Delhi High Court
Pranav vs The State Of Nct Of Delhi on 18 December, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRIMINAL APPEAL NO. 1450/2012
Reserved on: 24th September, 2015
% Date of Decision: 18th December, 2015
PRANAV ....Appellant
Through: Mr. Deepak Gupta, Advocate.
Versus
THE STATE OF NCT OF DELHI ...Respondent
Through: Mr. Varun Goswami, APP along with
Inspector Jitender Kumar, PTS Dwarka, SI
Pratap Singh, P.S. Uttam Nagar & Head
Constable Rad Ram, Uttam Nagar.
CRIMINAL APPEAL NO. 161/2013
RAKESH ....Appellant
Through: Mr. Mohit Mathur, Sr. Advocate with
Mr. Manoj Pant & Mr. Sharukh Hussain,
Advocates.
Versus
STATE (GOVT. OF NCT OF DELHI) ...Respondent
Through: Mr. Varun Goswami, APP for the State.
CRIMINAL APPEAL NO. 122/2013
BHARAT ....Appellant
Through: Ms. Inderjeet Sidhu, Advocate.
Versus
STATE (NCT OF DELHI) ...Respondent
Through: Mr. Varun Goswami, APP for the State
Crl.A.No.1450-2012 & Ors... Page 1 of 32
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
SANJIV KHANNA, J.
1. The subject matter of challenge in Criminal Appeal No.1450/2012 [Pranav
Vs. State of NCT of Delhi], Criminal Appeal No.161/2013 [Rajesh Vs. State
(Govt. of NCT of Delhi)] and Criminal Appeal No.122/2013 [Bharat Vs.
State (NCT of Delhi)], is the judgment dated 12th December, 2002,
convicting the appellants Rajesh and Pranav under Sections 307/186/353 of
the Indian Penal Code, 1860 (IPC for short) and Section 25 of the Arms Act,
1959 and the appellant Bharat under Section 216-A of the IPC.
2. The aforesaid conviction arises out of the charge sheet filed in FIR
No.121/2002, P.S. Uttam Nagar registered under Section
307/186/216A/353/468/471/34 IPC and under Section 27/54/59 of the Arms
Act. The said FIR was registered on the basis of a statement made by S.I.
Raj Kumar of the Special Staff and relates to a police encounter in the
intervening night between 3rd and 4th of March, 2002 on the second floor of
House No.704, Janta Flats, Hastal, Uttam Nagar, where the police team had
gone in search of and to locate and apprehend perpetrators of the crime of
murder and heist, subject matter of FIR. No. 62/2002, Police Station Anand
Parbat. As per the prosecution case, one Sanjeev Verma had died in the
police encounter and the three appellants Rakesh, Pranav and Bharat were
arrested.
3. The appellants Rakesh and Pranav by the order on sentence dated 15th
December, 2012 have been sentenced to undergo rigorous imprisonment for
a period of four years, fine of Rs.5,000/- and in default to undergo simple
imprisonment for six months for the offence under section 307 IPC; rigorous
imprisonment for three months, fine of Rs.5,000/- and in default of payment
of fine, to undergo simple imprisonment for 10 days for the offence under
section 186 IPC; and rigorous imprisonment of two years, fine of Rs. 3,000/-
and in default of payment of fine to undergo simple imprisonment of three
months for the offence under Section 353 IPC. For the offence under
Section 25 of the Arms Act, appellants Rakesh and Pranav have been
sentenced to undergo rigorous imprisonment of three years, in addition to
fine of Rs.1,000/- and in default of payment of fine to undergo simple
imprisonment for one month. Bharat has been sentenced to rigorous
imprisonment of one year, fine of Rs.10,000/- and in default of payment of
fine to undergo simple imprisonment of three months for the offence under
Section 216A IPC. The sentences would run concurrently and it is observed
that Section 428 of the Code of Criminal Procedure, 1973 (Cr.P.C.) would
apply.
4. In terms of orders dated 14th February, 2012 and 5th August, 2014 in Appeal
No.149/2013, filed by Vijay @ Rajesh, Criminal Appeal No. 160/2013, filed
by Rakesh and Criminal Appeal No. 162/2013, filed by Om Prakash, the
present set of Criminal Appeal No. 161/2013, filed by Rakesh, Criminal
Appeal No. 1450/2012, filed by Pranav and Criminal Appeal No. 122/2013
filed by Bharat were listed and have been decided by this bench. We had
accordingly heard arguments in the two sets of appeals and, by separate
judgments pronounced today, are disposing of the two sets of appeals.
5. Criminal Appeal No. 149/2013, filed by Vijay @ Rajesh, Criminal Appeal
No.160/2013, filed by Rakesh and Criminal Appeal No. 162/2013, filed by
Om Prakash, arise out of the charge sheet filed in FIR No.62/2002, police
station Anand Parbat involving murder of Mohan Lal Bansal as a result of
gunshot wound and robbery of Rs. 25,00,000/- on 28th February, 2002.
6. The prosecution case in the present set of appeals is primarily predicated on
the occural testimonies of police officers. We begin by examining the
testimony of SI Raj Kumar (PW-25), who has deposed that at about 8:30
p.m., he along with S.I. Rajesh Kumar, ASI, Jai Bhagwah, ASI Kanwar Pal,
Head Constable Mukesh, Head Constable Mahavir, Constable Bachu Singh,
Constable Laxman and others, in search of Sanjeev Verma and Rakesh who
were wanted/ required for interrogation, had visited house No.704, Janta
Flats, Hastsal, Uttam Nagar, Delhi. They had knocked at the door on the
first floor, where they met and spoke with one of the appellants, Bharat. The
said Bharat took the police team to the second floor, where Bharat knocked
at the door, and spoke in coded words. The door was opened by Sanjeev
Verma, who on realizing that the police had come, started grappling. Two
other persons, present in the room on the second floor, thereupon took out
two fire-arms from under the pillows and started firing. The police team
retaliated and fired in self-defence. Sanjeev Verma was injured as a result of
the firing and died. The appellants Pranav and Rakesh, who were the other
persons in the room, were arrested. The appellant Rakesh injured his leg
when he ran down the stair-case and fell. Bharat was also arrested, while he
was trying to flee.
7. Two fire-arms i.e. a pistol each from Pranav and Rakesh were recovered and
sketches, marked Ex.PW-4/F and PW-4/C respectively, were drawn. These
fire-arms were taken into possession vide seizure memos, Ex.PW-4/G and
Ex.PW-4/E respectively. A revolver used by Sanjeev Verma (since
deceased) with five used cartridges and one live cartridge was taken into
possession vide seizure memo Ex.PW-4/D and a sketch of the revolver
marked Ex.PW-4/B was prepared. SI Raj Kumar (PW-25) identified the
pistol recovered from Rakesh as Ex.PW-4/PX1; pistol recovered from
Pranav as Ex.P-1 and the revolver which was used by Sanjeev Verma (Since
deceased) as Ex.P-2. 11 empty or fired cartridges of uniform shell size lying
in the balcony outside the room, were sequestrated vide seizure memo
Ex.PW-4/L. They were identified in the Court and marked Ex. PW-4/ PX3
to 13. Another set of 11 used cartridges, of varying shell size, were also
found and seized vide seizure memo Ex.PW-4/M. These were identified and
marked in the court as Ex. PW-4/PX4 to 14. 12 leads were also seized vide
seizure memo Ex.PW-4/M and identified and marked in Ex- PX5-26. Pages
of Nav Bharat Times dated 1st March, 2002 with blood stain were seized
vide seizure memo Ex.PW-4/L, were identified and exhibited as PX2.
