43/DD) is a matter of record. He submits that no TIP of Garner was conducted and no identity of Garner is established. He argued that there is no independent witness to establish that Devender was known as Garner .PW43 admitted that he had not collected any independent evidence including the evidence of the villagers, students and teachers shopkeepers to establish that Devender was also known as Garner. It is submitted that there is a clear indication from the FIR and other material on record that Devender and Garner were two different persons. In absence of a cogent evidence in this regard, it cannot be said with certainty that Devender was also known as Garner. IO (PW43) has categorically deposed in the court. He admitted that he had not collected any independent evidence including the evidence of the villagers students and teachers shopkeepers to establish that Devender was also known as Garner". Firstly, In the FIR itself a definite distinction is made between "Garner" and "Devender of Kilokari as two distinct persons. Secondly, PW 2 unequivocally deposed in his first statement, on the basis of which State Vs. Upender & Ors. SC 75 of 2012 44/112 ID No. 02403R0000861996 the alleged FIR was registered, to say that Garner, Dinesh and Upendra were the persons whom he knew and the names of the remaining 7/8 persons whose names he did not know, were later known to be Devinder etc. The aspect of 'remaining' in the FIR assumes significance. However subsequently, he improved his case and changed it, indicating that Garner and Devender were the same person was not nothing but a manipulation. It might be that R. P. Nagar was posted as Inspector Special staff, Duala Kaun, during those days. PW2 admitted that he had not given the name of one of the assailants in his statement (Ex.PW 2/A) as Davender resident of Kilokari, whose particulars were mentioned in portion A to A on Ex.PW 2/A. He admitted that in his statement (Ex.PW2/A), he had not stated that the name Garner was also alias Davender.
71. Sh. Rajinder Singh, Learned Counsel argued that Khazan Singh, PW3 deposed that he was not the student of any college. As the students of his village used to study in the college, therefore, he used to go to the colleges including ARSD college. He knew deceased Rambir as he also used to belong to his village. PW3 deposed that during those days Raj Singh who belong to his village used to study in ARSD college and he used to go to meet Raj Singh as well as deceased Ram Bir. Ld. Counsel submitted that PW3 admitted that Pradeep Kumar, Ram Pal, brother of deceased Rambir and other persons from the village used to come to court. PW3 deposed that at the point from where he was climbing the stairs, the place of occurrence was not visible. The stairs did not go straight up to the first floor. He did not know how many stairs were there for reaching the first floor. PW3 deposed that he was in the middle of the stairs when he heard the sound of cries. At the place of incident, only Rambir, few persons were there who were quarreling. He deposed that State Vs. Upender & Ors. SC 75 of 2012 45/112 ID No. 02403R0000861996 Rambir had received injuries in his presence. He deposed that when Rambir received injuries, at that time Pradeep was not present there. When Rambir allegedly received injuries, at that time, none of the person who was present there at the time of incident was personally known to him. He did not know the person who gave him the knife blow. On being asked, regarding his statement dated 15.05.98, that when he tried to apprehend Devender Garner, he gave him knife blow on his left arm and on the left side of his back, he stated that he did not know the person who gave him the knife blow. PW3 stated that he knew one person by the name of Garner who was son of police officer. None of the accused was amongst that person who gave him the knife blow was present or gave any injury to Rambir in his presence. He stated that none of the accused were seen by him either in the gallery or the stairs at the time of incident. PW3 admitted that he had seen Devender, Upender, Dinesh, Inderjeet and Hari Om, when he used to visit the Court. PW3 denied that brother of deceased used to tutor him that he should take the name of aforesaid persons, as accused. PW3 stated that the police officers who used to come to the court in respect of this case, used to tutor him. PW3 admitted that IO of this case had tutored him to make statement against the accused.
72. Learned Counsel argued that incident occurred on 03.09.1991 and injured Rambir was admitted to RML hospital till 17.09.1991. On 17.09.1991, injured (deceased) was admitted to Safdarjung Hospital, Spinal Ward. As per record, deceased was discharged from Safdarjung hospital on 14.10.1991 and expired on 16.10.1991 at Albega Hospital at Gurgaon, where injured was got admitted by Ram Phal (PW14) for removal of bullet. He submitted that no postmortem on the dead body has been conducted and cause of death was not established. Dead body was State Vs. Upender & Ors. SC 75 of 2012 46/112 ID No. 02403R0000861996 already cremated without informing the police. As per medical record injured was discharged from the hospital in a satisfactory condition. Learned Defence Counsel pointed out that as per Ex.PW22/A, it appears that deceased was referred to Safdarjung hospital on 13.09.1991. He was discharged from the RML Hospital on 17.09.1991. Thereafter, an application was moved by Ramphal (PW14) brother of deceased for taking on record, certain papers issued by the doctor regarding injuries, treatment, medical tests, MRI test, which were stated to have remained in his possession. The said application was dismissed by Learned Predecessor of this Court vide order dated 12.07.2000. Those document remained on record and they were placed on record in the Statement of Doctor V. K. Sharma (DW4), who had already been examined as PW22. He deposed that he had seen the patient vide FC no. 16652/91 which is Ex. PW22/A on 30.09.1991, who was referred to RML hospital with bullet injury in the spinal cord with complete paraplegia. PW22 advised admission in the spinal ward. At the time of admission, injury was 25 days old. This statement implies that deceased was admitted to Safdarjung hospital on 30.09.1991. DW4 placed on record medical papers belonging to Safdarjung Hospital pertaining to deceased which are Ex. DW4/1 to Ex. DW4/6. Attention of Court was drawn towards these documents.
73. Learned Counsel argued that Ex.PW18/A i.e. discharge summary from RML hospital shows that patient was admitted on 03.09.1991 and discharged on 17.09.1991. It is argued that as per medical record, it has not been established beyond doubt that deceased was admitted in the Safdarjung hospital on 20.09.1991. He submitted that PW41 deposed that he has written "fit for statement" on the MLC of deceased on the instructions of some senior doctor. He has neither treated the State Vs. Upender & Ors. SC 75 of 2012 47/112 ID No. 02403R0000861996 patient nor seen the patient or had given the treatment to the deceased. He submits that recovery of weapon is doubtful and conduct of PW2, who went home, did not inform anybody and did not visit his friend in the Hospital, is unnatural. Learned Counsel urged that presence of PW2 and PW3 at the spot is full of doubt. They were chance witness. They were not studying in the same college. It is given to understand that they were mere chance witness and that they were allegedly present at the place of incident. PW3 has not supported the case of prosecution and was cross examined by Learned Addl. PP. It is argued that PW3 specifically deposed that Pradeep was not present at the time of incident and they knew each other. Pradeep (PW2) and Khazan Singh (PW2) were the coaccused in case u/s 302/207 IPC. Pradeep (PW2), who initially denied any involvement in any case, but later on, admitted that he was involved in several cases u/s 307/325/302 etc. Both of them are, admittedly involved in many cases. Ld. Counsel submits that delay in the cross examination of PW3 was not on the part of defence. PW3 was arrested and produced in the Court from JC from another case. Rajesh (PW5) deposed that he took the injured to the hospital. In the history to the doctor, the name of assailant was not given. Admittedly, injured was conscious but there is nothing on record that he disclosed the name of assailant to PW5.
74. Ld. Counsel pointed out that PW43 admitted that Prashant Nagar was interrogated in connection with this case because his name had surfaced in a quarrel which took place before the incident. This incident took place about two hours prior to the incident. No DD entry or information was recorded. He did not remember the specific date on which Prashant Nagar was interrogated. He came to know during investigation that the name of father of Prashant Nagar was Raj Pal Nagar and was State Vs. Upender & Ors. SC 75 of 2012 48/112 ID No. 02403R0000861996 known to him and was his colleague. As far as he recollected, he received communication from DCP office to the effect that Prashant Nagar was feeling insecure because of this incident and had requested for security. Ld. Counsel drew attention of Court towards copy of letter (Ex. PW43/DJ) written by DCP South West to DCP East District. Witness stated that, this was the same letter, which he had received from DCP. As regards, copy of letter (Ex.PW43/DK) written by Prashant, witness stated that he had received the same. As regards, copy of nomination form (Ex.PW43/DL) of Prashant Nagar, IO (PW43) admitted that this fact had also surfaced during investigation.
75. Ld. Counsel submits that accused persons are facing trial for the last 2021 years which is more than life sentence. It is not only a case based on false foundation but, based on an evidence of two witnesses, who were having a record of criminal antecedents and their motives can be inferred. PW Pradeep can safely be said that he was an introduced witness. He submits that it is the case where benefit must be given to the accused. Ld. Counsel argued that, L. K. Sardana (DW2) testified and proved (Ex.PW43/DN, Ex DW2/A) and the vakalatnama filed on behalf of his client Garner who was the son of a police officer and had approached him to file the bail application. He denied suggestion given by Ld. Addl. PP in cross examination that he voluntarily refused to identify the applicant as accused present in court. PW3 stated that some person used to say that Garner was son of a police officer. He knew one person by name of Garner who was son of the police officer and used to do "Dadagiri" the said Garner was not present in court today. He submitted that the name of Devender is not at all mentioned in whole of the statement of the witness accept in the end of the statement (Ex.PW2/DA). PW2 State Vs. Upender & Ors. SC 75 of 2012 49/112 ID No. 02403R0000861996 has clearly deposed that he had given the name of only three four persons in his statement as he knew them by name later on he came to know the name of other accused. He did not know the name of the other accused on the same day. Learned Counsel submits that IO/PW43 was cross examined on the point of establishing the identity of accused Devender. He deposed that there was no question of getting TIP conducted on 17.10.1991 as on 13.10.1991 complainant had come to them and had seen the accused persons namely Devender @ Garner and Dinesh and had stated they were not the snatcher of the motorcycle. In none of the statements recorded U/S 161 Cr.P.C, the name of Devender or Devender @ Garner was mentioned. PW2 had been confronted during cross examination, he stated in his statement to the police that accused Davender Garner had given knife blow to Rambir confronted with statement (Ex.PW2/DA), wherein the name of the assailant has been mentioned only as Garner. He stated in his statement to the police that Devineder Garner gave knife blow to Rambir on his stomach. He was confronted with statement (Ex.PW2/DA) where it was mentioned that garner gave a knife blow. In his statement to the police, he had given the name of assailant as Devender Garner and not Garner. He was again confronted with statement (Ex.PW2/DA) where name of assailant was mentioned as Garner only. Sh. Gupta Ld. Senior Counsel submitted that no serious attempt was made by the IO to establish that Devender was also known by the name of Garner.
76. Choudhary Ram Kishan, Learned Counsel argued that Pradeep Kumar (PW2) admittedly was involved in number of cases of heinous nature and he being a covillager and coassociate of injured Rambir was highly interested. He argued that the evidence given in examination in chief and in cross examination is self State Vs. Upender & Ors. SC 75 of 2012 50/112 ID No. 02403R0000861996 contradictory, materially improved and as such, unreliable and unworthy of credit. Pradeep Kumar has stated in his examination in chief that Accused Hari Om Meanwhile shouted "Upender Saale Ko Goli Maar De". He submitted that there is no such averment in his statement Ex. PW2/A. the witness has been duly confronted with his statement Ex.PW2/A where neither the name of the accused is mentioned as the person giving any exhortation by saying "Uppender Saale Ko Goli Maar De". The witness has also stated in examination in chief, that one of the person has stated "Bachne na pai sale ko jaan se maar do". This part has also been duly confronted with the statement (Ex.PW2/A) where it is not so recorded. The witness has also admitted in the cross examination that he did not give the name of Hari Om and others in his statement (Ex.PW2/A) nor he knew them from before and, therefore, he denied the contents recorded at the end of (Ex.PW2/A) wherein some names have been inserted by the Investigating Officer of his own.
77. Ld. Counsel argued that witness has intentionally and deliberately made material improvement to give false evidence against Hari Om, though, he never knew the name of Hari Om nor he had nay acquaintance and the names in portion mark 'X' to'X' in statement (Ex.PW2/A) were never given by him in his statement (Ex.PW2/A) or his supplementary statement. He argued that the character, conduct and antecedents of this witness as brought on record clearly prove his involvement in criminal cases with other witnesses including the injured. The witness has tried to conceal his involvement in numerous criminal cases and of being a bad character of police station Najafgarh, but when subjected to grilling examination and confrontation with particular cases he had no option but to admit the same PW2 did not inform the police nor to any one in the transit while allegedly travelling in State Vs. Upender & Ors. SC 75 of 2012 51/112 ID No. 02403R0000861996 D.T.C. bus from Dhaula Kuan to his village Bharthal. This witness also did not help the injured in removing to the hospital, though injured was said to be a close friend.
78. Ld. Counsel submitted that Rajesh Kumar (PW5) who was alleged to have taken the injured/deceased to Hospital, has not stated that he saw Pradeep Kumar at the spot from where he lifted the injured or in the premises of the college or anywhere else outside the college and other witnesses i.e. Umed Singh Rana (PW4), Partap Singh(PW7), Hari ram (PW12) Chowkidar, Narotam Lal (PW24), S.C. Krishnani (PW25), Constable Devender Singh(PW11), Head Constable Surender Singh (PW21), who happened to be within the premises of the College or near the Gate of the Colelge did not see Pradeep Kumar at the spot or even thereafter at any time. No other witness has stated that Pradeep was seen and found at the spot except the police official/I.O. Inspector Chander Mohan (PW43), who has stated that he saw Pradeep at 03.45/04.00 PM at spot when he reached there second time at the spot and this time factor is materially contradicted by the evidence of Pradeep that he has boarded a DTC Bus at 03.00 P.M. for his village Bharthal from Dhaula Kuan Bus Stand and never returned back on that day. The proceedings carried out at the spot and the memos prepared by the IO bears the signatures of this witness which show that documents are fabricated as Pradeeep Kumar was not there according to him.
