Delhi High Court
Sushil Arora vs State on 5 December, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 25th July, 2017
% Date of Decision: 5th December, 2017
+ CRL.A. 1284/2015
SUSHIL ARORA ..... Appellant
Through Mr. Vikas Arora & Ms. Radhika
Arora, Advocates alongwith appellant in
person.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP alongwith
SI Parveen Rathee, P.S. Chanakyapuri.
CRL.A. 53/2016
RAJESH PANDEY ..... Appellant
Through Ms. Prachi Gupta, Advocate
alongwith appellant in person.
versus
STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through Ms. Aashaa Tiwari, APP alongwith
SI Parveen Rathee, P.S. Chanakyapuri.
CRL.A. 190/2016
HEMANT GARG ..... Appellant
Through Mr. K. Singhal and Ms. Heena,
Advocates.
versus
STATE NCT OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP alongwith
SI Parveen Rathee, P.S. Chanakyapuri.
CRL.A. 1248/2015 + connected matters Page 1 of 94
CRL.A. 1338/2015
VISHNU S/O PANCHU RAM ..... Appellant
Through Mr. M.N. Dudeja & Mr. Rajesh
Kaushik, Advocates.
versus
STATE NCT OF DELHI ..... Respondent
Through Ms. Aashaa Tiwari, APP alongwith
SI Parveen Rathee, P.S. Chanakyapuri.
CRL.A. 283/2016
SONVEER @ PINKU ..... Appellant
Through Mr. Rajiv Mohan, Mr. Abhisheik
Srivastava, Ms. Priyanka Singh & Mr. M.A.
Karthik, Advocates.
versus
STATE ..... Respondent
Through Ms. Aashaa Tiwari, APP alongwith
SI Parveen Rathee, P.S. Chanakyapuri.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
JUDGMENT
Difference of opinion between the two Judges, primarily on the
question of the eye witness identification of the perpetrators, and to
some extent on other aspects, has led to this reference in the five
appeals by Sushil Arora, Rajesh Pandey, Hemant Garg, Vishnu and
Sonveer.
2. The aforestated appellants challenge the judgment of the Addl.
Sessions Judge dated 02.07.2015, holding them guilty of the murder of
Ankit Minocha (sometimes also referred to as Ankit) and for attempt
to murder Surender/PW-8, under Section 302 and Section 307 read
with Section 34 of the Indian Penal Code, 1860 (for short ‗IPC') in
Sessions Case No.7/2009 arising from FIR No. 35/2009 registered at
Police Station Chanakyapuri under Section 302/307/120B/34 of the
IPC and Sections 25/27/54/59 of the Arms Act, 1959.
3. The impugned judgment acquits Sonveer of the charge under
the Arms Act, 1959 on the ground that no proof had been adduced
with regard to the grant of sanction. No finding is recorded on the
charge under the Arms Act against Vishnu. The State has accepted the
said decision and the "victims" have not preferred any appeal.
4. By the order on sentence dated 26.08.2015, which is also under
challenge, the appellants have been sentenced to imprisonment for
life, for the offence under Section 302 read with Section 120B of the
IPC with fine of Rs.15,000/- each in the case of Sushil Arora and
Hemant Garg, fine of Rs.20,000/- in the case of Rajesh Pandey and
fine of Rs.25,000/- each in the case of Vishnu and Sonveer. In default
of payment of fine, Sushil Arora and Hemant Garg are to undergo
simple imprisonment for six months, Rajesh Pandey is to undergo
simple imprisonment for eight months and Vishnu and Sonveer are to
undergo simple imprisonment for a period of one year. Benefit of
Section 428 of the Code of Criminal Procedure, 1973 (Code, for short)
has been granted.
5. The judgments of Gita Mittal and R.K. Gauba JJ. correctly hold
that the order on sentence is defective for the appellants were not
convicted under Section 120B as a substantive offence. Another defect
noticed and apparent is that no punishment has been awarded
separately for the offence under Section 307 IPC.
6. The two judgments, penned by Gita Mittal, J acquitting the
appellants and R.K. Gauba, J affirming conviction of the appellants,
are detailed and extensively refer to the ocular evidence of the
purported injured eye witness Surender/PW-8, the complainant
Sunil/PW-1, Paramjeet Singh/PW-5, and Varun/PW-6, who were
statedly with the deceased in Santro Car No.DL2F-FK-0002 on
22.02.2009 at Ridge Road near Simon Bolivar T-Point at about 2:00
p.m. when occupants of an Indica car bearing No. DL3C-AX-2192
had fired on them, causing bullet injuries leading to the death of Ankit
Minocha and injury on Surender/PW-8. The prosecution, in addition,
relies upon testimony of Ranjeet Singh/PW-4 and Manveer Singh/PW-
2, especially the former, who, it is claimed, were passersby and public
witnesses present at the place of occurrence. The prosecution also
relies upon testimonies of Mahendra Singh/PW-9, Hemant/PW-10,
and Gajender Singh/PW-11 to establish motive and the facts
immediately prior and post the occurrence on 22.02.2009. Reliance is
placed on the version given by Narender Singh/PW-12, who it is
stated had taken the injured Ankit Minocha from the place of
occurrence, i.e Simon Bolivar T-Point to the Trauma Centre at All
India Institute of Medical Sciences(AIIMS, for short).
7. The primary issue and question of fact to be determined and
decided in these appeals relates to the identity of the perpetrators, i.e.,
occupants of the Indica Car, who had fired causing bullet injury and
death of Ankit Minocha
8. Before I deal with the testimonies of the eye witnesses and the
police witnesses and other circumstances on the question of identity of
perpetrators, I would like to pen down facts which have been
established and proven beyond doubt or even when there is some
debate, no firm opinion is required. The said narration also refers to
the points in controversy which require detailed examination. The
discussion would help me focus and adjudicate on the main
controversy and issues. These are :
(i) Mahendra Singh/PW-9 was known to and had business
dealings with accused/appellant Sushil Arora because of
which they were acquainted and if not friends.
(ii) Mahendra Singh/PW-9 had extended loan of Rs.10 Lacs to
Sushil Arora on interest on account of which differences
had developed between the two.
(iii) Mahendra Singh/PW-9 had visited Sushil Arora at his
office at Chintu Car Point at 17, Pusa Road, Karol Bagh,
Delhi on 22.02.2009 at about 1:00 p.m. for recovery of the
aforesaid loan.
(iv) Hemant/PW-10 and Gajender/PW-11 had accompanied
Mahendra Singh/PW-9 and subsequently the deceased
Ankit with Sunil/PW-1, Paramjeet Singh/PW-5,
Varun/PW-6 and Surender/PW-8 had arrived at Chintu Car
Point in Santro Car No. DL2F-FK-0002. For reasons
elucidated and stated below, this version of the prosecution
has been accepted in view of overwhelming evidence of
each of the said witnesses.
(v) There is some dispute as to whether Hemant/PW-10,
Gajender/PW-11, Varun/PW-6, Surender/PW-8 and
Paramjeet/PW-5 had participated in the discussions at
Chintu Car Point between Mahendra Singh/PW-9 and
Sushil Arora on the question of return of loan. However,
there is evidence to show that Sunil/PW-1 had entered the
office when the discussions were on and was asked to wait
outside. I would also accept presence of Hemant/PW-10
and Gajender/PW-11 in the discussion.
(vi) Appellant/accused Rajesh Pandey has disputed his
presence at Chintu Car Point or that he was involved in the
discussion between Mahendra Singh/PW-9 and Sushil
Arora. For the reasons set out and evidence adduced, I will
uphold the prosecution's version that Rajesh Pandey was
present during the discussion at Chintu Car Point on
22.02.2009.
(vii) There is also credible and incriminating ocular and
documentary evidence to show that there was a brawl or a
fight outside Chintu Car Point in the parking area. Pushkar
Raj, brother of Sushil Arora who had deposed as DW/6,
had made a call from his mobile phone 9891255906 at
police helpline number 100, which information was
conveyed to Police Station Karol Bagh and recorded as DD
20A at 1:45p.m. by Head Constable Arvind Kumar/PW-27
and given exhibit mark Ex.PW-27/A. The said information
was also conveyed to Police Station Rajender Nagar and
recorded as DD 23/A at 1:45 p.m. by Head Constable
Mahadev Prasad/PW-28 vide exhibit mark Ex.PW-28/A.
The brawl outside Chintu Car Point is deposed to by
Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6,
Surender/PW-8, Mahendra Singh/PW-9, Hemant/PW-10
and Gajender/PW-11.
(viii) Thereafter, deceased Ankit, Sunil/PW-1, Paramjeet
Singh/PW-5, Varun/PW-6 and Surender/PW-8 had left
Chintu Car Point in the Santro Car bearing No.DL2F-FK-
0002 and had taken the Ridge Road towards Dhaula Kuan.
Paramjeet Singh/PW-5, was driving the said car. They had
stopped to purchase water and cold drink from a cart
vendor, when occupants of an Indica car, driven at a very
high speed, came there and had fired bullets at them. They
started the car and had tried to escape but were compelled
to stop the car at the traffic signal at T-Point on the Simon
Bolivar Marg. The Indica car which had followed them
also reached the spot. To save themselves, Sunil/PW-1,
Paramjeet Singh/PW-5, Varun/PW-6 and Surender/PW-8
decamped by either opening the doors of the car or pulling
themselves out of the window as the left side door on the
rear side could not be opened. Ankit too came out of the
car and was hit in the firing. Surender/PW-8 also got hit.