8. The aforesaid occurrence and the arrest of the three appellants is
affirmatively, and emphatically, deposed to by Inspector J.L. Meena (PW-
21), Head Constable Mahavir Singh and Head Constable Bachu Singh (PW-
26) and finds collaboration and reinforcement in the testimonies of S.I.
Jitinder (PW-4), Constable Rambir (PW-7), Head Constable Shoki Sahni
(PW-23), Inspector Rajbir Sharma (PW-17) and Dr. Bhavna Saxena (PW-
24), Medical Officer, DDU Hospital. We shall also refer to the autopsy
report of Dr. L.K. Baruah (PW-2) and Dr. M.M. Naranaware (PW-8).
9. To avoid prolixity, we are not in detail referring to the almost identical
versions given by Head Constable Mahavir Singh (PW-22) and Head
Constable Bachu Singh (PW-26) and limit ourselves to significant assertions
made by them as members of the raiding party. PW-26 and PW-22 who had
visited house No.704, Janta Flats, Hastsal, Uttam Nagar, Delhi at 9:45 p.m.
on 3rd March, 2002 have scenically narrated and described the firing
incident. Head Constable Mahavir Singh (PW-22) had remained down-
stairs and had apprehended the appellant Bharat, when he attempted to exit
the building. Appellants Rakesh and Pranav were also apprehended. The
fourth occupant of the house, Sanjeev Verma was found lying injured in the
room and was taken to hospital in the PCR van. Local Police came to the
spot. Head Constable Bachu Singh (PW-26) has testified that two groups
were formed, and he was a member of the team headed by S.I. Raj Kumar
(PW-25). Inspector J.L. Meena (PW-21) was the incharge of the second
team. It was S.I. Raj Kumar (PW-25) who had knocked at the door of the
first floor flat and had spoken with Bharat, who had proclaimed that he did
not know Sanjeev Verma and Rakesh or their whereabouts. However, on
further inquiry, Bharat had revealed that some tenants were residing on the
upper floor. S.I. Raj Kumar (PW-25) and Bharat had proceeded to the
second floor where Bharat had knocked at the door, which was opened by
Sanjeev Verma. Two more persons namely, Rakesh and Pranav were also
present in the room. The threesome had fired at the police party. The police
team, to save themselves, had clambered underneath the window and had
warned the three not to fire and to surrender. As the three continued to fire,
SI Raj Kumar had fired in retaliation, while still urging that the three should
surrender. In the retaliatory fire, one person inside the room had sustained
injuries. This person was later identified as Sanjeev Verma. Rakesh had
slipped while trying to run downstairs and sustained injuries on his right leg.
Rakesh was apprehended by the Head Constable Bachu Singh (PW-26) and
Constable Yatender and a pistol made in China, marked Ex. PX1, was
recovered from him. Pranav was also apprehended and, from him, one pistol
with the marking Browning Bulgeria 9 mm was recovered. One revolver,
marked Ex. PX2, with five used bullets, marked Ex. PX2/1-5, and one live
cartridge, marked PX6, were recovered from Sanjiv Verma.
10. The said witnesses also identified the newspaper dated 1st March, 2002, 11
empty shells comprising of 7 shells of 9 mm and 4 shells of 7.62 x 25 and
12 leads of used bullets recovered from inside the room and 11 empty
cartridges found lying in the balcony. Local police from the Police Station
Uttam Nagar was called.
11. S.I. Jitinder (PW-4) avers that DD Entry NO.40B Ex.PW-4/A, recorded at
about 10:15 p.m. on 3rd March, 2002, was assigned to him for investigation
and he had proceeded to the flat in question at about 10.30 p.m. PW-4 had
prepared the sketch of the revolver PW-4/B along with the cartridges; the
sketch of the pistol Ex.PW-4/E; and the sketch of another pistol Ex.PW-4/F.
Two pistols and one revolver were taken into custody. At the behest of the
appellant, Rakesh and pursuant to his disclosure statement, marked Ex.PW-
4/P, Rs.1.65 lacs was recovered from his house at No.C-195, Amar Colony,
Nangloi, Delhi. This money was kept in a box and concealed in the diwan.
The money consisted of 16 wads of denomination Rs.100 and one wad of
Rs. 50 denomination with slips of Federal Bank. The currency notes were
sealed and taken into possession vide seizure memo Ex.PW-4/Q and a
photocopy of these notes marked Ex.PW-4/PX-28 (Colly) were identified by
PW-4. On reaching the spot, PW-4 had seen Sanjeev Verma (since
deceased) being removed to the hospital. When PW-4 had learnt that
Sanjeev Verma had expired, he had filled up the inquest form, marked
Ex.PW-4/R, and moved the autopsy application, Ex.PW-4/V, with the
request for constitution of a Medical Board vide application Ex.PW-4/W. A
motor cycle, marked Ex. PW4/Y, was also seized. PW-4 identified the pistol
(Ex.P-1), recovered from Pranav, the pistol (Ex.PW-4/PX1) recovered from
Rakesh and the revolver (Ex.P-2), statedly recovered from Sanjeev Verma
(since deceased). The vest and shirt worn by Sanjeev Verma (since
deceased) were taken into possession by S.I. Jitinder (PW-4) from Constable
Dinesh in the sealed parcel vide Ex.PW-4/R; these clothes were marked P-1
and P-2. PW-4 has accepted as correct that photographs of the place of
occurrence, marked Ex.PW-21/DX1 were taken on his instructions. One
photograph is of some importance in view of the contention raised that no
blood spill was to be seen in the said room. We shall deal with this
contention subsequently.
12. It is clear from the testimony of PW-4 that he had not seen the firing or the
encounter but had visited the place of occurrence immediately after the said
encounter. Inspector J.L Meena (PW-21)‟s deposition is on the identical
lines and affirms the statement of S.I. Jitinder (PW-4). PW-21 had inspected
the site in question at about 10:45 p.m. when S.I. Jitinder Kumar (PW-4)
was already present and had noticed leads, used cartridges and the blood
stained newspaper. In his presence, S.I. Raj Kumar (PW-25) had handed
over one revolver made in USA to S.I. Jitinder (PW-4), stating that the same
had been recovered from Sanjeev Verma (since deceased). On checking the
revolver, five used cartridges and one live cartridge was found in the
chamber. Two pistols were also handed over by S.I. Raj Kumar (PW-25) to
S.I. Jitinder (PW-4). S.I. Jitinder Kumar thereafter had prepared the Rukka
and had sent the same for registration of the FIR. PW-21 has also affirmed
that 7 used cartridges had the markings KF 9mm engraved thereon and four
cartridges were embossed with the markings 7.62x25 and bullet leads were
seized. PW-21 in his court testimony has identified the revolver, pistols and
the cartridges etc. By the time PW-21 had reached, Sanjeev Verma (since
deceased) had been taken to the hospital for treatment. He affirmed that the
appellant Rakesh had suffered injuries on his leg and was also sent to a
hospital for treatment but could not tell the time.