79. Ld. Counsel argued that it needed no further elaboration of the evidence given by Pradeep, who as per his own admission, never knew accused Hari Om, nor he gave the name or particulars of the accused at any time and that his improved statement in court has been duly confronted with his statement (Ex.PW2/A). Evidence given by this witness, is therefore unreliable and no reliance can be placed State Vs. Upender & Ors. SC 75 of 2012 52/112 ID No. 02403R0000861996 on his evidence and even his presence at spot has not been proved. He argued that correctness and authenticity of the alleged statement of Rambir is doubtful and there is suspicion about its existence on 20.09.1991. IO fabricated the said statement of Rambir, at a later stage to create false evidence. Hence, evidence given by Ram Phal is unreliable and polluted with falsehood. The medical reports of Rambir are full of suspicions and doubts as Rambir was taken to Safdarjung Hospital without discharge from R.M.L. Hospital and it was Ram Phal who was instrumental in getting the medical reports fabricated. He submitted that Ram Phal is not a witness of facts. It requires no further detailed discussion vizaviz accused Hari Om.
80. It is argued that Ram Phal (PW14) is the brother of the injured/deceased, a highly interested witness in the success of the case, who was a head Constable in Delhi Police and was conversant with the procedure. He caused the disappearance of evidence of the commission of the offence by not informing the police about the death of his brother and cremated the dead body without postmortem. Ram Phal PW14 reached the Hospital (R.M.L.) in the evening after getting the information. He remained with his brother and continued to take him from one hospital to another. There is no evidence of this witness that if he caused any enquiry personally from the injured as to how he received injuries and at whose hands or who were the assailants. Conduct of this witness (PW14) and Hari is against the natural course of events that a relation or a father would try to find out from the injured as to how the incident took place. In this case, there is no such evidence that Ramphal or his father Hari Singh made an enquiries from the injured till his death.
81. Next, it is submitted that Inspector Chander Mohan (PW43)/ I.O. got recorded the statement of Rambir Singh (deceased) U/s 161 Cr. P.C. through S.I. State Vs. Upender & Ors. SC 75 of 2012 53/112 ID No. 02403R0000861996 Om Pal Singh, (Ex. PW43/A). In this statement there is no reference that his brother Ram Phal was present at the time of alleged recording of the said statement or that he also gave a written statement. Inspector Chander Mohan/IO admitted in cross examination admitted that no record of the departure or arrival of the staff was entered in the daily diary on 20.9.91 nor any such copy has been placed or record. No time is given of recording the statement of Rambir nor the time is mentioned, as to when the doctor was consulted on 20.9.91. He has personally not collected any evidence nor recorded any statement under his own hand writing. He deposed that it was done under his supervision by S.I. Om Pal Singh.(deceased). Learned Counsel argued that there is no evidence that this accused persons had any enmity or Motive against the deceased or his family members. There is no evidence that accused persons were students of A.R.S.D college and that he was in any manner interested in Prashant Nagar, who is reported to be the bone of contention as he was prevented from filling his nomination for the election of the college. He argued that there is no satisfactory evidence that accused were connected in any manner with the Motor Cycle or the Jeep alleged to have been seen by some witnesses outside the college. Ld. Counsel for accused Hari Om submitted that number of witnesses examined in this case namely, Umed Rana (PW4), Rajesh Kumar (PW5), Partap Singh (PW7), constable Devender Singh (PW11), Hari ram Chowkidar (PW12), Constable Surender (PW21), Constable Hari Om (PW 20), who happened to be inside the premises of the college or at near the gate of the college, have not stated any incriminating circumstances against Hari Om that they saw this accused coming out or fleeing away from the college. That the description nor particulars of Hari Om is not mentioned in the FIR nor any role is described State Vs. Upender & Ors. SC 75 of 2012 54/112 ID No. 02403R0000861996 therein. There could be number of persons by the name of Hari Om, hence, no evidence that the accused was involved in the said incident. That accused was arrested on 17.10.1991 and there is no evidence from the investigating officer that he had ever tried to go to the residence of the accused or that processes have been got issued against him from the court, for his arrest. That the accused (Hari Om) is innocent and has never been involved in any other criminal case or untoward incident and he never maintained any relation with any unsocial element or the criminals.
82. Sh. S. P. Ahluwalia, Ld. Defence counsel for accused Dinesh submitted that it is not case under section 302 IPC , since there is no opinion regarding cause of death and no postmortem report is on record. H.C Ram Phal (PW14) brother of the deceased did not inform about the death of Rambir on 16.1019.91, who was cremated on the same day.. It is submitted that Rambir deceased remained alive from 03.09.91 and 16.10.91 which is a lengthy period. There is no evidence to suggest that death of Rambir was not because of medical negligence by Doctors of Albega Hospital. Medical report of RML Hospital and Safdarjung Hospital pertaining to Rambir deceased do not indicate that the condition of the patient had turned serious at any point of time which could have proved fatal. There is no evidence that injuries caused to Rambir deceased were direct result of his death. It is argued that there prosecution has not been able to prove any motive behind the incident as there is not even a whisper of evidence led by the prosecution to prove the motive behind the incident.. There is no evidence that there was any rivalry between the students for which accused persons could have involved in the death of Rambir.
State Vs. Upender & Ors. SC 75 of 2012 55/112
ID No. 02403R0000861996
83. It is argued that name of Prashant Nagar appeared during investigation, being the sole person having enmity with Rambir but no explanation to the effect as to why Prashant Nagar has neither been cited as an accused or witnesses in this case. The omission of this fact demolishes the case of the prosecution. Ld. Counsel submitted that there is no evidence to prove common object or common intention in between all the accused and there is no evidence that all the accused persons knew each other hence no case under section 147/149 IPC is made out.. It is submitted that so called statement of Rambir (deceased) dated 20.09.91 is a fabricated document and cannot be relied upon because the prosecution has examined Rajesh Kumar, the first person, who came in contact of deceased Rambir and took him to hospital after the incident, but he did not say anything being told to him by the Rambir deceased about, the assailants despite the fact that he was conscious. The omission of this fact is fatal to the case of prosecution. PW 23, Dr. Mukesh has stated in the court that the deceased was conscious and oriented at the time of admission in Hospital. The non examination of deceased on 03.09.91 is also fatal to the case of prosecution and suggests manipulation of record. Statement attributed on the part of Rambir was not relied by the prosecution at the time of filing the charge sheet. This statement was introduced for the first time during examination of the witness i.e. after the lapse of the period of about 10 years, when the I.O. was under examination on 04.05.2000, he argued that, this statement is otherwise hit by Section 162 Cr.P.C. allegedly having been signed by Rambir. There is no reference of the statement in the case diary and Chander Mohan (PW43) admitted during crossexamination, that there was no reference in the case diary dated 20.09.91, regarding the statement. This statement is not adduced or witnessed by the Doctor. There is no evidence that State Vs. Upender & Ors. SC 75 of 2012 56/112 ID No. 02403R0000861996 Rambir was fit for statement at the time of statement. There is no endorsement of any person that injured Rambir signed this statement. No entry in the Roznamacha proving recording the statement of Rambir. Case diary dated 20.09.91 unsigned by the IO. It does not contain book number of serial number of the case diary. There is no evidence to prove that Rambir told about the details of the incident to any of the witnesses examined by the prosecution during trial. Even he did not make any statement to the person allegedly present at the spot namely PW5 Rajesh Kumar, who took him to the hospital.
84. Ld. Counsel submitted that none of the witness including Khajan Singh (PW3) and Rajesh Kumar (PW5) stated in their respective deposition either before the police or the court that they had seen the witness Pradeep Kumar (PW2) at college or at hospital on the day of incident, which clearly suggest that this witness has been planted by the Police . He is having criminal background and is involved in 7 heinous offences, like murder, attempt to murder etc. He argued that according the settled law, statement of such a witness has to be weighed with great caution. He made material improvements on various points rendering his statement absolutely incredible. The witness PW2 Pradeep in his deposition has stated that he left the spot at about 03:00 pm on the day of incident and reached his home at 05:00 pm. The conduct of the witness is highly improbable, as no one will leave a person unattended in an injured condition, to whom he is claiming to be a close friend. He did not accompany the injured since deceased to the hospital for getting him in medical aid. He did not inform any of the family members of Rambir; although resident of the same village. He did not go to the hospital in order to see the condition of Rambir at any point of time. None of the prosecution witness has stated State Vs. Upender & Ors. SC 75 of 2012 57/112 ID No. 02403R0000861996 about his presence at the spot. Ld. Counsel submitted that Statement of PW Khazan Singh (PW3) is highly unreliable. He submits that in examination in chief, he did not attribute any role on the part of the Dinesh. His cross examination took place after about Six months as he was confined in a criminal case. He demolished the prosecution case during crossexamination. Delay in his cross examination, cannot at all be attributed to the accused persons as the witness was confined in judicial custody.
85. Shri Sanjeev Singh, Ld. Counsel for accused Gyaneshwar Sinha and Akram Jameel argued that they have not been named in the FIR, based on statement of PW2 Pradeep Kumar (complainant). In the said statement, PW2 named seven persons and he did not state that any other person was also involved in the incident. He had not named accused Gyaneshwar Sinha and Akram Jameel in ExPW2/A. Even on the endorsement (Ex.PW43/M) on the Rukka (ExPW2/A) names of accused Gyaneshwar Sinha and Akram Jameel having been apprehended at 02.15 pm at Moti Bagh Chowk in a jeep has not been mentioned though the time of recording of the Rukka is mentioned as 04:00 PM on 03.09.1991. He submits that a supplementary statement dated 16.10.1991 (Ex.PW21/DB) of Pradeep Kumar (PW2). PW2 had not named accused Gyaneshwar Sinha and Akram Jameel. Prosecution PW3 Khajan Singh alleged (injured witness) has also not named accused Gyaneshwar Sinha and Akram Jameel either in his examination in chief or crossexamination. As per the case of prosecution statement of deceased Rambir Ex.PW14/A was also recorded on 20.09.1991 while he was admitted in Safdurjung Hospital. Even deceased Rambir in his statement Ex PW14/A has not named accused Gyaneshwar Sinha and Akram Jameel.
State Vs. Upender & Ors. SC 75 of 2012 58/112
ID No. 02403R0000861996
86. Pradeep Kumar (PW2) made improvements in his statement by naming Gyaneshwar Prasad as one of the accused without assigning any role to him. On being cross examined, he stated that he had not given any other names in his complaint. He was confronted with complaint (Ex.PW2/A) He admitted that he did not give the name of accused Gyaneshwar in his complaint. He further stated that he came to know the name of accused Gyaneshwar when he was apprehended and he identified Gyaneshwar before the police and at that time he got to know the name of Gyaneshwar. He further stated that he identified accused Gyaneshwar in the Police Station and only at that time he got to know the name of the accused as Gyaneshwar Sinha. Pradeep Kumar (PW2) while being cross examined on behalf of accused Dinesh, stated that from the college, after the proceedings by the police. He went to his house. He has throughout in his cross examination on behalf of other accused persons maintained the stand that he did not go to the Police Station on that day and from the college he took a bus at about 3.00 pm and reached his home at 5.00 pm. Therefore different stands taken by the said witness on identification of accused Gyaneshwar makes his statement untrustworthy on this account. As far as accused Akram Jameel is concerned even Pradeep Kumar (PW2) has not identified him.
87. Accused Surinder, who argued in person, stated that Pradeep Kumar (PW2) has not named him. He has not stated that he was present at the spot . He has not stated the role played by Surinder. He did not identify the accused Surinder . He had admitted that he had not named other person and had named only three accused persons. In the Court, he wrongly identified accused accused Akram Jamil as Gosian. He submits that statement of Ramphal (PW14) that they had had informed the police or that Dr. Deepak Vashishth had accepted the responsibility of informing State Vs. Upender & Ors. SC 75 of 2012 59/112 ID No. 02403R0000861996 the police is a lie. He stated that PW14 and PW39 knew that it was important to inform the police and conducting of postmortem was also important but despite that they had not informed the police.
88. In support of their submissions, Ld. Counsel relied upon following cases:
Kali Ram vs State of Himachal Pradesh 1973 SCC 808; Sharad Birdhichand vs State of Maharashtra 1984 (4) SCC 116; Ashish Batham vs State of M.P.2002 SCC (Cri)1718; State of Goa vs Pandurag Mohite 2009 (1) AD (Cri) SC 523; Magesh &ors. etc vs State of Karnataka 2010 (IV) AD (Cri) SC 33 Rehmat Ali Vs. State of Haryana 1997 Cri L J, 764, Jagir Singh Vs. Delhi State 1975 SC Cases (Crl) 129;
Chand Singh and Ram Naraian and another vs State 1991, JCC, 116 ; C. Maghesh and ors. Vs state of Karnataka 2010 (2) JCC 1429; Chander Prakash @ Chander vs State of Delhi 1995 JCC 665; Gulab Singh vs State 1995 JCC, 479; Maliapatisi vaiah vs Sub Divisional officer, Guntur 2007 VAD (CR) SC 45; State of Maharashtra Vs. Raju Bahaskar Potphode, 2007 (3) JCC 2298 SC;State of UP Vs. Mushtaq Alam, 2007 (3) JCC 2203 SC.
89. After hearing the submissions made at bar, following points emerge for determination in this case :
(i) What is the cause of death of Rambir (deceased) and whether it is a case of homicide?
(ii) Whether presence of Pradeep Kumar (PW2), at the place of occurrence is doubtful and his conduct, unnatural?
(iii) Whether testimony of Khazan Singh (PW3), can be considered as credible?
(iv) Relevance and effect of other material witnesses namely Umed Rana, Rajesh State Vs. Upender & Ors. SC 75 of 2012 60/112 ID No. 02403R0000861996 Kumar and Pratap Singh?
(v) Whether Rambir (deceased) was 'fit for statement' and, if so, whether his statement was recorded on 20.09.1991 in Safdarjung hospital by the IO (PW43) in the presene of PW14 and what value can be attached to it?
(vi) Whether there are manipulations in the FIR?
(vii) Whether recovery of pistol and four cartridges were effected from accused
Upender at the spot?