For the reasons stated below I would accept the said
assertions.
(ix) It is the case of the prosecution that the appellants Sonveer,
Vishnu and even Hemant Garg were present at Chintu Car
Point and were involved the brawl. They had come to
Chintu Car Point at the instance of Rajesh Pandey on the
request of Sushil Arora. Thereafter, Sonveer, Vishnu,
Hemant Garg, Rajesh Pandey and Sushil Arora had
followed deceased Ankit, Sunil/PW-1, Paramjeet
Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6 and
Surender/PW-8 in the Indica car and had fired upon and
killed Ankit and injured Surender/PW-8. This factual
dispute relates to the identity of the perpetrators and
persons present in the Indica car. The said aspect is the
core issue and question to be adjudicated, and has been
examined and considered below.
(x) There is ample evidence on the firing at the Santro Car at
Ridge Road T-Point, Simon Bolivar Marg. Apart from
testimonies of Sunil/PW-1, Paramjeet Singh/PW-5,
Varun/PW-6, Surender/PW-8 and Manveer Singh/PW-2
and Narender Singh/PW-12, we have police witnesses and
communication records. Constable Kalyan Shetty/PW-7,
who was a part of the Mobile Crime Team and had taken
26 photographs at the spot marked Ex.PW-7/P1 to P26 and
negatives Ex.PW-7/B1 to B26. He had reached the spot at
about 3:15 p.m. and had taken instructions from Inspector
S.S. Rana/PW-26. Similar is the testimony of Constable
Satpal Singh/PW-15 who has deposed having visited the
crime spot with SHO Jagat Singh Bhati/PW-47. SI
Harshwardhan/PW-42 was in-charge of the Mobile Crime
Team who, after receiving information at about 2:30 p.m. -
3:00 p.m., had reached the place of occurrence at 3:15 p.m.
and had seen one black Santro car stationed on the road.
Blood was also lying at the spot and he had taken the blood
sample, earth sample and three empty cartridges. His
report was marked as Ex.PW-42/A. ASI Nand
Kishore/PW-24 was posted on 22.02.2009 on emergency
duty at Police Station Chanakyapuri and DD 15A was
received by him. He along with Constable Pradeep had
reached the place of occurrence where they had seen
Santro car No. DL2F-FK-0002 parked on the side of the
road. Blood was found lying on the ground on the back
side of the car. The right side triangular window had a
small hole with crack marks. Cold drink bottle and mobile
phone were found lying in the car. Three fired cartridges
and one live cartridge was found at the spot. These were
lifted and seized. Testimony of Inspector S.S. Rana/PW-
26, the first investigating officer, and Inspector Jagat
Singh/PW-47, SHO Police Station Chanakyapuri about the
place of occurrence, i.e. T-Point Simon Bolivar Marg,
presence of Santro car which had bullet hole and the
presence of blood in the car and outside on the road,
recovery of three fired cartridges and one live bullet are
credible and beyond question. Dr. Naresh Kumar/PW-16,
Sr. Scientific Assistant, Forensic Science Laboratory,
Rohini had examined the Santro car on 25th February,
2009 and had found blood, which was lifted from the place
mentioned in his report Ex.PW-16/A. Dr. R.V.
Anand/PW-19, Senior Scientific Officer, Ballistic
Division, FSL, on 25th February, 2009 had conducted
forensic examination on the Santro Car along with his team
and had observed one entry hole caused by a projectile
discharged from fire arm on the right side fixed quarter
window of the car. There was also one dent present on the
right hand side on the bonnet. His report was marked as
Ex.PW-19/A.
(xi) Mahendra Singh/PW-9, Hemant/PW-10 and Gajender/PW-
11 had left Chintu Car Point in a separate car and had
reached Hotel Hyatt Regency when they came to know
about the firing at T-Point of the Simon Bolivar Marg.
Thereafter, the three had proceeded to the T-Point where
they came to know that the deceased had been shifted to
the Trauma Centre at AIIMS. They accordingly proceeded
to the Trauma Centre, AIIMS. For reasons set out below, I
have accepted this enunciation of the aforestated witnesses
read with evidence of Sunil/PW-1 and Paramjeet
Singh/PW-5.
(xii) Sunil/PW-1, Paramjeet Singh/PW-5, Varun/PW-6 and
Surender/PW-8 ran away from the spot. Thereafter,
Sunil/PW-1 proclaims having called and informed his
uncle Mahendra Singh/PW-9 on telephone about the
occurrence and had subsequently alongwith Paramjeet
Singh/PW-6 reached Trauma Centre, AIIMS where Ankit
was admitted. For good reasons stated below and in view
of the ocular testimonies of the witnesses, I would accept
this version of the prosecution.
(xiii) There is sufficient material and evidence to establish that
Ankit Minocha had suffered a homicidal death due to
firearm injuries. The MLC of Ankit Minocha, Ex.PW-
50/A refers to history of gunshot wounds and that the
patient was in a drowsy state with gasping breathing, and
his abdomen was full of blood. His pupils were sluggish to
reaction and there was an exit injury on the scalp from
which blood was oozing. There were two other wounds
including one on the right shoulder. Dr. Arvind
Kumar/PW-18, who was then Senior Resident, Department
of Forensic Medicine at AIIMS, had conducted
postmortem examination of the dead body of Ankit
Minocha. He has referred to abrasions, contused abrasion
and a stitched wound on left parieto - occipital region of
scalp. On dissection one bullet was recovered from left
lateral side of the neck and small metallic fragment was
recovered on left temporal region. There was another fire
arm entry wound on the right arm posterior, and the
projectile had entered the chest cavity through lower lobe
of the right lung, and was recovered from the right lobe of
the liver. There was a stitched wound in the mid-axillary
line of the right side chest. The two bullets and one
metallic fragment were preserved and sealed and given to
the investigating officer. PW-18 opined that the cause of
death was due to the shock and haemorrhage as a result of
antemortem fire arm injury, which was sufficient to cause
death in the ordinary course of nature, individually and
collectively. No burning, singing, tattooing or blackening
was seen. In cross-examination, PW-18 had affirmed that
the fire arm injury was sufficient to cause immediate death.
However, the witness expressed difficulty in precisely
stating how long the victim had survived or remained
conscious.
9. Before I examine the testimony of the eye witnesses relating to
the identification of those present in the Indica car at the time of firing,
I would first examine the testimony of Manveer Singh/PW-2,
Narender Singh/PW-12, and Ranjeet Singh/PW-4, statedly passersby,
who, as per the Appellants, are planted witnesses.
10. I am in agreement with the prosecution that Manveer
Singh/PW-2 was present near the place of occurrence near Buddha
Garden main road on 22.02.2009 at 2:00 p.m. He was on his
motorcycle, which he had stopped on the left side of the road as there
was a person selling birds. He had then noticed one Indica car silver
gray in colour which was being driven at a very high speed. When the
Indica car had gone ahead 100 to 150 meters or a little more, he had
heard a sound as if fire crackers had burst. He started his motorcycle
and had followed the Indica car. He had then noticed that the Indica
car was moving slowly and two or three persons were in the process of
sitting inside the car. One person was possibly on the steering wheel
as the Indica car was moving. He had followed the Indica car and had
noticed its number as DL3E-AX-2192. Since he did not have much
time and pen and paper was available with him, he stopped the
motorcycle and had dialled 100 number from his mobile phone
9971054874. There was a black colour Santro car DL2F-FK-0002
stationed on the kaccha road. He had parked the motorcycle on the
spot. At that time, he had seen three persons running towards Buddha
Garden side, but he could not state whether the said persons had got
down from the Santro car or not. He had seen a young boy wearing
orange colour jersey and sky blue jeans with sports shoes of white
colour lying close to the Santro car. The said person was bleeding
profusely from his head and blood was coming out as if a water pipe
with pressure was leaking. He immediately made a second call to the
police from his mobile. In the meanwhile, one white colour Santro car
arrived at the spot and two persons lifted the injured boy and had
stated that they were taking him to hospital. Manveer Singh/PW-2,
noticing them and their behaviour, had felt that they were known to
the victim. The police came to the spot and had recorded his
statement. He had seen what appeared to be bullet marks on the right
side window glass of the Santro car. Police had taken photographs at
the spot and he was visible in the photographs. Manveer Singh/PW-2
has accepted that he was not in a position to identify the perpetrators,
as he had seen the occupants of the Indica car for a short duration.
However, the occupants of the Indica were young persons. In his
cross-examination, Manveer Singh/PW-2 affirmed having noted the
Indica car number on a paper slip so as not to rely upon his memory.
Though this paper slip was not produced before the Court, this, in my
opinion, would not in any manner affect the credibility and
truthfulness of the version given by Manveer Singh/PW-2. The
aforesaid position is corroborated and affirmed in DD entries by the
Delhi Police Control Room records marked Ex.PW-29/A and Ex.PW-
30/A. No doubt, as per the said form, the information from telephone
No. 9971054074 was conveyed by one Narender Singh but the same
form also refers to the name of caller as Manveer Singh, son of
Harnam, who was present at the spot. The information conveyed had
given the number of the Indica car from which firing had taken place
as 2192. The injured had been taken to Safdarjung Hospital in car No.