13. Head Constable Shoki Sahni (PW-23) had received a phone call on 3rd
March, 2002 at about 10:09 p.m. from police control room, to proceed to
house No.704, Janta Flats, Hastal, Uttam Nagar, Delhi, as firing had taken
place there. On reaching the spot, he had met S.I. Raj Kumar (PW-25) and,
on his instructions, had taken an injured and unconscious person to the
hospital. In his cross-examination, PW-23 clarified that he had seen the
injured person on the second floor of the said Janta Flat, but could not recall
how many injured persons were present at the spot.
14. Dr.Bhavna Saxena, Medical Officer, DDU Hospital, deposing as PW-24, has
stated that she had examined one unknown male patient aged about 25 years
at 11:15 p.m. on 3rd March, 2002 and had prepared the MLC Ex.PW-24/A.
The patient was declared „brought dead‟ and the body was sent for a post
mortem examination.
15. Questioning arrest and the encounter at flat No.704, Janta Flats, Hastsal,
Uttam Nagar, Delhi, the following contentions have been raised by the
appellants:-
(1) Public witnesses were not joined and have not deposed about the
encounter, arrest and recovery;
(2) Police versions are contradictory. Head Constable Bachu Singh (PW-
26) has deposed that Inspector J.L. Meena was a member of the
raiding team, whereas the Inspector J.L Meena (PW-21) himself states
that he was not a member of the raiding team.
(3) The impugned judgment does not refer to the defence witnesses
namely, Jagbir Singh (DW-1), Om Prakash (DW-2), Vijay Dutt (DW-
3), Head Constable Vinod Kumar (DW-4), Mukesh (DW-5),
Constable Hari Om (DW-6), R.K. Dubey (DW-7), Head Constable
Prahlad (DW-8), Suraj Bhan Chauhan (DW-9), Rajnish Kumar (DW-
10) and Raj Kishore (DW-11) and the contention of the defence that
appellant Pranav was detained in the evening of 3rd March, 2002 and
falsely implicated, appellant Rakesh was picked and detained at about
12 / 12:30 p.m. on 4th March, 2002 by Nangloi Police and Rakesh was
tortured as a result of which he had suffered fracture of his legs.
Rakesh was taken to the Tagore Garden Office of the Special Staff.
Appellant - Bharat‟s assertion is that he was lifted by the police
officers from his house and taken to police station Rajouri Garden and
then the Police Station Uttam Nagar on 3rd March, 2002.
(4) The alleged encounter resulting in death of Sanjeev Verma, is false
and fabricated. One of the photograph marked Ex. PW-21/DX1 and as
per the police version only one drop of blood on the piece of
newspaper could be seen and was found at the spot. Blood had not
spilled and spread in the entire room. This factual position stands
accepted by Jitinder (PW-4) and Head Constable Bachu Singh (PW-
26) in their depositions. If this was a case of genuine encounter and
Sanjeev Verma had actually suffered the gun-shot injuries at the spot,
blood spillage and splashes should have been visible on the floor,
walls etc.
(5) MLC discloses and shows blackening, therefore, the assertion that the
firing from a distance of 10 ft. as deposed by S.I. Raj Kumar (PW-25),
was a wrong avowal and a false statement. Sanjeev Verma (since
deceased) was shot from a near point blank range. It is not a case of
firing in self-defense. None of police officers had suffered any injury,
whereas Sanjeev Verma (since deceased) had sustained four bullet
injuries, on vital parts of his body. For the said reasons, conviction
under Section 307 IPC and other offences cannot be sustained and is
contrary to law.
(6) There was delay in sending the weapon of offence and fired cartridges
and bullets for forensic examination to the forensic science laboratory.
Weapons etc. were sent for examination nearly 51 days after the
occurrence on 4th March, 2002 and were received in the laboratory on
24th April, 2002. The FSL report, Ex.PW-1/A, is dated 24th March,
2003.
(7) FSL report mark Ex.PW-1/A does not support the prosecution case, as
recovered used leads or bullets EV-2 to EV-7 of 9 mm do not match
with the pistols recovered from the appellants. FSL report Ex.PW-
1/A opines that a country-made pistol was examined, whereas the
prosecution witnesses have testified about recovery of foreign made
pistols. Seizure memo of the pistol Ex.PW-4/G in the case of Pranav
does not have his signatures.
(8) There was delay in recording of FIR which was registered at 2:40 a.m.
on 4th March, 2002, whereas the occurrence had taken place at about
9:45 p.m. on 3rd March, 2002.
(9) Head constable Mukesh (PW-18) had appeared before the court to
testify, but his testimony was not recorded and was given up as an
unnecessary witness. Failure to record his testimony would justify an
order of acquittal, as the seizure of the weapon of offence from the
appellant Pranav was not proved.
(10) The weapon of offence i.e. the pistols or the revolver were not
examined by a finger print proficient.
16. We begin with the primary contention raised before us that no blood stains
or spill was found in the room in question and only a drop of blood was
noticed on the newspaper. The said assertion is factually correct and had
bothered and was an aspect that had confronted and was of concern. After
the judgment was reserved on 27.03.2015, we came across certain passages
in Modi‟s Medical Jurisprudence and Toxicology, 23rd Edition at page 761.
As the said passages had not been referred to us during the course of
argument of the present appeal and connected appeals, the appeals were re-
listed for hearing and arguments were re-heard and the judgment was then
reserved on September 24, 2015.
17. Counsel for the appellant Rakesh, during the course of hearing had referred
to 24th Edition of Modi‟s Medical Jurisprudence and Toxicology at page 565
under the heading "Differences between wound inflicted during life and
after death", wherein it has been observed:
"........There is copious haemorrhage in all external wounds or those
in a body cavity, except in lacerated wounds, when it may be very
little (sic. bleeding). Sometimes, when the victim dies immediately
from a severe fatal injury and shock, the effused blood is forced into
the tissue interspaces in the vicinity of the wounds, and is found
infiltrated in the cellular and muscular tissues. There is consequent
staining of the edges of the wounds and the neighbouring tissues,
which cannot be removed by washing. The staining caused by the
blood effused from post-mortem wounds is, however, easily
removed by washing......
There will also be signs of spouting of arterial blood on the body,
clothing or its vicinity. It should, however, be remembered that
there may be absence of bleeding following an extensive or fatal
would, in the event of death occurring rapidly or immediately....."
18. The aforesaid passage supports the prosecution case that sometimes in cases
of instantaneous death as a result of severe fatal injuries and shock, effused
blood may infiltrate and collect in the cellular and muscular tissues and not
exude from the body. The Post Mortem Report, marked Ex. PW-2/A, it has
been recorded that the chest cavity was filled with liquid and clotting blood.