(viii) Whether the story of the prosecution regarding snatching of motorcycle no.
DL1S3909 belonging to Adil Ahmed Khan is baseless?
(ix) Whether Accused Gyaneshwar Sinha, Akram Jameel were running away from the spot on Zeep No. DDV4310 and Surender Singh with a motorcycle No. DMI2196 were apprehended at Moti Bagh Chowk?
(x) Whether genesis of quarrel suppressed by the prosecution?
(xi) Whether all the accused persons were present in the ARSD College at the time of alleged incident and were members of a unlawful assembly?
(xii) Whether accused persons in prosecution of their common object caused injuries with a knife and a firearm to the injured Rambir in the manner alleged?
Legal position
90. Before embarking on the discussion of the evidence, the crux of relevant legal position may be noted. Cardinal principle which is always kept in view in our system of administration of justice in a criminal case is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the production of evidence as may show him to be guilty of the offence with which he is State Vs. Upender & Ors. SC 75 of 2012 61/112 ID No. 02403R0000861996 charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relives itself of that burden, the Courts cannot record a finding of the guilty of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is, not positively proved to be true, the accused would be entitled to acquittal.
91. The criminal trial concern itself with the question ,as to whether accused arraigned at the trial are guilty of the crime with which , they are charged and the Court has to test the evidence for its inherent consistency and the inherent probability of the story. Court has to scrutinize the evidence when there are testimonies of a large number of witnesses testifying before the Court, as in this case. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst the witnesses.
92. It is settled law that the evidence of a hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Evidence of injured witness, or of a close relation of the injured or deceased is entitled to weight. Such witnesses would not ordinarily implicate an innocent person so as to allow the guilty person to escape, but, his evidence must be scrutinized by applying the test of probability. Testimony of injured witness can be relied upon unless there are grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
93. Court has to consider the manner of giving evidence, surrounding State Vs. Upender & Ors. SC 75 of 2012 62/112 ID No. 02403R0000861996 circumstances, probabilities, motive for giving true or false evidence, intrinsic merit of the evidence, how it stands with other evidence adduced. Reliability of witnesses depends upon the accuracy of the witnesses, original observations of the evidence which he described; correctness and extent of what he remembers and his veracity. Court has to consider whether, in the circumstances of the case, it is possible to believe his presence at the scene and whether there is anything inherently improbable or unreliable in his evidence. His conduct during occurrence and subsequently also could be examined. Discrepancies which relate to material points, should not be lightly glossed over but must be assessed seriously. Trifling discrepancies must be ignored as natural discrepancies among honest witnesses. The broad facts of the case and not minor details have to be considered in weighing the evidence. Sometimes contradictions, embellishments, discrepancies can lend assurance to the credibility of prosecution case. Court has to weigh the evidence carefully in measuring its worth or worthlessness.
Discussion of evidence
94. Now, I advert to the evaluation of evidence on the touch stone of the position of law, noted above.
Cause of death not ascertained
95. First of all, I shall address to the question, whether prosecution has proved beyond doubt, that it is a case of homicide? Prosecution had to establish beyond reasonable doubt a corelation between injury sustained by Rambir in the alleged incident which took place on 03.09.1991 at ARSD college with his death, which took place 43 days later. The deceased is said to have expired at Albega Hospital on 16.10.1991 due to cardio respiratory arrest. However, the body of the deceased was State Vs. Upender & Ors. SC 75 of 2012 63/112 ID No. 02403R0000861996 cremated by the family members on 16.10.91 itself without informing the police and without undertaking any postmortem. Ramphal(PW14), brother of the deceased, who was a Head Constable in Delhi Police, admitted that he did not inform any authority regarding the death of his brother and did not even take death certificate as Dr.Vashisht had taken responsibility. He further deposed that Police officials had questioned him that why the dead body was cremated as the dead body was required for the purpose of postmortem. He replied that Dr. Vashisht has already taken responsibility to inform the police. It was suggested to PW14 that due to the negligence on the part of Dr. Vashisht, his and his family members, Rambir had expired and to save themselves, he had not informed the police for conducting postmortem of the deceased.
96. Information certificate(Ex.PW6/B) prepared by the said Dr. Vashisht mentions the cause of death as "acute cardio respiratory arrest due to Bronchio Pneumonia following gunshot bullet injury along with traumatic paraphaegia D1-D2". Dr. Vashishth has not appeared in the witness box. It was suggested to PW6, that (Ex.PW6/A and Ex.PW6/B) were manipulated and prepared at the behest of family members of deceased. Doctor who referred the deceased to the Gurgaon hospital has not been examined. This same doctor opined the cause of death vide (Ex.PW6/B). Significantly, PW6 admitted that there could be a case of Bronco Pneumonia without any injury on the person. Thus, the exact cause of death of the deceased has not been established. It cannot be conclusively held that death of Rambir was due to the injury allegedly sustained by him on 03.09.1991. The possibility of the death having been due any other cause or due to the negligence of Albega Hospital cannot be ruled out. While it is true that, the postmortem report by State Vs. Upender & Ors. SC 75 of 2012 64/112 ID No. 02403R0000861996 itself is not a substantive place of evidence but postmortem report and the evidence of doctor conducting postmortem can by no means be ascribed to be insignificant. In this case, it stands established that no postmortem could be conducted due to lapse on the part of relatives of deceased. Therefore, it cannot be held with certainty that injury inflicted was sufficient to cause death in the ordinary course of nature. Information about the death of deceased not funished by relatives; impartant evidence destroyed
97. No information about the death of Rambir (deceased) on 16.10.1991, by the relative of deceased was furnished due to which no postmortem could be conducted, therefore, the alleged embedded bullet could not be taken out from the body of deceased before his cremation. It has not been proved beyond doubt that bullet was actually embedded in the body of Rambir at the time of his death. Burnt bullet allegedly taken out of ashes on the next day, has not been tallied with the alleged recovered pistol.
98. Ramphal (PW14) deposed that at the time of admission of brother in the said hospital Dr. Deepak Vashist told him that he would inform Gurgaon Police regarding the admitting to Rambir in this hospital and on 16.10.1991 when his brother expired in the said hospital, in the morning. According to him, Doctor Vashist prepared three copies of death report and told him that one copy was to be given to the concerned police station and will inform to the police and afterwards he could not inform to the police as they were not in a proper state of mind due to the death of his brother Rambir. He stated that due to hue and cry in the family and their relation, he did not feel it fit to inform the police for getting the postmortem conducted. He testified that police officials questioned him that why the dead body was cremated as the dead body was required for the purpose of postmortem. He State Vs. Upender & Ors. SC 75 of 2012 65/112 ID No. 02403R0000861996 replied that Dr. Vashishth had already taken the responsibility to inform the police. So, he did not inform the police. Hari Singh (PW30) deposed that in the Albega hospital, doctor told that he would inform to the police and he prepared three papers and one paper was handed over to them and doctor told them that if anybody obstruct them or stopped them, they should show the said paper to the concerned person. Hari Singh (PW30) testified that Dr. Dixit who was practicing in Albega Hospital Gurgaon took the responsibility of informing the police regarding his admission in his hospital because of that he did not inform to the police.
99. According to Karan Singh (PW27) on 18.10.1991, one burnt cartridge was taken out from the ashes of deceased and same was handed over to the police. Police took the same into possession vide memo Ex.PW13/A. In cross examination, PW27 stated that he got training in NCC. He admitted that any metal piece could be of the shape mentioned in (Ex.PW13/1). On being asked, on what basis, he stated that Ex.PW13/1 was the bullet, witness stated that the deceased died because of bullet (Ex.PW13/1) and that is why he was saying that it was a bullet. He had not seen the bullet inside the body of deceased. He had not seen the deceased before his death. He had not seen the treatment card or any other document. According to PW27, he had no personal knowledge whether Ex.PW13/1 was the bullet or not. Bal Kishan (PW29) stated that no sketch of the bullet Ex.PW13/A was prepared. He had not put any mark of identification on Ex.PW13/1 and on Ex.PW13/2. PW29 stated that the police officials were standing on the way and waiting for them. They went on foot. The police officials had gone on their jeep. This witness stated that the bullet shown to him after taking out from the envelope was not a cylindrical object. The bullet shown to him was of a smaller size and the bullet recovered from the ashes was of State Vs. Upender & Ors. SC 75 of 2012 66/112 ID No. 02403R0000861996 bigger size. Thus, it has not been established that the material piece which was recovered was actually a bullet or not. As per the FSL report Ex. PW47/A, the ballistic expert Sh. Rup Singh (PW47 deposed that a definite opinion could not be given as the bullet was badly burnt. Thus, it has not been established whether the so called bullet recovered from the ashes of the victim had any link with the alleged countrymade pistol. Relatives of the deceased namely, Ramphal (PW14) and Hari Singh (PW30) failed to inform the police about the death of Rambir in Albega hospital on 16.10.1991. As a result of which, neither postmortem on the dead body could be conducted nor the alleged embedded bullet which was in the body of the deceased, could be extracted in intact condition. Evidence on record clearly indicated that since dead body was cremated on the next day, only then, police reached at the spot and due to lapse on the part of the relatives of the deceased in not furnishing the timely information about the death of the victim to the police, important evidence was destroyed and, therefore, true facts could not be placed before the Court.
Complainant (PW2); an unreliable witness whosse presence at place of of occurrence is doubtful
100. Story narrated by PW 2 in returning from his college and stopping at Dhaula Kuan midway his home; and then going to south campus for 'drinking water' where he allegedly witnessed the scene of the crime, does not seems to be convincing. Pradeep Kumar (PW2) has tried to explain his presence at the spot. As per FIR, he stated that Today after enquiring about his results of B.A. first year from Aurobindo College, he was going to his residence via Dhaula Kuan by bus. After getting down from the bus at about 2 pm, he came to ARSD College for drinking water. After taking water, he saw upwards at the first floor where he noticed Rambir Singh s/o State Vs. Upender & Ors. SC 75 of 2012 67/112 ID No. 02403R0000861996 Hari Singh of his village. On seeing him, he went there where Rambir was talking with another boy. It needs to be examined as to whether PW2 was a student having completed B.A first year at Aurobindo college and whether he will opt for a longer route for going to his residence via Dhaula Kuan by breaking journey particularly when buses were directly available from Aurobindo college to Najafgarh. These questions need to be gone into test his veracity and credibility of the claim regarding his presence at ARSD college. In his deposition before the court, he gave contradictory versions, when he found himself in difficult situation, to sustain his falsehood.
101. PW2 deposed that on that day he was waiting for his friend namely Kapur Singh Dagar of vill. Malik pur, who was a student of Aurbindo College. He did not visit Aurobindo college on that day. He had come from his village. On that day and was waiting for U special bus, which used to come at 2.15 PM in front of ARSD college, from where he was to go to Najafgarh with Kapur singh Dagar etc. PW2 admitted that Najafgarh was nearer to his village, in comparison to Dhaula Kuan. PW2 stated that whenever he went to his college, while coming back to his house, he never used to come back always through ARSD College. Some times, he used to come back through ARSD College. He had also not fixed any appointment with him to meet him in the afternoon. On that day, he had not specifically gone to ARSD College to meet Rambir specifically. He met him in the college otherwise. He had gone to ARSD college on the day of the incident to meet the other boy who belong to his village to enquire from him whether he would accompany him to the village by bus. PW2 himself admitted that he had not gone to Aurobindo College and was in fact coming back to his village. His version of coming to ARSD college to meet a State Vs. Upender & Ors. SC 75 of 2012 68/112 ID No. 02403R0000861996 friend to accompany back to village by bus apparently seems false and unconvincing. There is no satisfactory explanation for his presence at the place of occurrence.
102. Regarding being a student having completed first year in Aurobindo College and visit to ARSD college, different versions given by him are inconsistent. PW2 deposed that after going through his result and was going to Dhaula Kuan as the bus was to terminate there. After sometime, he entered in ARSD College to drink water and meet another boy, student of the same college and also to enquire as to whether he would accompany him to village by the bus, the timing of which was 3.00 pm. On 03.09.1991, when he had gone to the college, he could not know the result as the same was not declared. Later on the result was declared and he could not qualify. Thereafter, he left studies. He had not joined my studies in the same academic year. He had taken admission in Aurobindo College in the year 1991. He had taken admission in the aforesaid college in the month of June or July. He had taken admission in the first year. He had gone to the college in September, 1991 in order to see whether he had got admission in the college or not. He had only stated to the police that he had gone to the college to see the result. PW2 deposed that he had himself filled up the form for admission in Aurobindo College. He did not remember when he filled up the admission form. Before filling up the form for admission, he never visited Aurobindo College. He had not filled up the form for admission in ARSD College. He had entered few minutes before the incident in the college. The entire incident happened within 57 minutes.
103. From the above testimony, it seems highly doubtful that PW2 was a student of first year at Aurobindo College or that as late as in the month of September he State Vs. Upender & Ors. SC 75 of 2012 69/112 ID No. 02403R0000861996 would have gone to see the result of first year. Evidence on record also indicates that PW2 was close to the family of the deceased and admittedly had been visiting the court to watch the proceedings in the case and further his reaching the spot just at the time when the incident allegedly took place does not appeals to common issue. Pradeep Kumar (PW2) who has tried to portray as an 'eye witness' in this case, is an unreliable witness, having questionable antecedents and character, with several heinous criminal cases registered against him in various police stations in Delhi and Gurgaon. Though, initially he showed ignorance about various serious criminal cases against him, but when he was confronted with details, he admitted that he was arrested and was facing trial in several serious criminal offences he admits to the same, though only after giving misleading and false answers several times. He deposed that he did not know if he was the 'BC' (bad character) in his area i.e. police station Najaf Garh. Before 1991, he was never arrested in any case. He did not remember if he was arrested in case FIR No. 113/87 PS Najaf Garh u/s 324/34 IPC. He do not remember if he had visited the court in the year 1987 or 1988 in connection with the aforesaid FIR. He did not know whether he was acquitted in the aforesaid case in the year 1994. He, then, voluntarily stated that he was acquitted. Evidently, the witness was trying to feign ignorance and intentionally hiding a fact from the court, which he must have known. It is unimaginable that he would not remember if a case was registered against him and whether he had attended court regarding the same. After categorically denying that he did not remember, eventually he admitted that he was acquitted in the same.