DL4C-AG-7179. The form Ex.PW-30/A refers to the subsequent
PCR recordings made at 2:05, 2:11 vide VTR 69; 2:05 and 2:58 vide
TGR 41 and vide VTR 70 at 3:25 and 3:26 on 22.02.2009. The
recordings mention that the number of Indica gray colour car was
DL3S-2192 or DL3U-AX-2192 and that the person who was injured
was sitting on the rear seat behind the driver, the injured had been
taken to the Safdarjung Hospital and that the injured was admitted to
the Safdarjung Trauma Centre and was on ventilator. The PCR
form Ex.PW-30/A, I must notice, incorrectly mentions that the victim
was taken to Safdarjang Hospital, for it is a fact that Ankit was taken
to Trauma Centre, AIIMS. However, this would not distract and
negate the other contemporaneous recordings made in the PCR form.
Perhaps information conveyed and recorded in the PCR form
regarding Safdarjang Hospital was not made after verifying the place
of admission but on the basis of perception and details given at the
place of occurrence. Safdarjang Hospital and AIIMS are located on
two sides of the same road. Pertinently, PCR form mentions name of
injured as Surender/PW-8 and that he had gone to Chintu Car Point,
Karol Bagh and that he was present in the Santro car when the
occurrence had taken place. The aforesaid facts are corroborated and
proved by woman Constable Saubhagyawati/PW-29 and Head
Constable Suresh Kumar/PW-30 who were posted in Police Control
Room at telephone operator on 22.02.2009 and had recorded the said
information transmitted by the PCR in the course of their official
duties. Even if I ignore Ex.PW-29/A and Ex.PW-30/A in the absence
of certificate under Section 65B of the Evidence Act, as was admitted
by the two witnesses in their cross-examination, I find that the
testimony of Manveer Singh/PW-2 is credible and believable. He has
given truthful version of what he had seen and had occurred.
11. The testimony of Manveer Singh/PW-2 is important and
relevant on several aspects, though he was not in a position to identify
the perpetrators. Firing was a directed and deliberate attack. Inference
being that there was a history and antecedent facts leading to the
firing. The murderous assault was by the occupants of the Indica Car
bearing number 2192, who were at-least 3 or 4 in number. Lastly,
there were some others who ran away from the spot.
12. Similarly, testimony of Narender Singh/PW-12 to the effect that
he had picked up the deceased and taken him to the Trauma Centre,
AIIMS in Car No. DL4C-AG-7179 is credible and merits acceptance.
He has testified having not disclosed his name and identity at the
hospital apprehending harassment. However, the police were able to
track him the next day from his car number. The fact that the police
had not seized his car and the car was not sent for forensic
examination or he had washed his car or his friend Jagmohan was not
examined are all inconsequential. These would not in any way affect
the affirmative version given by him that he had taken deceased Ankit
to the Trauma Centre at AIIMS. Manveer Singh/PW-2 corroborates
the version by Narender Singh/PW-12, on the car number in which the
deceased was taken to the AIIMS Trauma Centre immediately after
the occurrence from the spot. Narender Singh/PW-12's testimony
when read with testimony of other witnesses affirms that other
occupants present with deceased Ankit in the Santro Car, who out of
fear had fled from the spot, had not taken the deceased Ankit to the
AIIMS Trauma Centre.
13. My attention was drawn to the MLC of Ankit, Ex.PW-50/A,
which refers the name of the relative or friend as Satpal. Narender
Singh/PW-12 had stated that he had not given his name to the hospital
doctors/authorities. The MLC Ex.PW-50/A, records the patient's
name as Ankit, son of unknown, resident of unknown. The time of
admission is 2:20 p.m. Testimony of Dr.Harsh Vardhan/PW-50 does
not clarify on how and who had given the name Ankit, as the MLC
was prepared by Dr.Mukesh Kumar whose handwriting and signatures
were identified by PW-50. PW-50 himself had no personal
knowledge. Thus, how the name Ankit got recorded in MLC Ex.PW-
50/A has not been explained. Narender Singh/PW-12, who is a
resident of Mehrauli, possibly knew the deceased for he had stated that
he had identified the Santro car standing at the spot as one belonging
to Monu who was from Mehrauli and in transport business. Paramjeet
Singh/PW-5 is also known as Monu. It is therefore probable that the
version of Narender Singh/PW-12 that he had not given the name of
Ankit is incorrect. However, this will not be a ground to disbelieve
Narender Singh/PW-12 or the MLC Ex. PW-50/A or the time of
admission of the deceased Ankit in the AIIMS Trauma Centre being
2:20 p.m. I do not think any benefit would accrue to the appellants or
doubts arise on this account and reason. It is also possible that the
name Ankit may have been ascertained from some documents
available which the injured was carrying. It would be wrong to
assume as suggested that personal details recorded on the MLC
Ex.PW were given by diseased Ankit. Parentage and address of Ankit
was not mentioned.
14. I would now examine the question whether Ranjeet Singh/PW-4
is a credible chance and public witness, a good samaritan who had
seen the occurrence; or is a planted witness as asserted by the
appellants. Ranjeet Singh/PW-4, I may point out, had identified the
appellants as the five occupants of the Indica car. There are several
good reasons for me to doubt, if not disbelieve Ranjeet Singh/PW-4
coincidental presence at the place of occurrence and identification of
the perpetrators. Ranjeet Singh/PW-4 has claimed that on 22.02.2009
he was going from his residence in Pahari Dhiraj to his sister's house
in village Adhchini. At about 2:00 p.m., he was near Buddha Garden
Gate where he had seen the Indica car being driven at a high speed and
had overtaken the black Santro car when he heard a sound like a fire
cracker. Two persons who had taken out their heads up to the
shoulder from the left side front and rear window of the Indica car
were firing. The Indica car had stopped and all the five occupants
came out. In the meanwhile, the Santro car, which was stalked by the
Indica car, started moving and had proceeded towards Dhaula Kuan
side. The five occupants of the Indica car immediately sat in the
Indica car and followed and chased the Santro car. He had also
followed them. The Santro car had stopped at the traffic red light and
he had seen some boys come out of the Santro car from the front and
the rear side. One boy in orange colour shirt who had come out from
the rear seat of the Santro car was walking with difficulty. The Indica
car which had followed the Santro car reached the spot and one boy
got down from the Indica car and had fired at the boy with the orange
colour shirt on his head. As noticed above, PW-4 had identified the
five appellants as occupants of the Indica car, including Vishnu and
Sonveer as the ones who were firing. He had also stated that the
injured was taken to Safdarjung hospital in the Santro Car No.DL4C-
AG-7179.
15. Ranjeet Singh/PW-4 claims to have proceeded to Safdarjung
Hospital after informing his name and address to the PCR officer.
After arriving at Safdarjung Hospital, PW-4 did not meet the family
members of the deceased or any other person. After spending ten
minutes at the hospital's Trauma Centre, he left the hospital and had
proceeded to his sister's place which he had reached at about 3:00 p.m.
He did not narrate the aforesaid incident to his sister and no discussion
took place with her.
16. Ranjeet Singh/PW-4's presence at the place of occurrence is
not corroborated and affirmed by Manveer Singh/PW-2, or Narender
Singh/PW-12, or any of the police witnesses who had immediately
visited the place of occurrence. He is not to be seen in any of the
photographs. He has deposed having given his home address to the
police officers of the PCR van, who had shortly reached the spot, an
assertion certainly not accepted and stated by any of the PCR officers
in their testimonies or in the communications to the control room. The
call records and information conveyed by the PCR vide Ex. PW29/A
and Ex. PW 30/A do not affirm and corroborate his chance presence at
the scene of crime. There are also discrepancies in the version given
by Ranjeet Singh /PW-4 viz. the version given by Manveer Singh
/PW-2, Sunil /PW-1, Paramjeet Singh /PW-5, Varun /PW-6 and
Surender /PW-8. Ranjeet Singh's /PW-4 assertion was that the
occupants of Indica Car five in number had got down when the firing
had taken place near the Cold Drink Vender's Cart. This assertion is
not deposed to and affirmed by the other witnesses.
17. Cross-examination of Ranjeet Singh /PW-4 and police
witnesses reveals another aspect. PW-4 initially denied knowing the
decease or his father but he subsequently accepted that he had met
father of the deceased at Police Station Sadar Bazar regarding some
other incident in October/November, 2010. This visit to Police Station
Sadar Bazar was made pursuant to a call to him by father of the
deceased regarding a road accident.
18. The visits to police station stand affirmed and established from
the photograph shown to Rajiv Kumar Minocha/PW-32 in his cross-
examination conducted on 24th November, 2011. PW-23 had accepted
that on one or two occasions, when he happened to visit the police
station, Ranjeet Singh/PW-4 had accompanied him in the same car.
He identified himself in the photograph with the said witness, his
brother Vijay and Inspector Arun Kumar/PW-48A. Inspector Arun
Kumar/PW-48A had similarly identified himself in the said
photograph being present with Ranjeet Singh/PW-4 and Rajiv
Minocha/PW-32. Question therefore arises whether Ranjeet
Singh/PW-4 had known the family of the deceased before or prior to
the occurrence. He certainly knew the family of the deceased post the
occurrence. The statement of Ranjeet Singh/PW-4 and the cross-
examination would indicate and reflects that possibly this witness
knew the family of the deceased from before. Ranjeet Singh/PW-4
was residing in the vicinity and within the same area where the
deceased used to live i.e. Pahari Dhiraj. This area no doubt is thickly
populated, albeit Ranjeet Singh/PW-4 has accepted that he and his
brother were well known residents of the said area.