Referring to the said passage, two submissions were raised; firstly, the said
text book was not relied and referred to by the two doctors, Dr. K.L. Baruah
(PW-2) and Dr.M.M. Naranaware (PW-8), who had conducted the post
mortem or by Dr.Bhawna Saxena (PW-24) the doctor who had examined
Sanjeev Verma. This was contrary to the mandate of the Supreme Court in
Sunderlal v. State of M.P., AIR 1954 SC 28. Secondly, as per the post-
mortem report marked Ex.PW-2/A, pant (tracksuit pant) and the blue
underwear had blood-stains.
19. In Sunderlal Vs. State of M.P., AIR 1954 SC 28, it was observed that the
High Court for convicting the accused had relied upon certain passages from
a textbook on medical jurisprudence and toxicology, though the said
passages had not been put to the post mortem doctor, when he had testified
in the witness box. The accused had challenged the said adverse conclusion
of the High Court relying upon passages from the textbook. The Supreme
Court had then observed that if the conviction of the accused-appellant was
merely based upon the passages from the textbook, there would be
something to say in his favour. The appeal in the said case was, however,
dismissed after noticing other circumstantial evidence, which it was
observed, was sufficient to uphold the conviction. Decision in Sunderlal's
case (supra) was examined in State of M.P. Vs. Sanjay Rai (2004) 10 SCC
570 and it has been observed as under:-
"17. It cannot be said that the opinions of these authors were given
in regard to circumstances exactly similar to those which arose in
the case now before us nor is this a satisfactory way of dealing with
or disposing of the evidence of an expert examined in this case
unless the passages which are sought to be relied to discredit his
opinion are put to him. This Court in Sunderlal v. State of M.P.;
AIR 1954 SC 28, disapproved of judges drawing conclusions
adverse to the accused by relying upon such passages in the absence
of their being put to medical witnesses. Similar view was expressed
in Bhagwan Das v. State of Rajasthan; AIR 1957 SC 589. Though
opinions expressed in textbooks by specialist authors may be of
considerable assistance and importance for the court in arriving at
the truth, they cannot always be treated or viewed to be either
conclusive or final as to what such author says to deprive even a
court of law to come to an appropriate conclusion of its own on the
peculiar facts proved in a given case. In substance, though such
views may have persuasive value, they cannot always be considered
to be authoritatively binding, even to dispense with the actual proof
otherwise reasonably required of the guilt of the accused in a given
case. Such opinions cannot be elevated to or placed on a higher
pedestal than the opinion of an expert examined in court and the
weight ordinarily to which it may be entitled to or deserves to be
given."
20. In view of the second contention we had called and asked the prosecution to
produce before us the original exhibits i.e. the lower pant and the underwear
of Sanjeev Verma (since deceased). The said exhibits were produced on
24.09.2015 and were physically examined in the presence of the counsel.
Although the Post Mortem Report, marked Ex. PW-2/A, states that the
clothes of the deceased were blood stained, the aforementioned two
garments did not have apparently visible blood stains. There were some
spots or marks on the underwear, but we can state with certainty that the
blood had not oozed and spilled out. Certainly, the track pant does not have
any blood spots or marks. We had also called for the other clothes i.e. the
vest and the shirt which were statedly produced before us, in sealed cover.
As recorded in the order dated 24.09.2015, the counsel for the appellants had
stated that the sealed parcels from the DDU Hospital should not be opened
and examined by the Court as they were not proved before the trial court.
21. The first contention is also without any merit. In the present case we are not
testing or reversing any opinion by an expert witness with reference to a
contrary viewpoint recorded or mentioned in the Modi‟s textbook. Reference
to Sunderlal v. State of M.P. (Supra) would be inappropriate and decision in
Sanjay Rai‟s case is apposite. The medical experts in the present case i.e.
Dr. K.L. Baruah (PW-2), Dr. M.M. Naranaware (PW-8) and Dr. Bhawna
Saxena (PW-24) were not confronted or asked any question on how and why
no blood stains were to be seen on the floor, walls etc. or why only one drop
of blood could be seen in the photographs. Dr. Bhawna Saxena (PW-24)
who had examined the patient immediately after the occurrence at about
11:15 PM on 3rd March, 2002 was the best person to be questioned as to
when the injuries or death had occurred or whether the deceased had been
subjected to torture or was physically abused. She was not questioned on
these aspects. No external injuries or signs of torture, other than the bullet
wounds, were noticed by PW-24. The MLC marked Ex-PW-24/A, or the
post-mortem report, marked Ex.PW-2/A, does not record or mention any
sign or indication of physical torture or abuse. There were two entry and
two exit wounds and not four bullet wounds as suggested. We, therefore,
reject the said contention of the appellants. Relying upon the aforesaid
opinion expressed in Modi‟s Medical Jurisprudence and Toxicology 24th
Edition, we are inclined to and accept the prosecution version and
contention.
22. We are of the view that absence of blood on the walls, floor etc. does not
nullify the prosecution case or establishes that this is a case of a fake
encounter. In Nirmal Singh v. State of Bihar, (2005) 9 SCC 725, a
contention about absence of blood-stained earth at the alleged place of
occurrence was raised, challenging the veracity of the prosecution version.
The contention was rejected, observing;-
"Eyewitnesses explained that on receiving the injury the deceased
pressed his wound with his hands whereafter a piece of cloth was tied
around the wound which soaked the blood which may have come out.
There was, therefore, no likelihood of the earth getting bloodstained.
Counsel for the appellants submitted that the intestines were
protruding as described in the inquest report, and in such a situation
there must have been some bleeding. That may be so, but in view of
the explanation offered by the prosecution witnesses it appears
probable that no blood had fallen on the ground at the place of
occurrence."
In the aforesaid case, the Supreme Court did not reject the prosecution case,
though the blood stained piece of cloth was not produced in the court or sent
for chemical examination.
23. We would now examine other contentions. It is correct that public witness
had not joined investigation or raid team. Albeit, it has to be observed that
raid had to be conducted in secrecy, stealthy and swiftly. It had to be kept
under wrap and executed with deftness, in silence. It would be fallacious and
specious to discard the occural depositions of the police officers, for
purported failure to ask neighbours or other public persons to join the
undercover operations. Moreover, it is apparent that the police had bare and
a few hints and clues, and did not have definitive information on the
presence of the fugitives. Public witnesses invariably would have been
reluctant to join and be spectators with the raiding team. The firing took
place suddenly and had even taken the police raiding team by surprise. We
have noted the factual assertions by members of the raiding team i.e. S.I. Raj
Kumar (PW-25), Head Constable Bachu Singh (PW-26) and referred to the
corroboration in the form of testimonies of Inspector J.L. Meena (PW-21),
SI. Jitinder (PW-4) and Head Constable Shoki Sahni (PW-23). In addition,
we also have the photographs of the spot, which were taken by PW-7
Constable Rambir, who has proved the photographs PW-7/1 - 30 and PW-
7/31 - 60. The last witness had remained at the spot for one and a half
hours.