104. Pradeep Kumar (PW2) further deposed that now a days, he was not facing trial in any case. He admitted that in the year 1990 he was arrested in a case u/s State Vs. Upender & Ors. SC 75 of 2012 70/112 ID No. 02403R0000861996 324/34 IPC at PS Najafgarh was also acquitted in the aforesaid case but he did not know the date of acquittal. Therefore, he admitted that he was arrested in a case u/s 326/34 IPC in the year 1990 at PS Tilak Marg. In the aforesaid case the name of the other accused was Gopi. He did not know if the said Gopi was also known by the name of Umed Rana (PW4). He belonged to village Bijwasan. He then stated, that the aforesaid case had not been decided till today. Clearly, the witness again tried to make a false statement to mislead the court and deposed that he was not facing trial in any case but later on, when confronted with details of yet another case, he admitted that the case registered at PS Tilak Marg was pending trial. PW2 therefore, admitted that he was arrested in a case u/s 307/324/34 IPC and name of other accused was Pratap Singh, who belong to his village. PW2 admitted that he was arrested in a case u/s 323/506/427/379/34 IPC PS Sadar Gurgaon. He did not remember if he was arrested in in case u/s 385/506/34 IPC. He admitted that he was arrested in case u/s 302/506/120B PS R. K. Puram. He had already been acquitted in the aforesaid case. He admitted that in the aforesaid case he remained in judicial custody for about two years. In the aforesaid case, one of the accused was Khazan Singh. It is worth noting here that, two other PWs, namely Khazan Singh and Pratap Singh, are also coaccused along with PW2 in at least two cases. Further, Umed Rana was also coaccused of PW2 in one case, though he deliberately tried to conceal this fact, but Umed Rana (PW4) himself admitted that Pradeep who was my coaccused in the case in the court of Ms. Renu Bhatnagar was a witness in this case.
105. PW2 admitted that in most of the cases in which he was involved there were allegations against him for using sharp object like knife as well as pistol. Therefore, State Vs. Upender & Ors. SC 75 of 2012 71/112 ID No. 02403R0000861996 not only PW2 is an interested and a chance witness, but his criminal history and his conduct during his deposition, evading and giving false answers makes him an unreliable witness. Therefore, his testimony does not inspire confidence and is not creditworthy. PW2 has made several such concoctions which have either not been substantiated by the police. He deposed that sketches were prepared, which he signed whereas, even this Court observed that no such sketches have been produced or filed with the charge sheet that bears his signatures. PW2 stated that he did not accompany the injured to the hospital. From the college after the proceedings by the police, he went to his house. It is not claimed by PW2 that Rajesh Kumar (PW5) who took Rambir to the hospital was known to him from before. PW2 left the spot at 03:00 PM and took bus for his house. His presence at the spot is highly doubtful and his conduct was unnatural.
106. Furthermore, evidence adduced by PW2 raises serious doubt regarding its correctness and he appears to be an introduced witness. Keeping in view his criminal antecedents, his unnatural conduct and contradictory evidence and the fact that none of other prosecution witness has uttered about his presence at the spot, I find it highly unsafe to rely upon his testimony, which deserves to be discarded. Testimony of Khazan Singh (PW3) - Unworhty of credence
107. Khazan Singh (PW3) was examined in chief on 15.05.1998 and was cross examined on 13.11.1998. During the intervening time, he was stated to be arrested and remanded to judicial custody in another case against him. Accused persons cannot be held to be responsible for delay in his cross examination. Prosecution crossexamined him. PW3 deposed that he took admission in Aurobindo College in 1983. Deceased Rambir was not his friend and Pradeep Kumar was also not his State Vs. Upender & Ors. SC 75 of 2012 72/112 ID No. 02403R0000861996 friend. He used to go to ARSD College during those days to meet Raj Singh as well as deceased Rambir. He deposed that on 03.09.1991, he had gone to canteen of ARSD College, Dhaula Kuan, at about 02.00 pm to meet Rambir and to drink water. After drinking water in the canteen, he was climbing the stairs leading to the first floor. In the meantime, he heard a sound of fire on and gun shoot and also cries of somebody. He saw Devender Garner, Upender Dinesh, Hari Om and Inderjeet were coming down running and Devender was having knife in his hand. When he tried to apprehend Devender Garner, he gave him a knife blow on my left arm and on the left side of my back. In the cross examination, Khazan Singh (PW3) categorically stated that none of the accused present in the court was amongst that persons who had given him knife blow. None of the accused who were present in the court gave any injury to Rambir in his presence and none of the accused who were present in the court were seen by him either in the gallery or in the stairs at the time of the incident. He admitted that he had seen Devender, Upender, Dinesh, Inderjeet and Hari Om in the court when he used to visit the court on hearings of this case before the start of the prosecution evidence. He admitted that before seeing them in the court, he had not seen them earlier. PW3 deposed that the police officers who used to come to the court in respect of this case used to tutor him. PW3 admitted that IO also used to tutor Pradeep Kumar. PW3 deposed that he had given statement in the court on the last date of hearing at the instance of the IO. He was reexamined by Ld. APP. In reexamination, he was not confronted with any portion of statement U/S 161 Cr.P.C.to the contrary. In the cross examination some additional facts were elicited. Rambir (deceased) was got admitted by Rajesh (PW5) at 02.25 P.M but, Khazan Singh (PW3 ) did not accompany him and went to hospital later and got State Vs. Upender & Ors. SC 75 of 2012 73/112 ID No. 02403R0000861996 himself admitted in the hospital at 03.30 P.M. As per MLC Ex.PW23/A, Khazan Singh reached R.M.L. Hospital at 03.30 PM. He was not accompanied by nor taken to the hospital by any one and has he gone there. As per MLC Ex.PW23/A, he was conscious and oriented. He gave the alleged history of assault to the doctor who prepared his MLC which has been proved by Dr. Mukesh Kumar Sharma (PW23). Admittedly, this witness did not disclose the name of the assailant while being examined by the doctor which implies that he did not know the names of the assailant. This non disclosure was confirmed by PW5. Khazan Singh (PW3) heard of firearm/gunshot. Knife blow on his left arm and on his left side of back. He was not student of college on the day of incident. He had gone to meet Rambir belonging to his village but Rambir was not his friend. Admittedly, that he was attending the Court (during hearing of this case) without summons. Admittedly, Pradeep Kumar PW2 and PW14, also used to come. Pradeep (PW2) was not there, where Rambir sustained injuries. None of them was known to him. He did not know who gave him knife blow. In the case reported as Rehmat Vs. State of Haryana, 1997 Crl. L. J. 764, it was observed that this fact that the name of assailants were not disclosed by the witness, who had gone to the hospital for treatment and their name was disclosed at the time, when the complaint was recorded. It was observed that this is another aspect, which was goes in favour of the accused. In Jagir Singh Vs. State, 1975 SCC (Crl.) 129, a case u/s 302 IPC, in which it was observed that none disclosure of the name of the assailants, who were claimed to be previously known, at the first possible instance, while admitting deceased in the hospital and reporting the incident to police constable on duty and witness by non proceeding to the Police Station for giving information nor waiting at the hospital in order to attend the State Vs. Upender & Ors. SC 75 of 2012 74/112 ID No. 02403R0000861996 injured was the unnatural conduct and the strange and inexplicable conduct on the part of prosecution witnesses.
108. PW3 deviated from his statement in examination in chief and gave contradictory statement in cross examination vizaviz certain facts including the identity of the accused person. He has not supported the prosecution case in cross examination and deposed under what circumstances he was compelled and forced to make a statement in examination in chief, by the family members including Ram Phal (PW14). PW3 was cross examined by the Learned Additional Public Prosecutor, when he did not support the prosecution version in cross examination, conducted by Ld. Defence counsel. He confirmed that his statement given in cross examination on 13.11.98 was correct when clarification was sought about the ambiguity in examination in chief and cross examination, besides various other admissions in favour of the accused and even denial of presence of Pradeep Kumar at spot at the time of incident.
109. Perusal of record shows that PW3 was examined on 15.05.1998 but his cross examination was deferred by the Court and case was adjourned to 12.08.1998 and 13.08.1998. On 01.09.1998, 02.09.1998, 04.09.1998 and on 10.09.1998, PW3 was further cross examined. On 10.09.1998, SHO Najafgarh stated that Khazan Singh (PW3) was in judicial custody in case FIR no. 490/1998 u/s 307/34 IPC, P. S. Lajpat Nagar. His production warrants were issued by the Court for 06.10.1998. PW3 appeared from judicial custody and case was adjourned to 12.11.1998. on 12.11.1998, Khazan Singh (PW3) was present and he was not examined by the Ld. Predecessor of the Court as no time was left. Then on 13.11.1998, Khazan Singh (PW3) was cross examined by defence counsels. On 27.11.1998, Ld. Addl. PP was allowed to State Vs. Upender & Ors. SC 75 of 2012 75/112 ID No. 02403R0000861996 cross examine PW3, who appeared from JC. Then, on 23.12.1998, Ld. Addl. PP sought adjournment for his cross examination even on this date. He appeared from JC. PW3 stated that he was taken into JC on 25.08.1998.
110. Ram Phal (PW14), a Head constable in Delhi Police, and brother of deceased was examined after examination of Khazan Singh (PW3). He did not lodge any complaint to the police or to the court during the trial that the witness had been won over by the accused persons or any of them or through any other person, though he (PW14) was pursuing the trial. Ram Phal (PW14) and father Hari Singh (PW3) have not deposed that during the intervening period of the examination and cross examination there had been any enmity or quarrel between the families of the witness and the complainant party which could have made Khazan Singh change his version in cross examination. Inspector Chander Mohan (PW43)/investigating officer also did not make any such statement in the court, that Khazan Singh was influenced by any one. Had there been any suspicion in the mind of the I.O., at the time of examination or cross examination of Khazan Singh or prior to that, PW3 was influenced or won over, he would have intimated this fact to the Ld. Addl P.P. or to the court. There is no circumstance on record to draw an inference that the witness was won over by the accused. In "Suraj Mal vs State" AIR (Delhi Administration) 1979 SC 1408 it was observed that when a witness makes two inconsistent statements in his evidence, at one stage or at two stages the testimony or such witness becomes unreliable and unworthy of credence and that no conviction can be based on the evidence of such a witness. Evidence given by Khazan Singh (PW3) considered as a whole, is not worthy of credence.
State Vs. Upender & Ors. SC 75 of 2012 76/112
ID No. 02403R0000861996 Deposition of Umed Rana (PW5) and Pratap Singh (PW7)
111. These witnesses claimed to be present at the spot. PW5 deposed that on the same day when he was standing near the outer gate of the college with one of his friend he saw that some boys were coming from inside the college while running and they were being followed by some other boys. Some boys who were chasing those boys and were saying that pakroo pakroo as those boys had caused injuries to Rambir by fire arm. Out of those boys, two of them who were ahead boarded the open jeep and escaped towards the round about Dhula Kuan. He stated that 34 boys were running ahead and 1015 boys were chasing them. He did not notice any chowkider or police officials on the main gate of the college at that time as he was outside the gate. This witness did not utter a word about the presence or apprehension of accused Upinder Singh, seizure of cartridges at the spot or about the presence of Ct. Devinder Singh (PW11) and HC Surinder Singh (PW21). They would have heard the sound of fire shot, if present at the gate and going inside the college. PW14 admitted he was facing a criminal trial in one case in the court of Ms. Renu Bhatnagar, M.M. Delhi and in the said case, his coaccused were Pradeep and Chander Pal Singh. He stated Pradeep belonged to Village Barthal and admitted that the said Pradeep, who was his coaccused in the case in the court of Ms. Renu Bhatnagar was a witness in this case. Thus, it shows that this witness was a co accused with Pradeep (PW2).
112. PW7 deposed that on 03.09.1991 at about 3.00 pm, he was standing in front of Aurobindo College and waiting for Uspecial bus for going to Najafgarh. He was alone at that time. He was standing at the spot since 2.00 O'clock. At about 2.00 pm, he heard a sound of gun shot from the side of ARSD College. In the mean time, State Vs. Upender & Ors. SC 75 of 2012 77/112 ID No. 02403R0000861996 Umed Rana resident of Bijwasan who was known to me prior to the incident inform me that somebody had shot Rambir. He also saw three four persons were coming out out of the ARSD College. Those persons boarded black coloured jeep which was parked outside the college and ran towards Dhaula Kuan. PW7 stated that he was involved in case under sec 307/34 IPC of PS Najafgarh. PW7 stated that Rambir was not his friend but he belonged to his village. He knew his elder brother Ramphal who was serving in Delhi Police. This witness also does not utter a word about the presence or arrest of accused Upinder Singh at the spot or about the presence of Ct. Devinder Singh (PW11) and HC Surinder Singh (PW21). It is quiet unnatural on his part that he would make no attempt to shift Rambir to Hospital or accompany him. He deposed that he had studied in Aurobindo College situated in Malviya Nagar and the distance between ARSD College and Aurobindo College is 10/15 kms. If, it is believed that on 3.9.91 at about 3.00 pm, he was standing in front of Aurobindo College and waiting for Uspecial bus for going to Najafgarh, there was no occasion for him to come to ARSD college because the directions and routes were different and ARSD college does not fall on the way.