19. Ranjeet Singh/PW-4 has accepted in his cross-examination that
he was carrying on business in Sadar Bazar, Delhi in partnership and
was an owner/landlord of ancestral properties in Old Delhi, with
several tenants. His wife is teaching as a lecturer in Delhi University,
his two daughters were staying in Australia and his son had a foreign
degree. Yet, PW-4 professed that he did not have any mobile phone
and that there was no landline phone also in his office premises. It is
rather difficult to accept and believe that Ranjeet Singh /PW-4 given
his background and economic and social status, did not have a mobile
phone and hence the contention of the appellants that the mobile
number details were deliberately withheld and concealed, as these
would have helped ascertain and verify whether the said witness was
or was not present at the place of occurrence. Call records would have
also indicated and revealed whether Ranjeet Singh/PW-4 had known
the family of the deceased from before. On the said contention, I
would only observe that it is somewhat difficult to accept that Ranjeet
Singh /PW-4 did not have a mobile phone.
20. Ankit was not taken and admitted in the Safdarjung hospital, as
deposed by Ranjeet Singh/PW-4. I have referred to the PCR form
Ex.PW-30/A, which mentions that Ankit was taken to Safdarjang
Hospital and observed that the said recording is factually incorrect but
inconsequential for the said information was recorded on the basis of
the details collected at the place of occurrence and not after
verification. However, Ranjeet Singh/PW-4 had stated that he had
proceeded and seen the victim in the hospital, namely, Safdarjang
Hospital and not at the AIIMS Hospital. Ranjeet Singh/PW-4 is not a
rustic villager but a businessman owning substantial properties whose
sister was living in an area near the hospitals. He would certainly
have known, like most of us, the difference between the two hospitals.
21. Ranjeet Singh/PW-4 testified having left the house of the sister
at 7:15 p.m. on 22.2.2009 and on the way back had stopped at the
spot where his statement was recorded at about 8:00 p.m. by Inspector
S.S. Rana/PW-26. The appellants urge that the sudden appearance of
PW-4 at the place of crime after 6 hours is curious and deceptive,
indicative of being a planted witness. I have examined the case diary
and notice that Investigating Officer S.S. Rana /PW-26 in the
22nd
proceedings recorded on February, 2009, did not narrate and
reproduce in detail the statement given by Ranjeet Singh /PW-4 under
Section 161 of the Code. It is also apparent that the carbon paper used
in relation to the page which mentions the statement of Ranjeet Singh
/PW-4 is different from the carbon paper used while recording the
22nd
proceedings dated February, 2009 in the case diary on the other
pages. [On the question of police diary and its relevance, see Laxmi v.
State,(2016) 155 DRJ 179 (DB) and Sarvesh Kumar v. State (Govt.
Of NCT of Delhi), (2016) 229 DLT 640 (DB).]
22. For the aforesaid reasons, I would accept the contention of the
appellants that the eye witness assertion and identification by Ranjeet
Singh /PW-4 should be discarded for his presence at the spot and at
the place of occurrence is clearly questionable and unreliable. I would
therefore eschew testimony of Ranjeet Singh/PW-4.
23. I would now refer to testimonies of Sunil/PW-1, Paramjeet/PW-
5, Varun/PW-6, and Surender/PW-8, who, as per prosecution version,
had gone to Chintu Car Point and were also present in the Santro car
when they were fired upon. They have identified either all or some of
the appellants as persons who were present at Chintu Car Point or in
the Indica Car. I would also examine the statements made by
Mahendra Singh/PW-9, Hemant/PW-10, and Gajender/PW-11.
Reference, wherever required, is also made to the police witnesses.
24. Sunil/PW-1 in his court deposition recorded on 6th October,
2009, affirmed that on 22nd February, 2009 he alongwith
Paramjeet/PW-5, Varun/PW-6, Surender/PW-8 and the deceased
Ankit had visited Chintu Car Point. As they entered the office,
Mahendra Singh/PW-9 had told them that talks had concluded and
they should move out. They accordingly had waited outside the office
for Mahendra Singh/PW-9. Four boys were standing outside the
office. Another person, namely, accused-Rajesh Pandey came out of
the office and had spoken and talked with these boys, who, it
appeared, belonged to the same office. Mahendra Singh/PW-9 came
out and they started their vehicle to leave the place. However, there
was a motorcycle parked in front of the Santro car and on this account,
altercation took place between the deceased Ankit and Varun/PW-6 on
one side and the four boys who were standing outside. Sunil/PW-1,
Mahendra Singh/PW-9 and Paramjeet Singh/PW-5 had intervened and
separated the two sides. Sunil had testified that Sushil Arora and
Rajesh Pandey were sitting on the rear seat of the Indica car when
firing took place, with three boys who were earlier present outside
Chintu Car Point. He had stated that perhaps there were five
occupants in the Indica car. Sunil/PW-1 had also testified that prior to
22nd February, 2009 on 20th February, 2009, he, along with his uncle
Mahendra Singh/PW-9, visited Chintu Car Point and had also seen
Rajesh Pandey and Sushil Arora, who were present there.
25. Sunil/PW-1's deposition was recorded de novo on 8th March,
2010 and on subsequent dates. The reason being that till 6th October,
2009, the appellant-Sushil Arora alone had been put to trial as other
accused were absconding. Subsequently, the other four accused
persons were arrested and charge-sheeted. Consequently, Sunil/PW-1
was examined afresh. In his examination on 8th March, 2010 and on
subsequent dates, Sunil/PW-1 has not referred to his purported earlier
visit with Mahendra Singh/PW-9 on 20th February, 2009 and his
interaction with Sushil Arora and Rajesh Pandey. This is important,
for if Sunil/PW-1 had interacted with Sushil Arora and Rajesh Pandey
on 20th February, 2009, I should accept the prosecution version that
the said witness was well acquainted and had sufficient opportunity to
interact with the two appellants - Sushil Arora and Rajesh Pandey.
Noticeably, Sunil/PW-1 in his statement recorded on 6th October,
2009 did not talk of presence of three or four boys at Chintu Car Point
on 20th February, 2009, who later on 22nd February, 2009, were
statedly present at the same place and in the Indica car and had fired.
R.K. Gauba, J. in his judgment has pointed out that statement of
Sunil/PW-1 recorded on 6th October, 2009 can be read in evidence
against Sushil Arora for he was represented and had been charge-
sheeted and was on trial on the said date. I would not place reliance
and accept the statement of Sunil/PW-1 recorded on 6th October, 2009
with reference to the purported visit to Chintu Car Point with
Mahendra Singh/PW-9 on 20th February, 2009 for the reasons
indicated below.
26. Even on 6th October, 2009, Sunil/PW-1 had accepted, he had
come to know Sushil Arora by his name only on 22nd February, 2009
and not on 20th February, 2009. In case Sunil/PW-1 had interacted
and was present with Mahendra Singh/PW-9 at Chintu Car Point on
20th February, 2009, he would have known and identified appellant
Sushil Arora by his name. This position was affirmed by Sunil/PW-1
in his cross-examination on 10th March, 2010, when the witness
deposed that prior to the date of the occurrence, i.e., 22nd February,
2009, he had not met or seen appellant-Sushil Arora. He had not been
introduced to him by his uncle Mahendra Singh/PW-9, nor did he have
any talk with Sushil Arora. He subsequently, i.e. after the incident,
came to know the name of the appellant - Sushil Arora, from his uncle
Mahendra Singh/PW-9. Sunil/PW-, 1 as per his own statement, on
22nd February, 2009 had merely peeped into the office of Chintu Car
Point and was asked to move out by his uncle Mahendra Singh/PW-9.
Another important aspect emerging from the statement of Mahendra
Singh/PW-9 is that by the time Sunil/PW-1 and others in Santro car
had arrived at Chintu Car Point on 22nd February, 2009, discussion
with Sushil Arora in the presence of accused Rajesh Pandey and
Pushkar Raj, who has deposed as DW-6, had ended in a settlement.
27. It is difficult to accept that Sunil / PW-1 was present in the
detailed interaction of Sushil Arora on 20.2.2009 with Mahindra
Singh/PW-9, yet he did not know him and was not in a position to
identify him by his name. This ex facie appears to be implausible. It
would as a sequitor follow that Sunil/PW-1 did not personally know
Sushil Arora by his name prior to the incident. I would accordingly
hold that his name, i.e, Sushil Arora's name, though mentioned in
Ex.PW-1/A, was told to Sunil/PW-1 by Mahendra Singh/PW-9.
28. R.K. Gauba, J. in his judgment has affirmatively concluded that
there was acrimony and dispute, and threats were extended by Rajesh
Pandey during the said discussion. Gita Mittal, J., on the other hand,
has referred to the testimony of the witnesses including Sunil/PW-1 to
show that there was a dispute on the question of re-payment of Rs.10
lakh, but the same was amicably resolved, albeit there was an
altercation between Varun/PW-6 and deceased Ankit with the boys in
the parking lot on account of the motorcycle which was parked in
front of the Santro car, which had blocked their way. The assertion is
that three or four boys, who were present there had subsequently
followed the Santro car in the Indica car and fired.
29. In other words, enunciation by the appellants-Sushil Arora and
Rajesh Pandey is that the occurrence and brawl involving Varun/PW-6
and deceased Ankit which took place outside Chintu Car Point had led
to the firing and they have been falsely implicated on the basis of
supposition and perception of the witnesses, who have stated that
appellant Sushil Arora and Rajesh Pandey were involved and were
instrumental and responsible for the firing. They were not present in
the Indica car.