24. Another important and relevant evidence, is the FSL report Ex.PW-1/A, by
Dr. K.C. Varshney, Senior Scientific Officer, Ballistic Forensic Science
Laboratory, who had appeared as PW-1. In the said report, Ex. PW1/A, and
in his ocular testimony PW-1 has opined, that the two pistols and the
revolver examined, were fire arms. One pistol was of 9 mm caliber; the
second pistol was of .30 caliber and the revolver was of .360 bore. Five
cartridge cases and one live cartridge found in the cartridge case, were of
.360 bore. 7 cartridge cases of 9 mm and 4 cartridge cases of .30 mm and 12
deformed bullets were enclosed in different exhibits. The live cartridge
Ex.A-1 was test fired through a country made revolver Ex.F-3. Examination
of the cartridge case and the test fire bullet, affirmed and demonstrated, that
the recovered cartridges cases, i.e. the cartridge case seized from the scene
of occurrence, Ex.C-1 and C-5 were fired from the seized revolver marked
PW.-4/D. However, individual characteristics of siration marks on the test
fired bullet was found to be insufficient for comparison. Examination of the
breach marks found on recovered cartridges numbered as EC-6 to EC-12
showed that they were fired through pistol F-1 and firing pin marks and
breach face marks on fired cartridges numbered as EC-13 to 16, were
identical with the test fired cartridge, fired from the pistol F-2. However, no
opinion could be given with regard to the cartridges numbered as EVR-6 to
EVR 12 on account of insufficient data. The report also opines that the
bullets EV-2 to EV-7 were not identical to the bullet fired from the pistol F-
1. The aforesaid report does not support the contention of the appellants, as
submitted, but affirms and assures certitude as to the prosecution case. It is
obvious that there was firing from both sides and therefore, all cartridges
cases found and recovered rightly would not correspond and match with pin
or other marks of the test fired cartridges of the recovered revolver or the
two pistols. In fact the report shows that the two pistols and the revolver
were certainly used for firing, as the used/empty cartridge cases had matched
and were linked to the recovered revolver and the two pistols.
25. There was delay in sending FSL report, but the delay in the present case was
not significant or so inordinate so as to constitute a ground to discard the
FSL report marked Ex.PW-1/A. Retired Head Constable Satyapal (PW-9),
the Malkhana Incharge, has deposed that on 4th March, 2002 S.I. Jitinder
(PW-4) had deposited 12 sealed parcels with him with the seal of „RKM‟
and five sealed parcels with the seal of „LKB‟. On 24th April, 2002, four
sealed parcels with the seal of RKM were handed over to Head Constable
Ram Dhari (PW-16) for onward transmission to the FSL and he had made an
entry at serial no.1941 in register No.19, marked Ex.PW-9/A. Constable
Ram Dhari (PW-16) has testified corroborating the deposit of the said
parcels in intact condition in the forensic science laboratory at Malviya
Nagar vide RC 47/21.
26. We do not think the submission that there was tampering of the weapons is
credible and merits acceptance. The said contention is entirely premised on
the FSL report Ex.1/A i.e. opinion of Dr. K.C.Varshney (PW-1), who had
test fired the two pistols and the revolver and has described the revolver as
country made and not as a standard weapon manufactured by a licensed or
recognized manufacturer. It is obvious that the revolver in question was a
sophisticated fire-arm and not a country-made contraption. The drawing
Ex.PW-4/A is instructive. The words „USA‟ were engrossed on the weapon.
Dr. K.C. Varshney (PW-1) had identified the three weapon of offence
including the revolver. Hence, the plea of tampering is devoid of force and
has no foundation.
27. The contention that the prosecution should have called fingerprint proficient
and taken fingerprints on the weapon of offence is to be also rejected as far-
fetched and facetious. The police raiding team had taken the firearms in
their custody and possession, immediately after the encounter and detention
of Rakesh and Pranav. The argument is guileless and unnatural for it is
predicated on the assumption and foundation that the raiding team should
not have dispossessed and disarmed the perpetrators and waited. The ocular
depositions of the members of the raiding team are certain and categorical.
The fact that the sketches and the seizure memos do not bear signatures of
the appellants is again inconsequential. The seizure memos and sketches
have the signatures of S.I. Jitinder (PW-4), SI. Raj Kumar (PW-25) and
Inspector J.L Meena (PW-21), in addition to the signatures of Head
Constable Mukesh.
28. Head Constable Mukesh was summoned and had appeared in the court as
PW-18, but his testimony was not recorded after noticing and recording the
submission that he was an unnecessary witness. As per the prosecution
version, Head Constable Mukesh (PW-18) was a member of the raiding
team. SI Raj Kumar (PW-25) and Head Constable Bachu Singh (PW-26)
have deposed about the raid in detail. The prosecution did not withhold and
give up Head Constable Mukesh. However, as other witnesses had already
deposed on the relevant aspects/ facts, this witness (Head Constable
Mukesh) was not examined to avoid duplication. Section 134 of the
Evidence Act, negates the contention. The section stipulates that no
particular number of witnesses are required for proof of any fact. It is not the
case of the appellants that Head Constable Mukesh‟s version in the
statement under Section 161 Cr.P.C. was distinct and different. In view of
the deposition of the witnesses, PW-25 and PW-26, it was not felt necessary
and mandated that another witness should be examined. In the facts of the
present case, we do not think that failure to record testimony of Head
Constable Mukesh should result in adverse inference or acquittal of the
appellants.
29. With regard to the contention of the appellants regarding the range from
which the deceased was shot, we have examined the MLC Report, marked
Ex. PW-24/A, and the Post Mortem Report, marked Ex. PW-2/A. We find
that the wording of the MLC Report is ambivalent. With regard to the Entry
Point no. 1, it is stated that the „entry point seen bullet over mid-sternum,
margins inverted. No blackening seen around wound over sternum.
Corresponding entry point (semi-circular) seen over vest. Blackening seen
over this point.‟ (emphasis added) With regard to Entry Point no. 2, it is
written „Margin is inverted, corresponding entry point seen over lower part
of shirt- blackening seen over this entry point.‟ The language used in these
portions of the MLC Report is vague and unclear, possibly mentioning
blackening only with regard to the clothes of the deceased. For the exit
points, the MLC records that „no blackening is seen either over shirt or over
wound‟.
30. We have analysed the post-mortem report, which exposits a far more
thorough examination of the wounds present on the deceased. This report
has made a clear note of absence of blackening, charring and tattooing
around the wounds. We have taken note that the puncture wound near the
left hypochondrium exhibited around its margin, signs of burning and
grayish discoloration. However, we are of the opinion that, such
discoloration of the margins of the wound, in and by itself, is not sufficient
of establishing a near-contact firearm injury. We place reliance on the
judgment of the Supreme Court in Mohan Singh v. State of M.P., (1999) 2
SCC 428, where the causes for black margins of wounds are discussed. The
Supreme Court referred to Taylor‟s Principles and Practice of Medical
Jurisprudence, (10th Edition) in distinguishing discoloration of wound
margins from marks present due to gunshot powder. Further, we note that
H.W.V. Cox on Medical Jurisprudence and Toxicology, (5 th Edition), has, in
Chapter 7, under the topic of „Important facts about firearm injuries‟ on page
291, stated that „the presence of clothing may prevent any soiling, burning
etc. of the skin and this must be taken into account when examining a body
which has already been unclothed.‟
31. In case of encounter of this nature, Sanjeev Verma (since deceased) was
initially possibly standing at the door itself or, after receiving the first
firearm injury, moved forward towards the police officers, challenging them.