Rajesh Kumar (PW5) took Rambir to the Hospital
113. PW5 was the only witness whose presence and conduct at the spot appears to be natural, as he got Rambir admitted in RML hospital at 02.25 PM. PW5 deposed that on 3.9.1991 at about 2 PM he was going towards the gate of ARSD college. As soon as he reached in front of the college gate, he saw that two persons were coming running out of the college. One was wearing black colour cloths and the other was wearing slati dress. Those two boys boarded a jeep of black colour which was parked outside the college and escaped towards round about Dhula Kuan. In the State Vs. Upender & Ors. SC 75 of 2012 78/112 ID No. 02403R0000861996 meantime another boy also came running out of the college and boarded a motorcycle make Yamaha and escaped towards Dhula Kuan. PW5 stated that at that time there was stampede in the college and the boys were running in different directions. He came to know that the injured person was from village Bharthal and his name was Rambir (objected to being hearsay) since Rambir was known to him so he rushed to the first floor of the college. He saw the Rambir was lying on the first floor of the college and blood was coming out of his belly and thighs. He picked him up with the help of 23 boys and he brought out side the college on Ring Road. From there they moved him to RML Hospital in a maruti Car. After some time, police reached in the hospital and made enquiries from Rambir. Rambir and Khazan Singh did not disclose any thing about the details of incident and the name of the assailants to the doctor, police or to PW5 despite enquiries made from them. PW5 deposed that he did not know the person, who were saying PakrooPakroo. He had not identified those persons who are saying pakroopakroo at the instance of the police. In his presence, none of the person who were saying PakrooPakroo reached in the hospital.
114. Significantly, PW5 does not says a word about the presence or apprehension of accused Upinder Singh at the spot or about the presence of Ct. Devinder Singh (PW11) and HC Surinder Singh (PW21). PW5 admitted that there used to be a guard at the gate of the college volunteered. He did not notice any guard on that day. He admitted that at the gate of the college there used to be a chowkidar along with the register. He admitted that in the said register the entries used to be made of the persons who are outside of the college. Chowkidar of the college was not interrogated by the police in his presence.
State Vs. Upender & Ors. SC 75 of 2012 79/112
ID No. 02403R0000861996 Discrepancies in the Medical Evidence
115. Rambir (deceased) was got injured on 03.09.1991. Evidence on record shows that he was admitted in RML Hospital, where he had undergone Thoractomy and Laprotomy on 03.09.1991 itself. His general condition substantially improved and on 06.09.1991 the patient, as shown in the medical records (Ex.PW18/DA), was conscious, oriented and well responsive to verbal commands. He was later discharged on 17.09.1991 for further management. He is stated to be admitted to Safdarjung Hospital on 17.09.1991 and discharged on 14.10.1991. It may be noted that there is no satisfactory proof regarding treatment or admission of Rambir in Safdurjung Hospital. There is an endorsement to the contrary in MLC (Ex.PW18/C) to show that "No such patient came on 17.09.1991 from 09:00 am to 810 PM according to register. As regards treatment in Safdurjung Hospital, only one Out Patient Ticket dated 13.09.1991, (Ex.PW22/A), has been placed on record and no other document pertaining to his treatment, admission or discharge has been placed on record. Instead of discharge slip of Safdurjung Hospital on 14.10.1991, prosecution has placed on record an endorsement made by HC Ramesh Chand (PW19) who is stated to be on duty in Safdurjung Hospital, on (Ex.PW18/C) which is in fact the MLC prepared by RML Hospital dated 03.09.1991. In this regard, he deposed that on 14.10.1991, he was posted in Safdurjung Hospital. He signed MLC (Ex.PW18/C) at point A, as the patient Ram Bir Singh was discharged in his presence. MLC of the patient was not obtained by him from the hospital neither was it handed over to him by the IO. He denied that he could not write the date of discharge on the MLC, it was the duty of the doctor supervising the treatment to write the same. He denied that he had mentioned the date of the discharge as State Vs. Upender & Ors. SC 75 of 2012 80/112 ID No. 02403R0000861996 14.10.1991 wrongly and incorrectly at the instance of the IO and Ram Phal the brother of the patient Ram Bir Singh who was also the Head Constable in Delhi Police. He recorded the date of discharge of the patient on the basis of the record received from ward and the same was sent by doctor. IO had come to him on 14.10.1991 and on that day he recorded the date on the MLC. PW19 had not mentioned the time of discharge on the endorsement. It is not clear why a duty constable of a hospital make an endorsement regarding the discharge of patient on the MLC prepared by another hospital more than a month and half earlier and from where he was discharged nearly a month earlier. It is not the duty of the duty constable to write the date of discharge on the MLC, but the duty of the attending doctor. In the absence of the any other satisfactory evidence regarding the treatment, admission and discharge of the deceased in Safdurjung Hospital, the evidence of PW19 cannot be relied upon.
116. It may be pertinent to mention here that there is no reliable document of Safdarjung hospital on record to show or on which date Rambir was admitted in Safdarjung Hospital and when he was discharged from there? Documents of Safdarjung hospitals including OPD tickets and case sheet of Ram Bir do not inspire confidence. Date of discharge mentioned on MLC of RML Hospital 14.10.1991 appears to be manipulated. Moreover, the case sheet of Ram Bir prepared at SJ hospital shows that Ram Bir was examined and advised treatment on 18.10.1991. Records of Albega Hospital shows that Ram Bir was admitted there at 06:00 am on 14.10.1991 and he died there on 16.10.1991 at 8 am. If the story of PW19 regarding discharge of Ram Bir from SJ Hospital on 14.10.1991 is to be taken as correct, an inference can be drawn that the condition of Ram Bir would have been satisfactory State Vs. Upender & Ors. SC 75 of 2012 81/112 ID No. 02403R0000861996 after undergoing treatment at SJ Hospital from 13.09.1991 to 14.10.1991. It is beyond comprehension that his condition would become so much worse requiring admission in Albega on 14.10.1991 at 6 am. It is surprising that one document as Safdarjung Hospital OPD card dated 13.09.1991 of Rambir (Ex.PW22/A) indicates that after examining the patient Rambir, he was advised admission but since bed was not available, he was called on Monday. This was in complete contradiction to the record of RML hospital which indicated that Rambir was already under admission in RML and was discharged only on 17.09.1991. As such the examination / treatment of Rambir on 13.09.1991 at Safdarjung Hospital vide Ex.PW22/A does not arise. Documents of SJ Hospital were not originally filed with the Charge sheet but were brought on record at the instance of Ramphal (PW14) which was objected to by the defence counsel. It appears that the true facts as regards admission, treatment and discharge of Rambir at Safdarjang Hospital have not been placed before the Court.
117. Dr.V.K.Sharma (PW22) of SJ Hospital, deposed on the basis of medical records which are irreconcilable with the case of prosecution. He deposed that on 30.9.91 vide FC No.16652/91 Rambir was seen by him on being referred from RML hospital. At the time of admission injury was 25 days old. But Rambir remained in RML Hospital from 03.09.1991 to 17.09.1991 as incident being of 03.09.1991. The FC No. 16652/91 (Ex.PW22/A) is dated 13.09.1991 as such (Ex.PW22/A) does not fit in the story of the prosecution either way. If the date of examination as 30.09.1991 and injuries as 25 days old are taken as correct, the date of incident would come to 5/6 September, and if the date of examination as 13.09.1991 is taken as correct, injury cannot be 25 days old. (Ex.PW22/A) has not been proved as per State Vs. Upender & Ors. SC 75 of 2012 82/112 ID No. 02403R0000861996 law, when he stated some doctor has shown me the patient. He further stated that the case was seen by him as per endorsement by some doctor encircled in red. In cross examination he categorically admitted that none of the document was in his handwriting nor any document was endorsed by him. No document was signed by him. The documents were seen by him for the first time as it was prepared after words. He admitted that in the case sheet (Ex.PW22/A) it had not been written by him or any other doctor that the patient had been shown to him.
118. After obtaining the certified copy of the medical papers of S J Hospital Dr.V.K.Sharma was recalled and examined as DW4 by the defence wherein he proved medical papers i.e. documents of Safdarjung Hospital (Ex.DW4/1 to Ex.DW4/4) according to which Rambir was examined and treated at safdarjung Hospital on 13.9.91, 17.9.91 ,21.9.91, 28.9.91, 2.10.91, 8.10.91, 14.10.91, 16.10.91 and 17.10.91. As per the case of prosecution, Rambir was admitted in Albega Hospital on 14.10.91. He died and was cremated on 16.10.91 without information to police and without conducting his postmortem despite Ramphal (PW14 ), elder brother of deceased, being a police officer.
119. Dr. Mukesh Kumar Sharma (PW23), CMO RML Hospital on 03.09.1991 stated that patient was admitted on 03.09.1991 and he (Rambir) was talking to him and was in a position to make oral statement. Again said the patient was in position to make coherent statement. He did not know whether patient remained unfit for statement till the date of his discharge viz 14.10.1991. He tried to explain that his general condition was deteriorating therefore, he could not record his statement and he did not examine the patient subsequently. He did not ask either the person accompanying the injured or the injured himself as to where the injuries were State Vs. Upender & Ors. SC 75 of 2012 83/112 ID No. 02403R0000861996 received and who had caused the injuries. As per record, Rambir Singh had come at 2:25 pm and Khazan Singh had come at 3:30 pm. Khazan Singh also did not tell him as to where he received the injury and by whom he was assaulted. In (Ex PW 18/C) his handwriting is all over except the opinion given by the other doctor regarding the fitness of the injured. He did not know who had made the other entries in (Ex PW18/C) and at what time, regarding the fact whether patient was fit or unfit. Both the injured did not give him the names of any of the assailants, nor the accompanying persons gave any such name. There was a column of alleged history and accordingly he tried to know the history of injuries received and he could not know that there was an assault on him.
120. Dr. K K Saraswat (PW6) of Albega Hospital deposed that he had neither examined the patient himself not could he affirm the findings of the doctor who had examined the patient vide (Ex PW 6/A) with reference to (Ex PW 6/A), he admitted that the record related to 15.10.91 and 16.10.91. He admitted that there was no case sheet dated 14.10.91. He did not remember if the patient was examined on 14.10.91 or not. Again said the case sheet was from 14.10.91 to 16.10.91 and at point A, the date was wrongly mentioned as 15.10.91 instead of 14.10.91. He admitted that at pointA the date was given as 15.10.91. He deposed that apart from the case sheet (Ex PW6/A) and death information certificate (Ex PW6/B), no other record pertaining to their hospital was placed on file. thus, as per Safdarjung Hospital record, he is shown to be under treatment from 17/09/91 till 17/10/91 and doctor from Safdarjung Hospital deposed that on 17/09/91 from 8:00 AM till 09:00PM, no patient by the name of 'Rambir' got admitted in the hospital. Thus, the case of the prosecution regarding treatment of Rambir (deceased) at SJ Hospital and Albega State Vs. Upender & Ors. SC 75 of 2012 84/112 ID No. 02403R0000861996 Hospital is full of doubts.
Statement of deceased dated 20.09.1991 : clouded with suspicion
121. Statement of the deceased was allegedly recorded by the IO on 20.09.1991. Scrutiny of record shows that this statement of the deceased, which was allegedly recorded by the IO does not qualify to be admitted in evidence as a statement u/s 32(1) of the Evidence Act. Evidence on record clearly shows, that the said statement was not recorded at the earliest opportunity and therefore, there is reasonable ground to believe that it has not been made by the deceased. Further, the possibility that the statement was concocted at the instance or PW14 cannot be totally ruled out. Evidence regarding the fitness of the deceased to make a statement is not consistent and clear. IO made no efforts to get the statement of Rambir recorded by a Magistrate despite having an ample opportunity to do the same. Therefore, the said statement recorded in the nature of a statement U/S 161 Cr.P.C cannot be said to be of any value and no reliance can be placed on the same.
122. The question which arises for consideration is that if on 20.09.1991 the deceased was found to be fit for making the statement why was he not found so when he was discharged earlier on 17.09.1991 from Ram Manohar Lohia Hospital. Whether any sanctity can be attached to such a statement stated to be U/S 32 (1) Evidence Act, when the deceased was again discharged from Safdarjung Hospital later? Discharge ordinarily means and give rise to presumption that the deceased was in condition to go home and perhaps did not require medical attention at the hospital. Thus, reliance on such a statement at par with a dying declaration is misconceived. It has already been noted above that case of prosecution regarding exact date of treatment and discharge of deceased in doubtful. State Vs. Upender & Ors. SC 75 of 2012 85/112
ID No. 02403R0000861996
123. This statement was not recorded at the first instance. PW2 deposed that when the injured was removed to the hospital from the college, at that time he was in senses. He did not know what happened to him lateron. This witness did not state if he made any query from Rambir or he of his own stated anything to him. Dr. Mukesh Kumar Sharma (PW23), who was posted in RML Hospital as CMO on 03.09.1991 and treated the deceased on the same date, deposed that he was talking to him and was in a position to make oral statement. Again said the patient was in position to make coherent statement. He did not ask either the person accompanying the injured or the injured himself as to where the injuries were received and who had caused the injuries. According to the record, Rambir Singh had come at 2:25 pm and Khazan Singh had come at 3:30 pm. Khazan Singh also did not tell him as to where he received the injury and by whom he was assaulted.
124. Entire (Ex PW 18/C) was in his handwriting except the opinion given by some other doctor regarding the fitness of the injured. He did not know who made other entries in (Ex PW18/C) and at what time patient was fit or unfit. Both the accused did not give him the names of any of the assailants. Not the accompanying persons gave any such name. There was a column of alleged history and accordingly, he tried to know the history of injuries received and he could not know that there was an assault on him. PW23 was not the doctor who gave the opinion regarding the fitness the deceased on 03.09.1991. He deposed that the patient was talking to him and was in a position to make coherent statement. The prosecution has not examined the doctor as a witness who gave the opinion regarding fitness on 03.09.1991, as a witness. It has come on record that the general condition of the patient had improved substantially after his admission on 03.09.1991 and on State Vs. Upender & Ors. SC 75 of 2012 86/112 ID No. 02403R0000861996 06.9.1991 the patient, as shown in the medical records (Ex PW 18/DA), was conscious, oriented and well responsive to verbal commands. Dr. Sanjay Singh, who gave the opinion regarding the fitness of the deceased on (Ex PW 18/C), has not been produced by the prosecution on the ground that he was not working in the hospital and his whereabouts were not known. In this context, Dr. O P Paithania (PW18) deposed that all government officials while joining service had to give their permanent address at the time of joining the services. He categorically stated that he was Dr. Kapil Sethi was available in India.