30. Before examining testimonies of Paramjeet/PW-5, Varun/PW-6
and Surender/PW-8, I would prefer to refer to the solemn statements
of Mahendra Singh/PW-9, Hemant/PW-10 and Gajender/PW-11, for
clarity on what had transpired outside Chintu Car Point, and on
identity and presence of the appellants Sushil Arora, Rajesh Pandey,
Hemant Garg, Vishnu and Sonveer, as deposed by them.
31. Mahendra Singh/PW-9 in his deposition has testified that he had
given a loan of Rs.10 lakh to appellant-Sushil Arora in June or July,
2008 and Sushil Arora had given two blank cheques without the name
of the payee of Rs.5 lakh each. Subsequently, his name was written
by one Saroj. Sushil Arora had agreed and paid interest @ 2% per
month, but from January, 2009 interest was not paid. Mahendra
Singh/PW-9's daughter's wedding was scheduled and held on 14th
February, 2009 and after the wedding, he along with his nephew
Sunil/PW-1 had visited the office of Sushil Arora at Chintu Car Point,
Pusa Road, where accused Rajesh Pandey and his brother Pushkar Raj
were also present. They were asked to come back after two days. On
22nd February, 2009, he had visited the office of Sushil Arora with his
cousin Sudhir, Gajender and Hemant. Rajesh Pandey was present
there along with 4-5 other boys, who were standing outside the office.
Initially, appellant-Sushil Arora had expressed inability to re-pay, but
finally there was an agreement and settlement with Sushil Arora
agreeing to re-pay the loan @ Rs.2 lakh per month without interest.
Rajesh Pandey in the discussion had stated that Mahendra Singh/PW-9
was trapped and he should do what they had directed - "Tu Fasa Hua
Hai Jaisa Hum Kahte Hai Vaisa Maanja". PW-9 had then called
Sunil/PW-1 on his mobile phone and had asked him to come with 3-4
associates as appellant-Sushil Arora did not intend to pay any money.
Thereupon, Sunil/PW-1 had come along with others, namely,
deceased Ankit, Surender/PW-8, Varun/PW-6 and Paramjeet/PW-5.
Sunil/PW-1 came inside the office and was told to go and wait outside
as talks were going on. Subsequently, Mahendra Singh/PW-9, Sudhir,
Gajender/PW-11 and Hemant/PW-10 came out of the office and had
asked Sunil/PW-1 to leave. Thereupon, quarrel took place between
deceased Ankit and four boys standing outside the office as a
motorcycle was parked in front of their Santro car. PW-9 had
intervened and separated the two sides. Mahendra Singh/PW-9,
however, could not identify whether appellants Hemant Garg, Sonveer
and Vishnu were amongst 3-4 boys involved in the quarrel. In his
cross-examination, PW-9 has accepted that he had developed family
relationship with appellant Sushil Arora, who was invited to his
daughter's wedding. He has stated that Sunil/PW-1 on 22nd February,
2009 had come inside the office for a moment and was sent out
immediately. In his cross-examination, Mahendra Singh/PW-9
accepted that in his statement under Section 161 of the Code, he had
not stated the exact words attributed to Rajesh Pandey as quoted
above. He has also accepted that talks/discussion had concluded with
appellant-Sushil Arora agreeing that he would pay Rs.10 lakh. They
were served tea and the entire discussion was cordial except for
exchange of the aforesaid words.
32. Hemant/PW-10, who was present along with Mahendra/PW-9,
Sudhir and Gajender/PW-11 at Chintu Car Point, had identified
appellant Sushil Arora and that the talks had concluded between him
and Mahendra Singh/PW-9. However, this witness could not recollect
the exact month, and had stated it was the 22nd day and a Friday.
After two days, PW-10 had again visited Chintu Car Point with
Mahendra Singh/PW-9, Gajender/PW-11 and Sunil/PW-1. At that
time, there was an exchange of words between appellant Sushil Arora
and his brother Puskar Raj, DW-6 on one side, and Mahendra
Singh/PW-9 on the other. Appellant Rajesh Pandey was also present
and had threatened. Appellant Sushil Arora had agreed to pay the
principal amount without interest. Three-four boys were standing
outside Chintu Car Point and Rajesh Pandey was in constant touch and
conversing with those boys, who were coming in and going out of the
office. In the meanwhile, Sunil/PW-1, deceased Ankit, Paramjeet/PW-
5 and another boy whose name PW-10 could not recall also came to
Chintu Car Point and were asked to stand outside the office. There
was a quarrel between the boys who were standing outside the office
and Sunil and his boys, which they had quelled. They had left Chintu
Car Point in two separate cars with Sunil/PW-1 and other boys going
in the black Santro car. They had reached Hyat Regency, Bhikaji
Cama Place, when Mahendra Singh/PW-9 had received a telephone
call from Sunil/PW-1 that someone had fired on them and Ankit had
suffered bullet injury. He identified Vishnu and Sonveer, who were
present in the Court, not by name, albeit as those who were present
outside the office of Chintu Car Point on the date of occurrence. In his
cross-examination, Hemant/PW-10 has accepted that talks had
concluded in a settlement on 22nd February, 2009 and only 4 persons
were present in the office, whereas four boys, namely, Sunil/PW-1,
Ankit etc. were present outside. The quarrel and tiff outside Chintu
Car Point had lasted for 2-3 minutes. Except Sunil/PW-1, who had
entered the office for just one minute and was asked by Mahendra
Singh/PW-9 to stay outside, others, namely, deceased Ankit,
Paramjeet/PW-5 or their friends had not come inside the office.
33. Gajender Singh/PW-11 has similarly testified about his visit
with Mahendra Singh/PW-9, Hemant/PW-10 and Sudhir to the
appellant Sushil Arora's office at Chintu Car Point on 22nd February,
2009. Four-five boys were standing outside the office. Appellant-
Sushil Arora along with his brother Pushkar Raj/DW-6 and one or two
persons, whose names he did not remember, were present in the office.
Appellant-Rajesh Pandey was sitting inside the office and had stated
that "they did not know him" and that "he was Rajesh Pandey". Talks
had ended in a settlement with appellant-Sushil Arora agreeing to pay
the principal amount without interest in monthly instalments of Rs.2
lakh each. They had got up and moved out, when there was a quarrel
between deceased Ankit and Varun/PW-6 on the one side and the four
boys, who were standing outside, on the issue of re-moving the
motorcycle. They had by then sat in the car. They came out and got
the two groups separated. Subsequently, they had left and had reached
Hyatt Hotel, when Mahendra Singh/PW-9 received a telephone call
from Sunil/PW-1 about the firing by occupants of an Indica car. He
identified Sonveer and Vishnu, who were present in the Court, as two
amongst the 4-5 boys, who were present outside Chintu Car Point. In
his cross-examination, PW-11 had accepted that only he and
Mahendra Singh/PW-9 had gone inside the office of Chintu Car Point,
which gives an impression that Hemant/PW-10 had not gone inside.
However, I am not inclined to accept the said version in view of the
earlier statement of PW-11 that Hemant/PW-10 had gone with them to
Chintu Car Point and testimony of Hemant/PW-10 and Mahendra
Singh/PW-9. He has accepted that talks inside Chintu Car Point had
ended in an amicable settlement and there was no quarrel inside
Chintu Car Point. Further, only Sunil/PW-1 had come inside the office
but he was immediately asked to go outside by Mahendra Singh/PW-
9. Others, who had come with Sunil/PW-1, had not come inside the
office.
34. Thus, Hemant/PW-10 and Gajender/PW-11 had identified
appellants Sonveer and Vishnu as being present outside Chintu Car
Point.
35. This brings us to the statement on oath of Paramjeet Singh/PW-
5 on the question of identity of the accused present at Chintu Car Point
on 22nd February, 2009 and in the Indica car, which had fired on the
Santro car. PW-5 had correctly identified appellants Sushil Arora and
Rajesh Pandey as well as Sonveer, Vishnu and Hemant Garg and
stated that they were present in the Indica car which had fired. He had
identified Sonveer, Vishnu and Hemant Garg, whose names he came
to know later on, as persons present outside Chintu Car Point. He had
seen Varun/PW-6 having a physical brawl with the three boys. Ankit
got down from the car and had proceeded towards them. They also
got down from the vehicle and had separated Varun/PW-6 from the
three boys. The brawl had lasted for 1-2 minutes. I would not doubt
presence of Paramjeet Singh/PW-5 for the Santro car bearing number
DL2F-FK-0002 belonged to him and he was statedly driving the said
car. His presence has been deposed to and affirmed by other
witnesses, namely, Sunil/PW-1, Varun/PW-6, Surender/PW-8,
Mahendra/PW-9, Hemant/PW-10 and Gajender/PW-11.
36. Paramjeet/PW-5 claims that he had gone inside the office and
was asked by Mahendra Singh/PW-9 to wait outside. However, I
would not read the said version of PW-5 as a statement that he had
seen appellants Sushil Arora and Rajesh Pandey inside Chintu Car
Point. This assertion would reflect that he was deposing on the basis
of what was stated to him by Sunil/PW-1 and is an overstatement. In
his cross-examination, PW-5 was confronted with his statement under
Section 161 of the Code marked Ex.PW-5/D1, wherein it was not
recorded that he had not gone inside Chintu Car Point. Mahendra
Singh/PW-9, Sunil/PW-1, Hemant/PW-10 and Gajender/PW-11 have
deposed that only Sunil/PW-1 had come and peeped inside the office
and was asked to stand outside by PW-9. We shall subsequently deal
with the failure of PW-5 to identify accused Hemant Garg in the Test
Identification Parade on 26th August, 2009 and the effect thereof on
the dock identification of Hemant Garg as the driver of the Indica car.