In view of the aforesaid discussion, we do not accept the contention that the
MLC Report, marked Ex. PW-24/A, and the Post Mortem Report, marked
Ex. PW-2/A, negate or nullify the prosecution version of an encounter
having taken place.
32. The contention that there was delay in recording of the FIR, which was
registered at 2:40 a.m. on 4th March, 2002, whereas the occurrence had taken
place between 9:30 a.m. and 10:00 a.m. on 3rd March, 2002, is fallacious and
flawed. It is noticeable that the firing had taken place and one of the
perpetrators, namely, Sanjeev Verma, being seriously wounded had to be
taken to the hospital. Another, i.e. Rakesh, had also suffered injuries.
Senior Officers had to be informed. The raid in question was conducted by
the Special Cell of Delhi Police, but the FIR had to be registered at the
concerned police station by the police officers of the said station i.e. Police
Station Uttam Nagar. The FIR as per the said document marked DW-11/A
was registered at 2.40 AM. The time gap between the occurrence and the
registration of the FIR is not substantial, in the given facts, to accept and
hold that the FIR was deliberately delayed to introduce and record false facts
and insinuations. Delay in registration of the FIR is matter of concern,
where allegations of cover up, interpolation and fabrication are made to
frame innocents. In the facts of the present case presence of Sanjeev Verma
at the spot in question is certain. As far as Rakesh is concerned, his
contention in defence is that he was lifted at about 12:00 / 12:30 a.m. in the
intervening night between 3rd and 4th March, 2002. Rakesh had suffered
injuries as per the prosecution version when he had tried to escape from
house No.704, Janta Flats, Hastsal, Uttam Nagar, Delhi. Sanjeev Verma
(since deceased) was examined in the hospital at 11.15 PM vide MLC
marked Ex.PW24/A. Appellants Pranav and Bharat were also detained at
the spot itself. Pranav has claimed that he was lifted and detained from his
residence in the East of Kailash in late evening on 3rd March, 2002. The fact
that the occurrence had taken place in house No.704, Janta Flats, Hastsal,
Uttam Nagar, Delh, is undebatable and should be affirmed, in view of the
ocular statements and the photographs. We have already examined the
question whether it is a case of fake encounter in some detail and accepted
the police version and rejected the contention that this is a case of a fake
encounter. N.R. Sharma, Chief Accounts Officer, MTNL as PW-5, has
affirmed that telephone number 25642293 was installed in the aforesaid flat
in the name of one Bharat Lal. Reference in the bill is to the appellant
Bharat. The said phone was installed on 28th July, 1998 and was
disconnected on 7th May, 2002. PW-5 had produced the original subscriber
record, which was marked Ex.PW-5/A. Suraj Bhan, SDM Patel Nagar,
PW-6 , the then Sub-Divisional Magistrate, Patel Nagar, has testified being
informed about the occurrence between at about 3 - 4 p.m. on 4th March,
2002. Rajbir Singh, SHO P.S. Uttam Nagar, had moved an application for
constitution of a medical board for performing autopsy on Sanjeev Verma.
PW-6, had given directions that the autopsy be conducted by a team of two
doctors of DDU Hospital, vide order/direction marked as Ex.PW-6/A.
Appellant Bharat in his statement under Section 313 Cr.P.C. has accepted
that aforesaid flat was owned by his wife. He has also accepted that his wife
had inducted a tenant on the second floor through a property dealer and a
rent agreement was executed. Pertinently, Bharat does not state and give the
name of the tenant. Bharat has accepted the phone no.25642293 was
installed in his flat. On the question of arrest, Bharat claimed that he was
taking meals when the police officers came and took him to the police
station Rajouri Garden and thereafter, to the police station Uttam Nagar. He
did not in his statement under Section 313 Cr.P.C. dispute the date and time
of arrest as such.
33. Contention on behalf of the appellant Rakesh that he was picked up from his
house in the midnight between 3rd and 4th of March, 2002, is a rather faint
and feeble attempt to show his innocence, and in fact, on deeper examination
would only affirm the prosecution case. There is sufficient evidence to show
that firing had taken place at house No.704, Janta Flats, Hastsal, Uttam
Nagar, Delhi, as is clear from contemporaneous recordings in the DD entry
and the ocular statements of the witnesses especially S.I. Raj Kumar (PW-
25) and Head Constable Bachu Singh (PW-26). Reference can be made to
DD entry No.40B Ex.PW-4/A, DD entry No.41B Ex.PW-15/A, DD entry
No.27A Ex.PW-15/B, DD entry No.29/A Ex.PW-15/C as well as MLC of
Sanjeev Verma (since deceased) marked Ex.PW-24/A recorded at 11:15
p.m. on 3rd March, 2002. It would be rather inane and farcical to accept that
the police had arrested appellant Rakesh from his residence post the
occurrence, and after Sanjeev Verma (since deceased) was taken to the
hospital at about 11.15 p.m. on 3rd March, 2002 and was declared as brought
dead. At this stage, we would like to deal with the defense evidence, lead by
the appellants Rakesh and Pranav.
34. Jagvir Singh (DW-1) proclaims that he had known the appellant Rakesh for
last 17-18 years and on 3rd March, 2002 at about 10.30 p.m., he had gone to
the house of Rakesh to attend a marriage party in the house of Rakesh‟s
bhua (aunt). At that time Rakesh was alone and other family members had
already left to attend the marriage. Rakesh had prepared tea for DW-1 and
told him that he would go to the marriage only when someone from the
family would return. The same night at about 12.30 a.m., suddenly 4-5
police officers came to the house of Rakesh and had taken him away stating
that he was required for an inquiry. DW-1, had then made a call to Rajesh
(brother of Rakesh) and had also spoken to the father of Rakesh, narrating
the occurrence, who had asked DW-1 to wait at home. In his cross-
examination, DW-1 accepted that he was not summoned to appear as a
witness and that he had not made any telephone call on number 100. DW-1
had also not made any complaint in writing to senior police officers. He did
not have the marriage card with him. He did not remember the telephone
number of Rajesh to whom he had allegedly made a call. DW-1 fractiously
proclaimed that he came to know that Rakesh had been arrested in this case,
2-3 days after Rakesh had been lifted by the police.