125. Dr. Seema (PW42) identified the hand writing and signature of Dr. Sanjay Singh on the basis of record, who signed at point X, but she specifically stated that she had not seen Dr, Sanjay Singh writing or signing. She admitted that permanent address of the Dr. Sanjay Singh would be available in the Administrative Section of the Hospital. She had not seen Dr. Snajay Singh writing and signing. She had no personal knowledge of the case. She admitted that she was never associated with Dr. Sanjay Singh during the examination of the patient Ram Vir. Thus, PW42 cannot be said to have identified endorsement 'not fit for statement' and signature of Dr. Sanjay Singh. Prosecution has failed to prove any of the certificates of deceased 'being unfit' for giving statement while he was in RML hospital.
126. Testimony of Ram Phal (PW14), brother of the deceased, may also be noted here. He deposed that his brother remained in the ICU for 6 days. His brother was shifted to ward from ICU unit after 6/7 days. On 17/18.09.91, he had a talk with his deceased brother for the first time after his admission in the hospital. On 17/18.09.91 the police officials from PS RK Puram had met his brother, the police officials used to come between 10/12 am and on that day also they came in between that time. The State Vs. Upender & Ors. SC 75 of 2012 87/112 ID No. 02403R0000861996 officials used to ask about his well being and then used to leave. On their asking about the condition of his brother, he also used to say that he was OK. He did not join the duty in the month of September 1991. He used to reach at the hospital in the morning at 8:00 am. The police officials used to visit at about 10/10:45 am. This evidence indicates that deceased was all right on 17/18.09.1991 and police met him. Despite having met the deceased on 17/18.09.91, police did not record his statement or moved any applications for the same on that day.
127. No application was moved by the IO for recording the statement of the accused on 20.09.1991. The prosecution has provided no explanations for the same. In this reference, Ramphal (PW14) deposed that he had no knowledge who was the in charge of the ward on 20.9.91. The police officials came to the ward at about 10.30/11.00 a.m. and remained at the hospital 12.00. In his presence, no application for recording statement of his brother was given to the doctor or hospital authorities. But, at the relevant time one doctor was present, who had not signed any paper in his presence and the said doctor inquired from his deceased brother whether he was feeling well and thereafter on replying by his deceased brother he left the ward.
128. Even, if it is assumed that the IO recorded the statement of the deceased on 20.09.91, there is no explanation at all as to why he did not get the same recorded by the SDM or doctor or at least got it attested by a doctor. According to prosecution, deceased remained and admitted in Safdurjung Hospital till 14.10.1991 when he was discharged. It is highly suspicious that if the deceased had in fact made any such statement, then, despite having sufficient time and opportunity, IO would not get the same recorded before any Magistrate or doctor. He made no efforts to call them. In Gulab Singh vs State 1995 JCC 470, Name of assailant were not mentioned in State Vs. Upender & Ors. SC 75 of 2012 88/112 ID No. 02403R0000861996 Medico legal certificate (MLC) . It was observed that there was no obvious reason why the name of accused as assailant was not disclosed to the doctor who prepared MLC, this knocks down the whole prosecution case about the deceased having made any dying declaration naming accused as assailant.Rajesh (PW5), who took injured to hospital does not utter a word that on the way to the hospital deceased had named the assailant. Thus, authenticity of the alleged statement of Rambir (deceased) is clouded with suspicion about its existence on 20.09.1991. Statement of Rambir recorded by IO in the circumstances of this case does not inspire confidence and is not admissible u/s 32(1) Evidence Act and it can not be used for any purpose. Keeping in view all the aforesaid facts, it is not possible to place any reliance on the so called dying declaration recorded by the investigation officer during investigation of the case.
Manipulation in the first information report
129. It is settled law that in a criminal case, and particularly in a murder case, an FIR is a vital and valuable piece of evidence for the purpose of appreciating the evidence at the trial. The object of insisting upon prompt lodging of FIR is to obtain the earliest information regarding the circumstances in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, but danger also creeps in of the introduction of a colored version or exaggerated story. With a view to determine whether FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. State Vs. Upender & Ors. SC 75 of 2012 89/112
ID No. 02403R0000861996 One of the checks is the receipt of the copy of the FIR, in a murder case, by the local Magistrate. If this report is received by the Magistrate, it can give rise to an inference that the FIR has not been lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for delay in dispatching or receipt of the copy of the FIR by the local Magistrate.
130. IO/(PW43), who appeared to prove the documents prepared by SI Ompal Singh categorically deposed that "no special report of this case was sent to the senior officer by me. He knew PPR rules. As per PPR rules, it was incumbent upon the duty officer to inform the senior officer about the registration of any heinous offences and over all responsibility is of SHO." He further stated that special report was not sent to the higher officers immediately as the senior officers had visited the spot and in the evening the special report was sent to the senior officers. No witness of special report having been delivered to the senior officer has been cited or examined. No such DD entry has been placed on record nor any witness has been cited to prove the entry. The entry if so recorded in the daily diary would include inter alia the substance of information, name of the assailants, witnesses and brief facts. Similarly it is mandated by section 157 Cr.P.C, that the copy of first information report shall be sent forthwith to the Magistrate empowered to take cognizance of such offence. No witness has been cited or produced during trial to prove the compliance of the above said requirements. SI Ompal Singh, the first I.O has since expired. Therefore, defence had no opportunity to prove the said position about the FIR. He would have been an important witness to reveal the truth.
131. Admittedly, Pradeep Kumar (PW2), author of FIR was having criminal background. He was involved in several heinous offences like murder, attempt to State Vs. Upender & Ors. SC 75 of 2012 90/112 ID No. 02403R0000861996 murder etc. According to the settled law, the statement of such witness has to be weighed with great caution. There are material improvements in his testimony on various points which render his statement unreliable. This witness was confronted with statement recorded under section 161 Cr.P.C. None of the prosecution witness has stated about his presence at the spot. Cursory perusal of complaint (Ex.PW2/A) at a glance would show that last sentence seems to have been incorporated later on. It is not clear as to how the name of other accused persons were incorporated in the FIR, when he was not knowing their names at the time of making the statement and only came to know about their names at the later stage. It is also not disclosed as to what was the source of information at the time of alleged later stage. In any case the informant at the later stage was some other person who was attempting to introduce the names of additional persons. This prima facie indicates a clear manipulation in the FIR at a later stage. PW2 further deposed that he had not given the name of one of the assailant in his statement Ex.PW 2/A as Davinder resident of Kilokri, whose particulars are mentioned in portion A on Ex.PW 2/A.
132. This is another instance where some portions have been incorporated in the FIR which the author of FIR himself denied having made it. PW2 deposed that before his statement Ex.PW2/A, he had come to know that the accused Upinder had been apprehended and the four live cartridges have been recovered from him. The pistol had been recovered by the police before his statement (Ex.PW2/A) was recorded and he had stated in my statement Ex.Pw2/A that pistol had already been recovered. PW43/IO, however, deposed that seizure of desi katta and live cartridges took place at about 6.30 or 7 P.M. The IO who recorded his statement (Ex. PW 2/A) was from the police post Nanakpura. After taking his signatures on the statement State Vs. Upender & Ors. SC 75 of 2012 91/112 ID No. 02403R0000861996 police did not write anything on the same. In his presence, no police official took the document (Ex.PW2/A). He remained at the spot up to 3 P.M and PW2 reached his house at about 5 P.M on the day of incident. He had gone alone to his house alone to my house. He took the bus for his house at about 3.00 PM. On that night, he stayed in his house. On the night of 3.9.91, the father of the deceased had come to his house for going to the hospital but he refused. According to PW2, thereafter police official took him to the place where the incident had taken place. He narrated the whole incident to the police officials by pointing out the same. At the spot police did some paperwork and thereafter lifted some blood from the spot vide memo Ex.PW1/A. Thereafter police recorded his statement. On 3.3.91, the incident had taken place at about 2:00 PM. His statement was recorded by the police at the spot which is (Ex. PW 2/A). He had given roughly the numbers of persons as seven or eight. He had not stated to the police that their numbers was six or nine. He had given only the names of three four persons in his statement to the police as he knew them by name. Later on he came to know about the names of the other accused. PW2 stated that on the day when his complaint was recorded, he had given the names of those accused persons whom he knew personally. On the same day, he had not given the names of other accused persons in his complaint.
133. PW2 reiterated that he had given the names of three accused i.e. Garner, Dinesh and Upender in his complaint, as he knew them personally. PW2 categorically stated that he know the person by the name of Gosain. He could identify him also but wrongly identified accused Akram Jamil as Gosian. According to him, his statement was recorded later on 23 times. According to him, before his statement (Ex. PW 2/A) was recorded, he had come to know that the accused State Vs. Upender & Ors. SC 75 of 2012 92/112 ID No. 02403R0000861996 Upender had been apprehended and the four cartridges have been recovered from him. Pistol had been recovered by the police before his statement (Ex. PW 2/A). According to PW2, he stated in his statement Ex. PW 2/A that the pistol had already been recovered. At the time of recording of his statement, the Principal of the college as well as Mr. Jain were also there. They remained standing there, while his statement was being recorded. In the statement (Ex. PW 2/A), it is not specifically mentioned that Upender was present at the spot, after apprehension. Court made observations that the witness was not able to give specifically direction of the accused standing there at that time. All the facts noticed above highlight manipulations and embellishment in recording of FIR.
Arrest of Upender and thereafter recovery of countrymade pistol/katta - doubtful
134. As per prosecution Ct. Devinder (PW11) was deputed at ARSD College on 3.9.91. He was declared hostile by ld. APP. PW11 deposed that he was on duty since morning to evening as college election scheduled those days. At about 1.30 PM HC Surinder Singh and Ct. Hari Om came on the motorcycle and HC remained with him and Ct. Hari OM left the college on the same motorcycle. There was lot of rush in those days in the college. Some persons alighted from the car and went inside the gate. It was about 1.40 pm at that time. After sometime, he heard a noise of a cracker and that time it was about 1.50 pm. And on this, some boys came towards them running. There were followed by some persons and he heard a noise that a fire had been shot by that boys. Some persons of the public hit that boy on the head with the stone. That boy was apprehended his name was revealed as Upender s/o Raghu Veer Singh. On search of his person four live cartridges were recovered. He had seen the accused present in court today from whom four cartridges were recovered State Vs. Upender & Ors. SC 75 of 2012 93/112 ID No. 02403R0000861996 from the spot. He handed over all the four cartridges along with the accused Upinder to IO SI Om Pal and who received all the four cartridges seized by the IO. Then, he along with Ct., Hari Om and HC Surinder reached at Moti Bagh chowk. Ld. Addl. PP for the state declared this witness hostile and cross examined him. In cross examination, he admitted that the statements of Ct. Kamal Kishor and Ashok were recorded by the IO and the motorcycle was seized, after reaching the police station and the statement of Umed and Narender Negi was recorded by the IO. This witness contradicted PW21, the only other witness of search/seizure of cartridges. He claimed that after search he had handed over the cartridges to the IO. On the other hand, PW21 claimed that he had handed over the cartridges to IO. Different versions have been given by these witnesses regarding the manner and circumstances of apprehending the accused Upinder. He is silent about the jumping of accused Upinder over the barbed wire fencing. During the cross examination he confirmed that from ARSD College he along with HC Surinder (PW21) and IO had gone to Moti Bagh chowk. From Moti Bagh went to P.S alongwith IO where statements of witnesses were recorded. These facts indicate recording of statement of Pradeep (PW2) at Police station and not at the spot. This also rules out the case of prosecution that HC Surinder (PW21) took accused Upinder to RML hospital for medical examination from the spot. PW21 was sitting inside the main gate of the college at a distance of about 7/8 feet from the main gate. He was standing there and the other police official was sitting on the bench whose name he did not remember. The stairs to the main building leading to the main building leading to the first floor were at a distance of about 250 feet from the main entrance gate of the college premises nearby which he was there. He remained in the college premises on the State Vs. Upender & Ors. SC 75 of 2012 94/112 ID No. 02403R0000861996 day of occurrence till 8.00 PM. Before that in between 2.00 PM2.30PM, he had gone to Moti Bagh when a call was received that some boys were apprehended there. He accompanied IO to PS in the day time. He had gone to picket at Moti Bagh with IO. Probably he had remained there for about 2 hours. During the period he remained at PS IO remained there. During the period,he remained at the picket IO remained there. IO recorded the statement of Narender Negi and Umed Rana that day at PS when we had gone from picket at Moti Bagh to PS. He did not remember on which conveyance he came back to college but IO was with him. This witness had made material improvements over his statement U/S 161 Cr.P.C and was duly confronted, particularly on the fact of handing over of accused Upinder and cartridges to IO. In cross examination, PW21 deposed that four five persons had come towards us running followed by various persons which were about 300/400 in numbers. He noticed 4/5 persons firstly from a distance of about 200 to 300 feet. The other persons who were running were about 30/35 feet behind those persons. Some persons were coming inside the college and some persons were going outside the college from inside. PW1 was cross examined by Ld. Addl. PP. and accused Upender was shown to him and it was suggested to him that it was he, who was apprehended by police officer. PW1 after seeing accused Upender initially stated that he was being beaten by the persons but subsequently, stated that the person who was apprehended by the police was also beaten by other person, but he could not tell whether it was accused Upender or not, who was being beaten and apprehended by the police. Thereafter, he denied that accused Upender present in Court was the same person, who was apprehended by the police, in his presence.