37. I would also discount the version of PW-5 that he had seen the
Indica car arrive outside Chintu Car Point for this fact is not deposed
to by any other witness, Sunil/PW-1, Varun/PW-6, Surender/PW-8,
Mahendra Singh/PW-9, Hemant/PW-10 or Gajender/PW-11. This fact
is also not recorded in the statement given by PW-5 under Section 161
of the Code marked Ex.PW-5/D1 as is clear from the cross-
examination of PW-5 on 20th April, 2010.
38. PW-5 has testified that appellant Sushil Arora and Rajesh
Pandey were travelling in the rear seat of the Indica car and had
uttered the words "Maro salo ko" and used abusive language. This
has not been testified by any other witness. I would treat this version
as another exaggeration made by PW-5 in order to implicate
appellants Sushil Arora and Rajesh Pandey. On the question of
presence of appellants Sushil Arora and Rajesh Pandey in the Indica
car, I have subsequently examined and considered the evidence and
material on record.
39. Paramjeet/PW-5 has stated that Mahendra Singh/PW-9 was
travelling in "Verna" car, whereas other witnesses have described the
car being used by Mahendra Singh/PW-9 as Esteem. This minor
variation, in my opinion, cannot be a ground to disbelieve and reject
the entire testimony of Paramjeet Singh/PW-5. "Verna" and "Esteem",
it is common knowledge, are mid segment cars manufactured by two
different companies. Minor confusion as to the name of the car cannot
be a ground to completely reject the testimony of PW-5.
40. Varun/PW-6 in his deposition has affirmed that he along with
Sunil/PW-1, Paramjeet Singh/PW-5, Surender/PW-8 and deceased
Ankit on 22nd February, 2009 had gone to Karol Bagh and had
reached Chintu Car Point in Santro car and were standing outside.
After some time Mahendra Singh/PW-9 came out of the Chintu Car
Point office and they were to leave the place. Varun/PW-6 and
deceased Ankit on one side and the four accused, namely, Rajesh
Pandey, Vishnu, Sonveer and Hemant Garg, who were present in the
Court, had a brawl over the issue of taking out of vehicle. Mahendra
Singh/PW-9 had intervened. Five of them thereafter left in the Santro
car and had proceeded towards Budha Garden (Budha Jayanti Park)
with PW-5 at the driver's seat. They had stopped near a cold drink cart
to buy water and cold drink. In the meanwhile, one Indica car silver
colour bearing number 2192 had overtaken them and fired shots at
their vehicle. One shot had pierced the fixed small glass behind rear
side window glass and hit Ankit below his armpit as he was sitting on
the right side rear seat of the car. They moved their vehicle but had to
stop at the traffic light as there was a traffic jam. They took their
vehicle on the left side of the road, got down and started running.
Sonveer and Vishnu were identified by Varun/PW-6 in the Court as
the occupants of the Indica car who had fired at them. These two had
taken out the upper halves of their bodies from the Indica car while
firing at them. At a traffic light, one bullet had hit Ankit and another
had hit Surender/PW-8. Ankit had fallen near the Santro car.
Varun/PW-6 had also identified accused Hemant Garg as the driver of
the Indica car, not by name, as he was not familiar with his name, but
by identifying him. In his examination in chief, PW-6 had indicated
that there were two more persons in the Indica car, but he was unable
to see them. Varun/PW-6 was declared hostile and in his cross-
examination by the Additional Public Prosecutor, he accepted that
Mahendra Singh/PW-9 had gone to Chintu Car Point to collect Rs.10
lakh. Further, he had come to know the name of accused Rajesh
Pandey as he was being addressed as such and he had seen him
coming in and going out of the Chintu Car Point office and
communicating with other persons present outside. He then accepted
that Rajesh Pandey was present in the Indica car with accused Vishnu,
Sonveer and Hemant Garg. However, he did not identify and state
that appellant Sushil Arora was present in the Indica car with the
accused persons, though, he was confronted with his statement under
Section 161 of the Code dated 8th July, 2009 marked Ex.PW-6/PB. In
his cross-examination on behalf of accused-Rajesh Pandey,
Varun/PW-6 has accepted that no person from the office of Chintu Car
Point had come out when there was physical scuffle, which had lasted
around 5-7 minutes. None of them had received any physical injury in
the altercation outside Chintu Car Point. He had difficulty in getting
down from the Santro car as the left side door had got stuck against a
tree. PW-6 in the cross-examination, had testified that there were two
other persons in the Indica car but he could not identify them. On
Court question, PW-6 admitted that he had no prior acquaintance with
Sonveer and Vishnu and had seen them at Chintu Car Point along with
others.
41. Surender/PW-8, the injured, has testified being present outside
Chintu Car Point, which place they had visited as Mahendra
Singh/PW-9 had to collect Rs.10 lakh from a person named Sushil
Arora. Three-four other persons were present outside the office.
Mahendra Singh/PW-9 came out at about 1.00-1.15 P.M. and
thereafter, they decided to leave. As there was a motorcycle in front
of the Santro car, deceased Ankit and Varun/PW-6 had asked 3-4 boys
to move the motorcycle. There was an exchange of words and
thereafter a physical altercation between them. Mahendra Singh/PW-9
and Sunil/PW-1 had intervened and got them separated. They, namely,
Sunil/PW-1, Varun/PW-6, Paramjeet/PW-5 and he, i.e., Surender/PW-
8 along with deceased Ankit sat in the Santro car and had proceeded
towards Budha Garden side and had stopped to buy cold drink/water
from a cart vendor. In the meanwhile, an Indica car overtook them
from behind. Bullets were fired and one bullet had pierced the small
fixed glass near the rear right side door of the Santro car and had hit
Ankit below his armpit. Two boys in the Indica car had firearms and
had fired. One boy, who was sitting on the left side, had taken out is
upper body. The second boy was on the rear left side window seat in
the Indica car. There were 4-5 occupants in the Indica car. He could
not give their names, but had identified Sonveer and Vishnu as the two
boys who had fired. He also identified Hemant Garg as the person
who was driving the Indica car. PW-8 in his examination in chief was
somewhat ambivalent as he did not specifically depose on the
presence of Hemant Garg amongst the boys with whom there was a
quarrel outside Chintu Car Point. However, in his cross examination
by counsel for Hemant Garg on 08/02/2010, PW-8 categorically
denied the suggestion that the appellant Hemant Garg was not present
at Chintu Car Point, or he was not driving the car at the time of
incident or that he had wrongly identified him at the instance of the
police. Surender/PW-8 had stated that there were one or two more
boys in the Indica car but he was unable to see them and, hence, could
not identify them with certainty. To save themselves, they had driven
away but had to stop at the red light. They got down from the car and
ran. A firearm bullet had hit him below his waist. Ankit was sitting
on the rear seat and had got down and was hit by a bullet.
42. The Appellants submit that Surender/PW-8 was not an injured
eye witness and has been introduced and engrafted. He was not
present and was never injured or the injury was self-inflicted.
Referring to the cross-examination on behalf of Vishnu and Sonveer
conducted on 07.09.2010, it was submitted that the conduct of
Surender/PW-8, who claimed profuse and extensive bleeding
throughout and while travelling by bus, but did not take immediate
and available medical aid and assistance at AIIMS and had
purportedly proceeded to the office at Mehrauli and then came to
AIIMS for treatment, was implausible and unnatural conduct. My
attention was also drawn to the forensic reports/Exh. HC-A, Exh. HC-
B, and Exh. HC-C, as per which the clothes worn by Surender/PW-8
did not have the bullet hole or charring. Further, as per the MLC of
Surender/PW-8 marked Ex.PW-39/A, there was charring around the
wound indicative that the firing had taken place from a close range.
Lastly, the MLC of Surender/PW-8, Ex. PW-39/A, records the place
of occurrence as Connaught Place and not T-Point, Simon Bolivar
Marg.
43. It is correct that the clothes worn by Surender/PW-8 were not
produced and as per the forensic report Exh. HC-C, no bullet hole was
found, but this is explainable in view of the place of the wound/injury.
Surender/PW-8 was hit by the fire arm bullet on his left side below
waist near his hip. Thus, absence of hole etc. on the clothes could be
explained. Similarly, description of the place of occurrence or the site
of crime as Connaught Place as recorded in the MLC Ex.PW-39/A
cannot be a ground to disbelieve Surender/PW-8. Connaught Place
was not the exact location, but was not too far from the place of firing.
Surender/PW-8 was a conductor working with Sunil/PW-1. He was
not a man of means and did not possess even a mobile phone. He had
gone to Chintu Car Point as per the instructions given by Sunil/PW-1
as his employer's uncle Mahendra Singh/PW-9 had given a loan of
Rs.10 Lacs which was to be recovered. Description would well reveal
and indicate lack of knowledge and awareness of road names,
location, and more importantly absence and lack of collusion and
deliberation between him and others present. It discloses spontaneity.