35. Om Prakash (DW-2) is the father of Rakesh. In his testimony, DW-2 has
referred to an occurrence on 1st June, 1998, when an altercation took place
between Rakesh and police officers. DW-2 claims that he had then
intervened and urged the police officers to not beat Rakesh and to not be
vindictive or revengeful. A few days thereafter, there was an occurrence in
which many boys were involved and FIR No.401/1998 was registered on 4 th
July, 1998. On asking of one SI Randhir Singh, a case was planted on
Rakesh who had remained in jail for 5-6 months and then released on bail.
Subsequently, vide judgment dated 2nd September, 1999, Ex. DW-2/A,
Rakesh was acquitted. However, even thereafter policemen from Police
Station, Nangloi had continued to harass Rakesh and other family members.
They had made complaints against the said harassment. Rakesh was once
again picked up by Inspector Inder Singh on being posted as the SHO at the
Police Station Nangloi with effect from 1st August, 2001. DW-2 had then
met SI Bijender Singh Chillar and requested that Rakesh should not be
harassed. Subsequently, PW-2 had learnt from SI Bajender Singh that
Rakesh had been taken away to some place by SI Randhir Singh. Next
morning, SI Randhir Singh came to their house and had picked up Rajesh,
Rakesh‟s brother. On 4th August, 2001, they had sent a telegram to National
Human Rights Commission and the Commissioner of Police, Delhi.
Consequent thereto, the SHO has assured that they would not be harassed,
but on 12th September, 2001, Rakesh was again picked up and SI Randhir
Singh had told them to wait to see what would happen as Rakesh would be
implicated in the Keshavpur robbery case. Only when the complainant had
failed to identify Rakesh, he was set free. On 13th February, 2002 SI
Randhir Singh had again visited DW-2‟s house in connection with the
robbery that had taken place in Nangloi, but at that time, Rakesh was not at
home. In the evening, DW-2 alongwith Rakesh had visited the police station
but were asked to return by the SHO Inder Singh. DW-2 claimed that on
28th February, 2002, SI Randhir Singh had picked up Rakesh from their
house. Rakesh was once again picked up from their house at around mid-
night on 4th March, 2002, when he (Rakesh) was alone as they had gone to
attend a wedding. At that time, DW-2 has received information from Jagbir
Singh (DW-1) that police officers from Nangloi had detained Rakesh and
taken him away with them. They had then sent a complaint to National
Human Rights Commission and the Commissioner of Police dated 4th
March, 2002. On inquiry, they had learnt that Rakesh had been sent to
Police Station Tagore Garden. They had gone to the said police station but
were not allowed/ permitted to enter. On 4th March, 2002, Rakesh was
produced in Court No.30 on a wheel chair as he had suffered injuries on both
legs. He was sent to jail. DW-2 claims that on 6th March, 2002, officials of
Police Station Nangloi and others in civil dress, had come to his residence
and had taken him to Police Station Nangloi and then to Halalpur Ashram,
District Sonepat. Rakesh was present there along with the police officials.
Rakesh had asked DW-2 to make payment of Rs.2,00,000/- to the police
officers for otherwise Rakesh would be shot. DW-2 did not get time to
arrange the amount and was taken to Tagore Garden. On 7 th March, 2002,
DW-2 was taken to his village Mahem District, Rohtak where inquiries were
made about DW-2, before being brought back to Tagore Garden and, from
there, he was taken to the Police Station Anand Parbat by Inspector
V.S.Meena. He was made to sign on some blank papers and detained in the
police station till 9th March, 2002 and on the same day produced in the Court
and sent to judicial custody. DW-2 proclaimed that Rakesh had been falsely
implicated in FIR No.332/2001 and FIR No.125/2002. He was acquitted in
the said FIRs vide judgments marked as Ex.DW-2/B and DW-2/C.
36. Ex.DW-2/B is an order on charge, passed in relation to FIR No.125/2002,
Police Station Nangloi. It is a two page order referring to an occurrence on
13th February, 2002 when Rs.2,00,000 were looted from one Rajender
Kumar Mahajan by three boys who had come on a motorcycle and had
pointed a revolver/pistol at the complainant who was in his car. In the TIP
proceedings, the complainant/ victim Rajender Kumar Mahajan could not
identify the accused. The accused Rakesh was therefore discharged. The
judgment dated 13th January, 2002 marked as Ex. DW-2/C in FIR
No.332/2001 Police Station Keshav Puram, convicts two of the accused but
acquits Rakesh on the ground there was no evidence except the disclosure
statement and no recoveries were made from him. This case was registered
on the complaint of Atul Garg who was driving the car and had been robbed
by two boys who had got down from another car and were carrying pistols.
Besides these two boys, there was a third person who was sitting in the
Santro car in the driving position.
37. Substantial portions of the versions given by Jagvir Singh (DW-1) and Om
Prakash (DW-2) are, according to us, mere falsehoods and pretences. Jagvir
Singh (DW-1) neither produced his telephone nor did he report the matter to
the senior police officers. Jagvir Singh (DW-1) and Om Prakash (DW-2)
both confirm that there was a wedding in the family of the house of the bhua
of Rakesh in the intervening night between 3rd and 4th March, 2002. They
accept that the appellant Rakesh had not attended the marriage. We find it
strange that appellant Rakesh would not go to attend the family wedding,
because he was waiting for someone else to return to the house. The reason
given is not plausible for they could have asked any third person or
acquaintance to remain in the house, if Rakesh did not want to lock the
house and leave it unattended. Om Prakash (DW-2) in his version has tried
to cover up and show presence of Rakesh on 28 th February, 2002 at the
police station i.e. at the time when the heist and murder of Mohan Lal
Bansal had taken place. We have referred to the two judgments. We do not
find that the judgments would anywhere support the versions given by DW-
1 or DW-2.
38. Vijay Dutt (DW-3) had produced printout from a micro film which was
certified by a third person who was incharge of the reference section at the
Navbharat Times. He had also seen the original paper dated 4 th March, 2002
in a torn condition and the original paper was marked as Ex.DW-3/A1.
However, DW-3 has accepted that he did not have any personal knowledge
of the contents of Ex. DW-3/A. The receipt of Rs. 60/- marked as Ex.ZB is
for telegrams booked at 1:13 hours on 4th March, 2002. However, copy or
contents of the telegram have not been placed on record. Mark-Z and ZA
refer to telegrams dated 4th August, 2001. The contents of these telegrams
are not relevant. As per the prosecution version, the firing in the present case
had taken place at about 9.30 / 10.00 p.m. at Flat No.704, Janta Flats,
Hastsal on 3rd March, 2002 and Sanjeev Verma (since deceased) was taken
to the hospital and examined vide MLC Ex.PW-24/A at 11.15 p.m. on 3rd
March, 2002. Thus, the telegram with reference to the Ex.ZB were sent only
after Rakesh had already been arrested in the present case and this
information was with Om Prakash (DW-2).
39. Head Constable Virender Kumar (DW-4) has referred to the complaint
submitted by Rakesh dated 10th June, 2000 which is of no relevance to the
facts of the present case. Mukesh, Section Officer, NHRC (DW-5) has
referred to a complaint marked as DW-5A, received in their office on 4th
March, 2002 from Rajesh Kumar son of Om Prakash in respect of Rakesh.