135. There are as many versions regarding the recovery of the katta as there are State Vs. Upender & Ors. SC 75 of 2012 95/112 ID No. 02403R0000861996 witnesses. Seven witnesses who have deposed regarding the recovery of the katta have introduced different versions regarding the recovery, making the whole story of the prosecution unreliable. Regarding recovery of the katta, Pradeep Kumar (PW2) deposed that in meantime, accused Upender present in the court took out a country made pistol and when Rambir was taking a turn in order to save him, he fired a shot which Rambir on his back side. At the spot, police officials who had caught accused Upender took his search. From the possession of accused Upender, a country made pistol and four live cartridges were recovered. Police officers confirmed from him whether he was the same person, who fired the shot inside the college, which he confirmed to them. In the meantime somebody informed the police upon which police reached there. Police officials checked the countrymade pistol and took out the used cartridge. The countrymade pistol, used cartridge and four live cartridges were sealed separately by the police with the seal of SKF. PW2 identified the countrymade pistol and cartridges recovered from the possession of accused Upender. PW2 admitted that in most of the cases in which he was involved there were allegations against him for using sharp object like knife as well as pistol. He stated in his statement to the police that the police officials checked the country made pistol and took out the used cartridges from the pistol. He stated in his statement to the police, that the countrymade pistol, used cartridges and four live cartridges were sealed separately with the seal SKF. The pistol had been recovered by the police before his statement (Ex.PW2/A). Admittedly, this fact is not mentioned in his statement (Ex.PW2/A). PW2 stated in his statement (Ex.PW2/A), the revolver was lying in the stairs and not where Rambir was injured. When the police came, the principal of the college after taking out the pistol from his drawer, State Vs. Upender & Ors. SC 75 of 2012 96/112 ID No. 02403R0000861996 produced the same before the police, by stating that the aforesaid pistol was picked up by the chowkidar from the stairs and was given to him. The aforesaid revolver was taken into possession by the police in the veranda. The sketch of the revolver was also prepared and he put his signatures on the sketch. Court made an observation that the signature of the witness were not on the sketch of the revolver mark A. The pistol was given by the Principal to the police.
136. B. L. Arora (PW1) Principal gave a different version and deposed that chokidar Hari Ram recovered the pistol which was lying near the staircase and put the same in the drawer of Mr. N. L. Jain, the Administrative Officer. PW1 stated that he himself handed over the katta to the police. He deposed that From the gate, he along with his colleague and some police officials came back to his office. There, they were informed that a pistol was recovered by chowkidar Hari Ram which was lying near the stairs. The chowkidar after informing his PA, but that pistol in the drawer of Sh. N. L. Jain, the then Administrative Officer. Police was informed regarding the aforesaid fact and thereafter, the said pistol was brought in his office and then it was handed over to the police. Pistol was also taken into possession after sealing the same by the police vide memo (Ex.PW1/C) which also bears my signature at point A.
137. Whereas, N. L. Jain, (PW 24) Administrative Officer stated that it was he, who handed over the katta to the police. He also stated that chowkidar Hari Ram put the katta in his drawer in his absence. He deposes that one chowkidar namely Hariom told him that he put a pistol in his drawer in his absence as he was busy in telephoning the police. . The police reached and he handed over the pistol to the police. He denied that in his presence in the office of the Principal, the pistol was State Vs. Upender & Ors. SC 75 of 2012 97/112 ID No. 02403R0000861996 checked by the police and during checking one empty cartridge was taken out from the chamber of said desi katta 'countrymade pistol'. He denied that desi katta belonged to accused Upender.The Chowkidar, who according to PW1 and PW24 recovered the katta.
138. Hari Ram (PW 12),contradicted N.L. Jain (PW24) and stated that it was in fact Sh. Jain who had kept the katta in the drawer of his table. He deposed that he came for duty at ARSD college and while he was going to take charge from other chowkidar namely Om Prakash. He was going for checking a room and found a katta on stairs. He handed over katta to Sh. Purshottam Lal jain who kept the katta in the drawer of his table. He denied that Sh. N. L. Jain was not present in his room or the said katta handed over to Sh. Krishnani PA to Principal and on his direction, katta was kept in a daraj of Sh. Jain. He could not tell whether this katta was the same katta shown to him in the court is the same katta which was handed over to Mr. Jain. Sh.S C Krishnani (PW 25) deposed that during the student Union election in the month of September 1991, he was going outside from his room and when he was passing through the room of Administrative Officer, one of the chowkidar whose name he did not remember now, met him and who was having a pistol in his hand and who told him that the said pistol, he took from the staircase. Then, he directed him to keep the same in the drawer of AO in his office.whereas, Inspector Chander Mohan (PW43) deposed that the pistol was handed over to IO SI Ompal Singh by Narottam Lal Jain, Administrative Officer (AO) of ARSD College, in the presence of the Principal of the College. Sh. B. L. Arora Principal, was present and in his presence, AO, Narottam Lal Jain produced a desi katta, with a fired cartridge. The seizure of desi katta and live cartridges took place at about 06:30 or 07:00 PM. State Vs. Upender & Ors. SC 75 of 2012 98/112
ID No. 02403R0000861996 However, he could not tell the exact time. PW21 denied that on 3.9.91 no desi katta and live cartridges were recovered and that is why ACP Vasant Vihar vide EX 43/DA had directed in this regard. Head Constable Surender Singh (PW21) stated that the Principal of the college (PW1) handed over the pistol. He deposed that afterwards SI Ompal Singh made inquiry regarding the incident from principal and Principal of the said college handed over one pistol and empty cartridge to SI Ompal Singh. He did not remember that crime team had given instructions to the IO that katta be recovered and sent to CFSL alongwith empty cartridge for comparison. This indicated that the katta was not recovered till the crime team visited the spot and is contrary to the case of prosecution. He did not remember if it had been recorded in the rukka that the principal had produced one kutta and one cartridge. He had seen (Ex PW 21/DR) which was the sketch of katta (countrymade pistol). (Ex PW 21/DR) did not bear his signature. Thus, whole story regarding the recovery of the katta is highly doubtful and not worthy of credence.
Baseless story about snatching of motorcycle No. DL1S3909 belonging to one Adil Ahmed Khan
139. IO/Inspector Chander Mohan (PW43) deposed that ACP had reached at the spot after he had reached at the spot for the first time. After reaching at the spot second time, he had been searching the complainant and had not been to the police station. From the complainant, he mean the complainant of whom motor cycle was snatched whose name was Adil and motor cycle no was DL IS 3909. According to IO, no fresh case with respect to the snatching of the motor cycle was registered and Section 392 IPC was added in this case, on the basis of statement of complainant Adil. That motor cycle was recovered later on 17.11.91 from the parking of Safdarjung Hospital. Ct. Suresh Kumar (PW15) stated that Khan Abdul also present State Vs. Upender & Ors. SC 75 of 2012 99/112 ID No. 02403R0000861996 there who told to IO, SI Om Pal that the three boys had taken his motor cycle and they had run away with his motor cycle make of the motor cycle he did not remember now, then SI Om Pal received the information that the boys who had taken the motor cycle were apprehended at Moti Bagh Picket and one among of them was with the motor cycle.Perusal of the case diary reveals that owner of motor cycle no. DL 1S 3909 had sent a thanks letter dated 16.11.91 to SI Ompal Singh for tracing his motorcycle which was stolen. This fact indicates that this motorcycle was, already in the custody of the police even before the alleged recovery of the motorcycle on 17.11.91. Therefore, theory of snatching of motorcycle by any accused persons and running away from spot appears to be baseless and false. Arrest of accused Gyaneshwar Sinha, Akram Jameel and Surender Singh, scene at Moti Bagh Chowk
140. As per SI Dhani Ram (PW 9), he was present in the police station on 03.09.1991 when he received a message on wireless that the boys had been stopped in a jeep who have committed the offence at ARSD College. He along with Inspector Chander Mohan reached at Moti Bagh chowk where two constables PW32 Ct. Ashok Kumar and Ct. Kamal Kishore (not examined) had apprehended the said boys with the jeep bearing No.DDV4310. One boy on motorcycle was also apprehended by the police namely Surender Singh. Two public witnesses, namely Umed Rana and one Negi were also allegedly present went into them to police station R.K. Puram. PW9 However he did not name accused Gyaneshwar Sinha and Akram Jameel to be the persons apprehended at Moti Bagh chowk. While being crossexamined, he stated that time when he reached near Moti Bagh Chowk,it was 2.15 PM. He stated in that they reached back to the police station at about 2.20 p.m.
141. Surprisingly, the seizure memo of jeep bearing No.DDV4310 Ex.PW/20A is State Vs. Upender & Ors. SC 75 of 2012 100/112 ID No. 02403R0000861996 not witnessed by Ct. Ashok Kumar (PW 32) and Ct. Kamal Kishore or by any public witnesses. Whereas the seizure memo of motorcycle No. DMI2196, which has not been exhibited by the prosecution has been witnessed by PW 32 Ct. Ashok Kumar and Ct. Kamal Kishore. Seizure memo of jeep bearing No.DDV4310 Ex.PW/20A is witnessed by PW 20 Ct. Hari Om who was not present at the time of actual seizure of the said Jeep as per the case of prosecution. PW32 Ct. Ashok Kumar has not identified accused Gyaneshwar Sinha and Akram Jameel in the Court. He was cross examined by the Addl.P.P. In his cross examination by the Addl.P.P, PW32 Const. Ashok Kumar stated that he could tell the accused Akram, Gyaneshwar and Surender were the same persons who were apprehended by him at Moti Bagh Picket. Even on pointing out of Addl.P.P. the said witness stated that he cannot identify them.
142. Ct. Hari Om (PW 20) in his examination in chief stated, that he took Rukka to the police station R.K. Puram and after registration of the case, he returned back to the spot and handed over the copy of FIR along with Rukka to S.I. Om Pal Singh. Then he along with S.I. Om Pal Singh, Ct. Yatender, Ct. Devender and Ct. Suresh reached at Moti Bagh picket from where a motorcycle No.DNI 2196 was also seized by S.I. Om Pal Singh. He did not state that any jeep was also seized at the Moti Bagh picket. This clearly creates a doubt on the story of prosecution about apprehending of accused Gyaneshwar Sinha and Akram Jameel at 2.15 P.M. at Moti Bagh Chowk in a jeep. Shri D.P. Sinha (PW34) registered owner of the Jeep DDV 4310 had stated that some police men came to his residence at 10 p.m. in the night and had seized the said Jeep from his residence which he later obtained on superdari. Other eye witness of the prosecution PW3 Khajan Singh (injured witness) State Vs. Upender & Ors. SC 75 of 2012 101/112 ID No. 02403R0000861996 has also not named accused Gyaneshwar Sinha and Akram Jameel either in his examination in chief or crossexamination.
143. As per the case of prosecution statement of deceased Rambir Ex PW14/A was recorded on 20.09.1991 while he was admitted in Safdurjung Hospital, Even deceased Rambir in his statement Ex PW14/A has not named accused Gyaneshwar Sinha and Akram Jameel. Two other witnesses Umed Rana (PW4) and Pratap Singh (PW7) were also examined by the prosecution in support of proving apprehension of accused Gyaneshwar Sinha and Akram Jameel at Moti Bagh Picket. PW4 Umed Rana has given a different number of jeep as DDV4310. He stated that at on 03.09.1991 at 10.15 AM, he saw two open Jeep in the parking of the college whereas the incident at had taken place at about 2 p.m. There were material contradictions in the statements of PW4 Umed Rana and PW7 Pratap Singh. PW7 Pratap Singh was from the village of deceased Rambir. PW7 Pratap Singh was admittedly not a student of ARSD College. Umed Rana (PW4 ) and Pratap Singh (PW7) are not even the witness of seizure memo of jeep (Ex.PW/20A) or to the seizure memo of motorcycle No. DMI2196. Pratap Singh (PW7) in his cross examination stated that he signed on one or two papers at the time apprehension of those persons at Moti Bagh Police Picket when he was shown record, there was no such paper on the record bearing his signatures. Pratap Singh (PW7) stated that his statement was recorded at police picket and he signed the same. Ld. Addl.P.P. stated that no such statement was available on the record. Thus, this fact that these accused persons were arrested alongwith Zeep No. DDV4310 has not been proved. Arrest of Surinder Singh Gosain at Moti Bagh Chowk
144. Umed Rana (PW5) deposed that the motor cyclist was apprehended by the State Vs. Upender & Ors. SC 75 of 2012 102/112 ID No. 02403R0000861996 police official after taking lift from a passenger because in the meantime there was a green signal for the traffic leading towards AIIMS, The police official stopped the motorcyclist after about some distance and brought the motorcyclist back to the police picket.Partap singh (PW7,) testified that in the mean time a Yamaha motor cycle the number of which was DNI 2196 came from the side of Dhaula kuan and Umed Rana told the police officials that the person sitting as pillion on the motor cycle was also involved in the shooting incident. In the meantime due to the green signal the motor cyclist crossed the intersection of Moti Bagh and a police official chased the motor cyclist after taking lift. After sometime, the said police official brought the person who was sitting at the pillion on the motor cycle to the police post.Ct. Ashok Kumar (PW32) deposed that as there was a red light on the crossing at Motibagh the motor cycle was stopped on the red point itself and they did not have to chase the motor cycle to apprehend the accused. Sunil Sharma (PW 35) deposed that about 10 years ago date and month he did not remember and he was going on my motor cycle No. DNI 2196 towards Lajpat Nager via Dhaula kuan. He deposed that towards Lajpat Nagar, there was a barrier at the distance of half km from Dhaula kuan and on the barrier PCR van was present and police officials from PCR stopped him and they asked about his documents regarding the motor cycle. On that day, the Surender was also with him since morning on his motor cycle. His motor cycle and Surinder was detained by the PCR police officials . He was permitted to bring the original papers of motor cycle. On the next day, he went to the P.S. Puram where police officials asked him to sign some blank papers but he refused as SHO was not present in the Police station. Accordingly to him, his motor cycle was seized by the police which was later on released to him on State Vs. Upender & Ors. SC 75 of 2012 103/112 ID No. 02403R0000861996 superdari .Sunil Sharma (PW35) in cross examination deposed that Surender Singh was his friend and as such with him since morning on the day when they were stopped by the police. Surender singh was continuously with him throughout the day i.e. since morning to the time when the police stopped his motor cycle at the check post barrier. During that period, Surinder Singh did not leave his company at any time. Police officials from PCR at the barrier was specially stopping the two wheelers most specifically the motor cycles. No public person or college student was present at that police barrier where his motor cycle was stopped by the police. PW35 asked about the Surender when he went to the Police Station alongwith the papers of his motor cycle and he was informed by the police at Police Station R. K. Puram that as he did not bring the original papers of the motor cycle they had arrested the Surinder on suspicion to which he had protested.