44. Surender/PW-8 was certainly admitted to the Trauma Centre of
AIIMS as per MLC Ex.-PW39/A on 22.02.2009 at 4:00 p.m., i.e.
nearly two hours after the occurrence. PW-8 had a round wound over
his left hip region about 1 centimetre in diameter with some charring
around the wound. Charring would it is submitted indicate firing from
a close range, which was possible. It is apparent that the projectile had
not entered in the body of PW-8 and had grazed past his hip, giving
the charring effect. Charring is not contrary and antithesis of the
prosecution version or PW-8's testimony. PW-8 was examined by Dr.
Anindaya/PW-39 who has also deposed about the tenderness around
the injury and has stated that the patient could remain alive for three
hours after sustaining this kind of injury. Police Control Room records
Ex. PW29/A and Ex. PW 30/A also affirm PW-8's admission in the
hospital and that he had suffered injury in the occurrence. Assertion by
Surender/PW-8 that he was bleeding profusely yet had travelled in bus
as from place of occurrence to Mehrauli, etc. was not made in the
examination-in-chief. It is only in the cross examination that
Surender/PW-8 had stated that he was bleeding profusely while
running to catch the bus and was bleeding even when he had boarded
the bus. On further cross-examination, PW-8 had professed that there
was blood on the seat of the bus and his clothes were soaked in blood
but nobody asked him why was he bleeding. However, PW-8 had
accepted that the bleeding had stopped by the time he had reached
AIIMS. It is difficult to perceive that the bleeding would stop on its
own without medical intervention. I would hold that Surender/PW-8's
version on bleeding is an exaggeration and an overstatement made in
his cross-examination and this part has to be discarded. The attempt
under cross-examination was to magnify and overstate the extent of
injury suffered. PW-8 did stretch and exaggerate, but this would not
be a ground to propound and hold that he was a planted witness.
45. As per the serological report Ex.HC-C2, human blood of group
'A' was found on Ex.C-14(b) i.e. underwear statedly worn by
Surender/PW-8. Similarly, human blood was found on the pant worn
by Surender/PW-8, but blood group could not be ascertained for want
of reaction. Blood group of Ankit was also 'A' but this would not
mean, as asserted, that the human blood found on the pant and blood
of group 'A' found on the underwear of Surender/PW-8 must have
been of Ankit.
46. I would therefore reject the appellants' contention that
Surender/PW-8 was not present in the Santro car at the time of the
occurrence and the injury as reflected in the MLC Ex.39/A was either
not there or was self-inflicted. These contentions are untenable and
unacceptable.
47. Before I specifically examine evidence, ocular and
documentary, against each of the appellants, I would deal with some
of the contentions relating to First Information Report (FIR, for short),
inquest report, and common intention.
48. I begin by referring to the FIR/Ex.PW25/A. Sunil/PW-1 in his
complaint marked Ex.PW-1/A, which was converted into the FIR
marked Ex. PW25/A, refers to the presence of Sushil Arora and
Rajesh Pandey at Chintu Car Point and that 3-4 boys, who were
standing outside Sushil Arora's office and were coming in and going
out of the office. The complaint Ex. PW 1/A records that these boys
were also present on 20th February, 2009, when Sunil had visited the
same office with his uncle Mahendra Singh/PW-9 and had met Sushil
Arora and Rajesh Pandey. While taking out the car on 22nd February,
2009, Varun/PW-6 had an altercation with 3-4 boys as a motorcycle
was obstructing their car and there was a scuffle between them. Sunil
had intervened and thereafter they drove away. The complaint names
Sushil Arora and Rajesh Pandey as occupants of the Indica car with
three other men with whom altercation had taken place and that both
Sushil Arora and Rajesh Pandey, were present in the Indica car at the
time of firing, along with three men. Names of the other occupants in
the Indica car were not stated.
49. It was submitted that the FIR should have been registered on the
basis of the complaint or statement made by Manveer Singh/PW-2,
who was the first one to have called the Police Control Room from his
mobile and had informed them about the firing and involvement of
grey colour Indica car bearing number 2192. It was submitted that
Inspector S.S. Rana/PW-26 and Inspector Jagat Singh/PW-47 of
Police Station-Chanakya Puri had deliberately refused to accept
Manveer/PW-12 presence at the place of occurrence, though this
stands recorded in the call records and accepted by Manveer
Singh/PW-2. I would accept that Manveer Singh/PW-2 was present at
the spot and would have met Inspector S.S. Rana/PW-26 and Inspector
Jagat Singh/PW-47. However, it would not be a good ground or
justification to discard and treat the FIR/Ex.PW-25/A based on
Sunil's/PW-1's statement marked Ex. PW-1/A, as invalid and bad in
law. Police had to move with alarcity and both Inspector S.S.
Rana/PW-26 and Inspector Jagat Singh/PW-47 had promptly
proceeded to Trauma Centre, AIIMS to ascertain facts and get
information and know well being of the victim. This was solicitous
and should be appreciated. Till then, the police was unaware of the
name and identity of the victim, his condition and other details. On
reaching the hospital they had met Sunil/PW-1, who was with the
victim deceased-Ankit in the Santro car. There was nothing wrong or
illegal in the Investigating Officer Inspector S.S. Rana/PW-26
recording the statement, Ex.PW-1/A of Sunil/PW-1 and thereafter
converting the same into the FIR, Ex.PW-25/A.
50. There is divergence of opinion between Gita Mittal J. and R.K.
Gauba, J., on the alleged delay in the registration of FIR and on failure
to lead evidence that the FIR upon registration was duly
communicated and sent to the Magistrate.
51. It emerges that the firing incident had taken place at about 2:00
p.m. and Ankit Minocha was thereafter admitted to Trauma Centre at
AIIMS as per MLC/Ex.PW-50/A at 2:20 p.m.. FIR as per the
prosecution version was recorded on the basis of the statement made
by Sunil/ Ex.PW-1/A at Police Station Chanakya Puri, at about 19:00
hours, after a time gap of about 5 hours. This time gap, I would
observe, is not substantial. Evidence reveals that the police had
proceeded and acted swiftly and with adroitness in reaching the place
of occurrence and had then proceeded to Trauma Centre, AIIMS.
Recording of the statement (Rukka), sending of the Rukka to the
Police Station and thereafter registration of the FIR would necessarily
take time. ASI Om Prakash /PW-25 had recorded the said FIR on the
basis of Rukka and thereafter had sent the said Rukka to Inspector S.S.
Rana/ PW-26. He proved the daily diary entry bearing DD No.21A
and 22A marked Ex. PW-25/B and Ex-PW25/C. The said Rukka was
brought by Constable Satpal /PW-15, who had joined investigation
with Inspector, SHO Jagat Singh /PW-47 and had at first reached the
traffic light at Budha Garden, Ridge Road and thereafter proceeded to
AIIMS Trauma Centre. Cross-examination of Constable Satpal/ PW-
15 which is fairly in detail and extensive, would reveal that he was not
specifically confronted and questioned on the ante timing of the FIR
or the delay. In the cross examination, the suggestion given was that
on the same day itself the witness had visited Chintu Car Point at Pusa
Road and had met Pushkar Raj/ PW-6. A clear indication that the
statement of Sunil marked Ex.PW-1/A and the FIR had named Sushil
Arora and had referred to Chintu Car Point. ASI Om Prakash/ PW-25
was hardly cross-examined and no effective suggestion was given to
show and establish that the FIR was ante timed. I would therefore
agree that the five hours delay in registration of FIR given the
aforesaid facts and circumstances with events happening at a fast pace,
cannot be termed as belated. However, I would accept the argument
and contention of the appellants that even if the FIR was not ante
timed and was not delayed, the question of the truth and falsity of the
assertions made therein is a separate aspect.
52. On the third aspect again I would agree with the view taken by
R.K. Gauba J. in his judgment that assuming that there was delay in
compliance with Section 157(1) of the Code in forwarding the copy of
FIR to Illaqa Magistrate, this would not demolish or denounce the
trustworthy evidence on record, as has been held in Munshi Prasad
Vs. State of Bihar, (2002) 1 SCC 351 and Bhajan Singh @ Harbhajan
Singh and Ors. Vs. State of Haryana, (2011) 7 SCC 421. There is no
rule of law that the prosecution must fail and result in acquittal if the
prosecution fails to establish receipt of the report under Section 157
(1) of the Code at the end of the Magistrate. Similarly, I would record
and reject that the delay in preparation of inquest papers in the facts of
the present case would help the defence and result in acquittal.
Homicidal death of Ankit, time of occurrence and death, cause of
death and that the perpetrators had fired from the Indica car, are facts
beyond realm of debate and doubt.
53. I must reject the argument of Hemant Garg, Rajesh Pandey and
Sushil Arora that Section 34 of the IPC would not be attracted and
applicable to the occupants of the Indica car, for mere occupation of
the car would not show and establish common intention. In the facts
and circumstances of the present case, the said contention is flawed
and should be outright rejected. This is a case wherein the occupants
of the Santro car had left and driven away from Chintu Car Point.
They had stopped to have water and cold drink from a cart parked near
the Buddha Jayanti Park. The said Santro car, however, was pursued
and waylaid by an Indica car, which was being driven at a great speed.
Two of the occupants, as noticed below, were armed with firearms.
They overtook the parked Santro car standing to purchase cold
drink/water. Occupants from the front and rear window on the left
side of the Indica car had fired bullets at the occupants of the Santro
car. The occupants of the Santro car, to save themselves, drove and
moved ahead but could not escape and had to stop in view of the
congestion at the red light. In the process, a minor accident took place.