Notice was thereupon issued by the Commission. However, DW-5 could
not say anything about the complaint dated 4th March, 2002, i.e. the contents,
as the said complaint had been weeded out. The complaint on merits was
closed by the National Human Rights Commission and intimation was sent
to the complainant vide letter dated 11th June, 2002. Thus, the contents of
the complaint have not come on record.
40. R.K. Dubey, (DW-7) has produced the original newspaper dated 5th March,
2002, marked as Ex. DW-7/A.
41. Head Constable Prahlad (DW-8) was asked to produce the log book of
police station Nangloi dated 4th March, 2002, but he has deposed that the
same could not be produced as the same and was not traceable. The said
statement was recorded on 17th January, 2012.
42. Suraj Bhan Chauhan (DW-9) has deposed about certain telegrams sent on 4 th
August, 2001 and 12th September, 2001. Records of the said telegrams had
been destroyed.
43. Rajnish Kumar, (DW-10) has deposed as a witness of the appellant Pranay
(sic). He has stated that they i.e. Rakesh and DW-10 had studied together in
Deshbandhu College in the year 1991 and Pranay (sic) was from District
Supaul, Bihar. On 3rd March, 2002, Pranay (sic) had returned to Delhi by
Magadh Express and DW-10 had gone to the railway station to pick him up.
At that time, Pranay (sic) used to live in Prakash Mohalla, East of Kailash,
New Delhi, where DW-10 had dropped him. DW-10 asserted that they had
planned a dinner in the house of Pranay (sic) and, accordingly at 8.00 p.m.,
he had gone to the residence of Pranay (sic). He found that Pranay (sic) was
descending the stairs and on inquiry learnt that the others present were
police officers. The police officers on query had stated that Pranay (sic)
would come back within 5-10 minutes. DW-10 had waited for 1½ hours but
Pranay (sic) did not return. He had then visited the Police Post Garhi and
Sant Nagar. He had also made a call on Pranay‟s (sic) mobile phone, which
was switched off. DW-10 had informed the brother of Pranay (sic) on 3rd
March, 2002, and on 5th March, 2002 they had learnt about the arrest of
Pranay (sic) and that one Sanju had been murdered. In his cross-
examination DW-10 accepted that he was residing at Greater Kailash, Part-
1, Delhi but sometimes would reside with his friends also. He claimed that
sometimes Pranay (sic) would live in Sadhik Nagar but could not give the
full address. DW-10 did not remember the mobile phone he was having on
4th March, 2002 and could not recollect the phone number of the appellant
Pranay (sic). He did not try and find out about Pranay (sic), when he came
to know about his arrest from the newspaper. He professed that he had a
small child who used to remain ill and had to taken to the doctor everyday.
Besides, he had to work. He also claimed that one Chhotu was working as a
servant in the resident of Pranay (sic). The said Chhotu has not deposed.
The version of Vijay Dutt (DW-10), for apparent reasons and facets on
record, is unacceptable.
44. Conviction under the Arms Act, is challenged, on the ground that a
supplementary charge-sheet was filed. In terms of the order dated 4.03.2004,
charges under section 186/353 and 307 IPC were framed against Rakesh and
Pranav and under section 216 (sic. 216A) against Bharat. No charge under
section 25/ 27 of the Arms Act was framed. Subsequently sanction was
accorded under the Arms Act and supplementary charge-sheet was filed for
contravention of the provisions of section 25 of the Arms Act. Order dated
14.03.2011 was passed and a charge under Section 25 of the Arms Act was
framed against Rakesh and Pranav. The supplementary charge-sheet was filed
during the pendency of the trial and would be in accordance to law. The
contention that the prosecution under the Arms Act is void, for want of sanction
or not being a subject matter of the first charge sheet, is untenable and rejected.
45. The ocular testimony of the witness and evidence on material on record are
firm and prove that the police team had raided second floor of the house
No.704, Janta Flats, Hastsal, Uttam Nagar, Delhi, and at that place firing
had taken place. The flat on the second floor was rented out and as per the
ocular testimonies of S.I. Raj Kumar (PW-25) and Head Constable Bachu
Singh (PW-26), Sanjeev Verma (since deceased), Rakesh and Pranav had
fired and had obstructed and prevented the police team from entering the
premises. Thus the involvement of Rakesh and Pranav stands proved
beyond doubt and debate.
46. However, with regard to the role of appellant Bharat it is noticeable that the
police witnesses have not deposed that Bharat had fired. Bharat was not
armed. There is no evidence and material to establish previous association
and relationship of Bharat with Rakesh, Pranav or with Sanjeev Verma
(since deceased). S.I. Raj Kumar (PW-25) in his examination in-chief has
accepted that Bharat had opened the door on the first floor on asking of the
police team. Bharat had not given any clue about Sanjeev Verma (since
deceased) and Rakesh. On enquiry, Bharat had taken the police team to the
second floor flat, which was tenanted. S.I. Raj Kumar (PW-25) professes
that Bharat had knocked at the door of the second floor flat and had spoken
something in coded words. However, H.C. Bachu Singh (PW-26) has not
testified or claimed that Bharat had used coded words. As per PW-26,
Bharat had stated and told them that some tenants were residing at the
second floor. SI Raj Kumar had then asked the appellant Bharat to come
with them to the second floor to check and identify the occupant/tenant.
Bharat had accompanied them and had knocked at the door, which was
opened by Sanjeev Verma (since deceased). The depositions do not indicate
or reflect that Bharat had acted suspiciously or was hesitant. His demeanor
and conduct was not unusual and demonstrative of his involvement. It is not
the case that Bharat was involved with the heist. The looted money was not
recovered from him or at his behest. The police version does state that
Bharat did run down the stairs, but this was natural in the given facts as there
was firing and assault on the police team. In the facts, we do not think the
prosecution has been able to prove the charge under section 216A IPC,
against Bharat. It has not been proved and shown that Bharat knew and had
harbored appellant Rakesh and Sanjeev Verma (since deceased) knowing
that they had committed robbery and looted Rs.25.0 lacs from Mohan Lal
Bansal or were involved in any crime punishable with death. Acquittal of
Bharat, however, would not affect our finding on the question of
involvement of appellants Rakesh and Pranav.
47. In view of the aforesaid discussion, we would allow Criminal Appeal
No.122/2013 preferred by Bharat. Consequently, conviction of Bharat under
Section 216A IPC is set aside. The said appellant Bharat is already on bail,
as the sentence was suspended. The Criminal Appeal No.1450/2012
preferred by Pranav and Criminal Appeal 161/2013 preferred by Rakesh are
dismissed. Order of sentence with respect to the Pranav and Rakesh is also
affirmed. Appellant Pranav whose sentence was suspended vide order dated
09th May, 2013 passed in Criminal Appeal No.1450/2012, will surrender
within a period of fifteen days from today to undergo the remaining
sentence. The appeals are disposed of.
(SANJIV KHANNA)
JUDGE
(ASHUTOSH KUMAR)
JUDGE
DECEMBER 18th, 2015 VKR/SSN