145. IO/Inspector Chander Mohan (PW43) in cross examination deposed that Sunil Sharma who was driving the motor cycle, as a witness and had not cited the owner of the motor cycle no DNI 2196. He admitted that Sunil Sharma was the owner of the motor cycle and he had got the motor cycle released on supurdari. Constable Ashok Kumar (Pw 32) deposed that SHO Inspector Chander Mohan asked about the name and address of the person driving the motor cycle and also asked for the documents.i.e registration etc. of the motor cycle from that person, In his presence, the driver of the motor cycle produced the papers regarding the motor cycle to the SHO. But the motor cycle was taken to the P.S. by the S.H.O. but the person who was driving the motor cycle was permitted to leave. In the present case, Ld. Prosecutor failed to seek permission of the Court to cross examine Sunil Kumar (PW35), therefore, the testimony of PW35 that Surender Singh was his friend and State Vs. Upender & Ors. SC 75 of 2012 104/112 ID No. 02403R0000861996 as such with him since morning on the day, can be relied upon by the defence. In Javed Masood and anr. Vs State of Rajashthan 2010, Cri. L. J. 2020 (SC), it has been held that the evidence of those witnesses which does not support the prosecution but support the defence, can be relied upon by the defence. Thus, this fact that accused Surender Singh ran away from the place of occurrence on a motorcycle stands falsified and disproved.
Genesis of the occurrence and involvement of Prashant Nagar withheld
146. Perusal of record shows that nomination form for students union election were to be filled and many students were coming and going in the college. There is no doubt that absence of motive does not leads to the contrary conclusion but in that case, evidence has to be closely scrutinized. In the facts and circumstances of this case, shows that, it is not a case where, there are no background facts leading to the quarrel. Alleged statement of Rambir (deceased) recorded u/s 161 Cr.P.C on 20.09.1991 by the IO, shows that on 03.09.1991, one Kamal met Rambir (deceased), who was studying in the college and when along with Kamal reached near staircase, there Prashant Nagar along with 810 boys in which Umed Rana, Devender @ Garner, Dinesh, Hari Om, and Surender, he already knew, were standing. He along with Kamal went there Prashant Nagar and inquired from him and why there was so much crowd to which Prashant Nagar questioned him why, he was asking and who he was and he told him that those boys had come to get his form filled. He told him what outsider boys were doing inside the college and asked them to take these boys outside. On this all boys along with Prashant Nagar went away stating that he would come to know after some time "hum kisi ko zinda nahin chodte chale gaye" and then, they left the college. Thereafter, only the alleged incident occurred at 02:00 State Vs. Upender & Ors. SC 75 of 2012 105/112 ID No. 02403R0000861996 pm. This background is also noted in the charge sheet, in brief. Admittedly, Prashant Nagar who was the son of Rajpal Nagar, SHO was interrogated by the IO. Prosecution has not led any evidence and has not thrown any light on this genesis and the background about the quarrel. In the cross examination I.O(PW43) has admitted that Prashant Nagar was also interrogated in connection with this case. He was interrogated because his name had surfaced in the quarrel which had taken place before the incident and this incident had taken place about 2 hrs prior to the present incident. No DD entry or information in this regard was recorded or received respectively. The fact of earlier incident came to his notice during investigation of the case. He could not specify date on which the student Parshant Nagar was interrogated. The name of father of Parshant Nagar is Sh. Raj Pal Nagar. He came to light during investigation the Raj Pal was known to me. He came to know during investigation that Raj Pal was his collegue. However, He could not tell as to whether he was posted as Inspector Incharge South West/ Special Staff at Dhoula Kaun. He was also of the rank of Inspector. He did not recollect now as to if at that point of time he was posted in Dhaula Kuan or not; as far as he recollect, he had received the communication from DCP office to the effect that Sh. Prashant Nagar was feeling insecure because of this incident and had requested for security. The witness was shown a photocopy of the letter written by DCP South West to DCP East District and the witness stated that it was the same letter which he had received from DCP. PW43 stated that this document should not have been with the accused. The letter is (Ex.PW43/DJ). Witness had been shown a photocopy of letter written by Prashant and the witness has stated that he had received the same. The photocopy is (Ex.PW43/DK). The witness had been shown the photocopy of State Vs. Upender & Ors. SC 75 of 2012 106/112 ID No. 02403R0000861996 nomination form of Prashant Nagar and the witness has stated that this fact had also surfaced during investigation. Copy of letter is Ex.PW43/DL. There is no explanation as to why Kamal has not been examined, who could have thrown light on the quarrel which appears to be the background of alleged incident which took place at 02:00 pm. Record shows that Prashant Nagar, (who was son of SHO and was colleague of IO) had come to fill nomination form for students union election and was questioned by Rambir (deceased) as to why he had brought outsiders and it was he,who appears to be behind the quarrel. Thus, there is no explanation as to why Kamal has not been examined, as a witness and why Prashant Nagar, who was the root cause of the entire quarrel is totally kept out of the picture. When the totality of evidence on record is considered, proving this genesis of the occurrence was crucial, which for the reasons best known to the prosecution is not proved. Thus, this important link in the evidence has been withheld by the prosecution. Conclusions
147. To sum up, on appreciation of the evidence as a whole, this Court finds that prosecution has failed to bring home the guilt of the accused persons beyond reasonable doubt.
148. In Ashish Batham Vs. State of MP, 2002 SCC (Cri.) 1718, Hon'ble Supreme Court observed that the fundamental and basic presumption in the administration of criminal law and justice delivery system is the innocence of the alleged accused and till the charges are proved beyond reasonable doubt on the basis of clear, cogent, credible or unimpeachable evidence, the question of indicting or punishing an accused does not arise, merely carried away by the heinous nature of the crime or the gruesome manner in which it was found to have been committed. Mere State Vs. Upender & Ors. SC 75 of 2012 107/112 ID No. 02403R0000861996 suspicion, however strong or probable it may be is no effective substitute for the legal proof required to substantiate the charge of commission of a crime and graver the charge is, greater should be the standard of proof required. Courts dealing with criminal cases at least should constantly remember that there is a long mental distance between "may be true" and "must be true" and this basic and golden rule only helps to maintain the vital distinction between "conjectures" and "sure conclusions" to be arrived at on the touchstone of a dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case as well as quality and credibility of the evidence brought on record. Prosecution has failed to establish the exact cause of death.
149. No postmortem on the deceased has been conducted; Doctor, who gave the opinion about the cause of death as broncho pneumonia, has testified that the said ailment could be without any injury on the person of the deceased. Admittedly, the relatives of the deceased namely, Ramphal (PW14) and Hari Singh (PW30) have failed to inform the police about the death of Rambir in Albega hospital on 16.10.1991. As a result of which, neither postmortem on the dead body could be conducted nor the alleged embedded bullet which was in the body of the deceased, could be extracted. The dead body was cremated on the next day, only then, police reached at the spot and the burnt bullet was recovered from the body of the deceased. Due to lapse on the part of the relatives of the deceased in not furnishing the timely information about the death of the victim, the important evidence was destroyed and the true facts could not be placed before the Court.
150. Presence of complainant (PW2), the alleged eye witness at the time of occurrence is highly doubtful. His conduct was not natural and highly improbable, State Vs. Upender & Ors. SC 75 of 2012 108/112 ID No. 02403R0000861996 as he left the spot 03:00pm despite being close to the victim. He did not accompany him to the hospital. He did not inform any of his family members. Testimony of Khazan Singh (PW3) is also unreliable. Even otherwise, PW3 was not a witness to the incident. According to PW3 himself, he reached at the spot only after hearing the sound of the firearm. He was declared hostile and totally contradicted himself by denying whatever he had stated in his examination in chief. He appears to be a tutored witness and seen as a whole, his testimony is not worthy of credence to base conviction of the accused persons. Moreover, Pradeep Kumar (PW2) and Khazan Singh (PW3) were involved in many criminal cases and were facing trial together. Even during cross examination, PW3 was produced from judicial custody. In letter (Ex. PW1/D1), report given by the Principal (PW1) to the police, it is mentioned that one person was injured. It does not say a word about second injured.
151. None of assailants are mentioned in medicolegal certificate (MLC) despite the fact that assailants were known to the victim and Rajesh (PW5), who took deceased to hospital has not named assailant or even uttered that victim told about the names of assailants, soon after the incident.
152. In State of U.P Vs. Mushtaq Alam, 2007 (3) JCC 2203 SC, PW1 accepted that he had not accompanied the deceased to the Hospital and waited at the spot for about forty minutes to lodge the FIR. Thus, it was observed that the conduct of the witness is unnatural. In normal course, he would have either accompanied the deceased. Keeping in view the antecedents, conduct and unreliable testimony of Pradeep Kumar (PW2) and Khazan Singh (PW3), it will not be safe to convict the accused persons on its basis.
153. In State of Maharashtra Vs. Raju Bhaskar Potphode, 2007 (3) JCC 2298 SC, State Vs. Upender & Ors. SC 75 of 2012 109/112 ID No. 02403R0000861996 accused was convicted by the Trial Court u/s 302 IPC, placing reliance on the evidence of PW2. In appeal accused was acquitted by the Hon'ble High Court observing that his presence at the time of occurrence was highly doubt full and that his conduct was not natural and trustworthy. The Hon'ble Apex Court found that the reason did not suffer from any infirmity to warrant interference.
154. It is true that dying declaration is a substantive piece of evidence to be relied on, provided it is proved that same was made by the deceased and was voluntarily and truthful and further that victim was in a fit state of mind. Dying declaration must inspire confidence so as to, make it safe to act upon it. Court has to properly weigh and consider the cumulative effect of the evidence to arrive at a proper conclusion. In this case, there is not only doubt about the fact that victim was 'fit to make statement' on 20.09.1991, but there is also suspicion whether he did make any statement to the IO and also whether he remained admitted or was present in Safdarjung Hospital on 20.09.1991. There is no explanation why his statement was not recorded on 03.09.1991, when he was conscious and oriented and also on 06.09.1991, or when he was discharged from RML Hospital on 17.09.1991. There is no explanation at all as to why his statement was not recorded by Magistrate or doctor or in the presence of any doctor or nurse or attendant. There are two alleged signed statements of Rambir on record. One is (Ex.PW43/A) which is recorded by the IO u/s 161 Cr.P.C and other is (Ex.PW14/A), wherein brother of deceased (PW14) made an endorsement at point A. There is no reference of the statement in the case diary and PW43 Chander Mohan admitted during crossexamination, that there was no reference in the case diary dated 20.09.91, regarding the statement. Evidence on record indicates that in all probability Investigation Officer (PW43) State Vs. Upender & Ors. SC 75 of 2012 110/112 ID No. 02403R0000861996 introduced Ramphal (PW14), brother of victim, as a false witness for endorsing dying declaration of deceased involving accused.
155. In Chand Singh, Ram Narain & Another Vs. State, 1991 JCC 116, it was a case u/s 302 IPC. It was held that all the eyewitnesses have their own criminal past and their evidence was full of contradictions. Dying declaration was recored by the IO himself and not time was mentioned and the Doctor did not verify the fitness of the deceased. It was held that such dying declaration cannot be accepted. Furthermore, keeping in view of the antecedents of the eyewitnesses and their criminal past, it was observed that they are found to be comrade of the same flock. Their evidence was contradictory and their conduct after incident was unnatural. It was observed that clearly they had not even seen the incident and were introduced by the prosecution later on. Therefore, such witnesses were unable to be relied upon. Observations made in the aforesaid case are squarely applicable to the instant case. There were hundred of students in the college at the time of allged incident and none of the independent student, who chased accused Upender has been examined. There are material contradictions in the testimony of witness, as regards arrest of accused persons as well as the fact that the accused persons ran way in a jeep No. DDV4310 and motorcycle No. DMI2196 or santched motorcycle No. DLIS3909 and were apprehended at Moti Bagh Chowk. It has not been established, beyond doubt that all accused were present in the college or formed an unlawful assembly or that they knew each other or shared any common intention or object.
156. Copies of complaint are not shown to have been sent to the Ilaka Magistrate. There is no explanation as to why Kamal has not been examined and why Prashant Nagar, who was an important link in the chain is totally kept out of the prosecution State Vs. Upender & Ors. SC 75 of 2012 111/112 ID No. 02403R0000861996 story. Recovery of the pistol and cartridges at the spot is highly doubtful. Witnesses have taken shifting stands. It is obligatory for the Court to ensure that prosecution has come up before the Court with the whole and unvarnished truth. In this case, prosecution has suppressed the genesis of the quarrel and have withheld important witnesses, there is manipulation in the FIR, relatives of the victim withheld and did not inform the police about the death of the victim due to which postmortem could not be conducted. Incriminating circumstances have not been established by reliable and clinching evidence. Accused persons seems to have been roped in merely on suspicion and the story of prosecution is built on material placed on record which seems to be neither the truth nor wholly the truth.
157. The benefit of doubt must always go in favour of accused. On consideration of the evidence discussed above, this Court is of the view that prosecution has failed to establish the charges against the accused beyond reasonable doubt and accused are entitled to benefit of doubt. In the result, accused persons, namely, Upender, Surinder, Devinder, Dinesh, Hari Om Yadav, Gyaneshwar Prasad Sinha, Akram Jamil and Inderjeet are hereby acquitted from the charges. File be consigned to record room.
announced in the
open Court (VINAY KUMAR KHANNA)
rd
23 August, 2012 Additional Sessions Judge04
(South-East) Saket/New Delhi
State Vs. Upender & Ors. SC 75 of 2012 112/112