Indica car followed the Santro car and thereafter, the second round of
firing took place. As per the statement of Manveer Singh/PW-2, two
or three occupants of the Indica car got down and had fired. Someone
at that time was at the steering wheel of the Indica car. The facts
would reveal that this is a case wherein the Indica car with two
persons armed with weapon, had deliberately and intentionally
followed the Santro car with a desire and purpose to cause injuries,
had fired. It is not a case wherein there was a sudden quarrel and fight
without common intent of other occupants of the Indica car, one or
more had brandished the firearms, which were in their custody, to fire
and kill one and injure a third person. Regardless of whether the other
occupants of the car had made any statement or not, the impelling
facts would disclose a concerted and deliberate intent to follow the
Santro car and fire at the occupants of the said car. Driver of the
Indica car, because of his overt act in driving the car, would be
attributed with common intention. Others present in the car, even if
not involved in the firing, would be attributed for their common
intention, for their presence in the car would indicate and reflect this
intention, knowing the prior animosity be the money dispute or quarrel
or brawl, which had taken place shortly before.
54. At this stage I would also take on record the dates on which
each appellant was arrested and dates when the chargesheets were
filed. S.S. Rana/ PW-26 had arrested Sushil Arora on 24th February,
2009. Charge-sheet against him was filed by the prosecution on 23 rd
May, 2009 and the case was committed to the Court of Sessions vide
order dated 4th August, 2009. Hemant Garg, Sonveer, and Vishnu were
arrested on 10th August, 2009, 27th August, 2009 and 29th September,
2009 respectively. First supplementary charge-sheet was filed against
them on 24th October, 2009. Rajesh Pandey was the last person to be
arrested on 11th November, 2009. Consequently the second
supplementary charge-sheet was filed on 2nd January, 2010. Charges
against Sushil Arora were framed on 22nd August, 2009, whereas
charges against other four appellants were framed on 29th January,
2010.
55. I would now examine evidence against each of the appellants on
their presence in the Indica car and whether prosecution has been able
to establish their case against each one of them, beyond doubt. As
noticed above, names of the appellants Sushil Arora and his friend
Rajesh Pandey figure in the FIR and were mentioned by Sunil/PW-1
in his statement marked Ex. PW-1/A. Names of accused Sonveer and
Vishnu or for that matter Hemant Garg, did not figure in the FIR or
the statement marked Ex. PW-1/A.
Hemant Garg, Sonveer, and Vishnu
56. Appellant-Hemant Garg is the registered owner of Indica car
bearing number DL 3CAX 2192 , a fact accepted by him in his
statement under Section 313 of the Code and by his wife Shalini who
had appeared and deposed as defence witness DW-2.
57. Hari Shah/PW-31 from the Transport Department, Saket had
stated that car bearing No.DL-3CAX 2192 was registered in the name
of the appellant, Hemant Garg. He had produced computerized print
out which were marked Ex.PW-31/A. No doubt PW-31 in his cross-
examination has stated that the request from the police to provide the
details was received on 23rd May, 2009, and photocopy of the said
request has been exhibited as Ex.PW-31/DA, there is sufficient
material on record to show that the police had started investigation on
the involvement of Hemant Garg immediately after the occurrence and
had even visited his residence.
58. Ownership details of the said car had come to the knowledge of
the police on the basis of computerised records as deposed to by
Inspector Jagat Singh/PW-47, the SHO of Police Station Chanakya
Puri and Inspector S.S.Rana/PW-26, who was the first Investigating
Officer. Inspector Jagat Singh/PW-47, who was involved with the
investigation, in his cross-examination has stated that they had visited
the house of Hemant Garg, owner of the Indica car on 23rd February,
2009, which is a day before the appellant-Sushil Arora was arrested on
24th February, 2009.
59. Prosecution had filed application dated 20th March,2009
seeking issuance of non bailable warrants against Hemant Garg, which
was allowed by the Metropolitan Magistrate on 24th March,
2009.Subsequently, Hemant Garg had applied for anticipatory bail
vide application dated 17th April,2009, which was rejected vide order
dated 20th April, 2009 passed by the Additional Sessions Judge.
60. Hemant Garg was involved in a case FIR No. 535/2002 under
Sections 365,366 and 376 IPC of PS Timar Pur and having jumped
bail was a proclaimed offender wanted by law. Hemant Garg
surrendered in this case on 6th August,2009 and had moved an
application through his wife stating, inter alia, that he wanted to
surrender with a request for Test Identification Parade (TIP, for short)
in the present case.
61. Inspector Arun Kumar / PW-48/A, who took over investigation
of the case on 9th July, 2009 has stated that he had moved an
application for TIP of Hemant Garg on 7th August, 2009 after he came
to know that Hemant Garg was in judicial custody in FIR
No.535/2002 Police Station Timarpur under Sections 366/377/34 IPC.
The application for TIP was allowed on 10thAugust, 2009 by the
Metropolitan Magistrate and Hemant Garg, who had appeared in
muffled face, was sent to the judicial custody on being arrested in the
present FIR.
62. On 26thAugust, 2009, TIP was conducted by Mr. Jitender
Mishra, Metropolitan Magistrate /PW-35. Ranjeet Singh/PW-4 and
Paramjeet Singh/ PW-5, however, failed to identify Hemant Garg vide
reports Ex.PW-4/D2 and Ex.PW-5/D2 respectively. The prosecution
accepts that two witnesses namely, Sunil /PW-1 and Surender/PW-8
had also been summoned to Tihar Jail for the TIP of Hemant Garg on
26thAugust, 2009. Mr. Jitender Mishra /PW-35, Metropolitan
Magistrate in his testimony has not stated or confirmed about the
presence of Sunil /PW-1 and Surender /PW-8 and why they did not
participate in the TIP held on 26thAugust, 2009. Counsel for the
appellant Hemant Garg has vociferously, with some merit, questioned
the prosecution and their failure to conduct TIP of Hemant Garg on
26th August, 2009 by Sunil /PW-1 and Surender /PW-8. Inspector
Arun Kumar/PW-48/A in his testimony has accepted that Ranjeet
Singh/PW-4 and Paramjeet Singh/ PW-5 had failed to identify Hemant
Garg on 26th August, 2009 and that on 27th August, 2009 another
application for TIP of Hemant Garg by Sunil /PW-1 and Surender
/PW-8 marked Ex.PW-49/C, was moved. However, in his cross-
examination by counsel for Hemant Garg, Arun Kumar/PW-48/A has
accepted that in the first application filed for TIP, which was held on
26th August, 2009, he had mentioned that the TIP of Hemant Garg was
conducted by four witnesses and the said witnesses including Sunil
/PW-1 and Surender /PW-8 had been directed to come for TIP. He
had claimed that Sunil /PW-1 and Surender /PW-8 could not
participate the TIP on 26th August, 2009 as the Metropolitan
Magistrate, i.e., Mr. Jitender Mishra/ PW-35 having conducted TIP by
two witnesses, had directed him to move a fresh application for
remaining two witnesses. The said version given by PW-48/A is
debatable. However, it is equally correct that Sunil /PW-1 and
Surender /PW-8 in the TIP conducted on 28thAugust, 2009 before Mr.
Surya Malik Grover / PW-44, Metropolitan Magistrate, had identified
Hemant Garg vide Ex.PW-44/A and Ex.PW-44/A1. On the question of
identification in the TIP proceedings before Mr. Surya Grover
Malik/PW-44, Hemant Garg had stated that the TIP was conducted at
the instance of the Investigating Officer to falsely implicate him as he
was shown to the witness and TIP was against law as he was not asked
to change his position. At the same time, undeniably, Hemant Garg
had participated in the second TIP proceedings, Ex. PW-44/A and Ex.
PW-44/A1, without demur and protest. Hemant Garg was sent to
judicial custody on 10th August, 2009 and even earlier was in judicial
custody. Order granting police remand of Hemant Garg was passed
on 29th August, 2009 after the second TIP was conducted on 28th
August, 2009. If Hemant Garg had been shown to the witnesses
Sunil/PW-1 and Surender/PW-8 at any time before the second TIP, he
would have protested, which would have been recorded in the TIP
proceedings by PW-44. It would not be therefore appropriate to per-se
reject the TIP on 28th August,2009 as being dishonest, managed and
inconsequential.
63. Hemant Garg was identified by Sunil/PW-1 and Surender/PW-8
in the court. Varun/PW-6 had also identified him in the court.
64. Shalini, wife of Hemant Garg, who had appeared as DW-2, has
accepted that Hemant Garg was the owner of the Indica car number
DL-3CAX-2192.DW-2 has claimed that her husband, Hemant Garg,
did not know how to drive and they used to have a driver named
Ankur. DW-2 herself knew how to drive and had produced her driving
licence. Pertinently, the driver was never produced in the Court,
though it was claimed by DW-2 that she used to pay Rs.3,000/- per
month to the driver. As per DW-2, Hemant Garg used to have a shop
of pearls etc. at Beedanpura, Karol Bagh, New Delhi. Hemant Garg in
his statement under Section 313 of the Code had stated that he had
given his car to Yoginder @ Vikas s/o Raj Kishore on 22nd February,
2009 for the purpose of sale as he wanted to purchase a new car. At
the time of occurrence, he was at his shop at 10/2444, Beadon Pura,
Karol Bagh. He did not know how to drive and his wife Shalini used
to drive the car. Order dated 20th April, 2009 rejecting Hemant Garg's
application for anticipatory bail, does not note any contention that
Hemant Garg did not know how to drive. It however records the
contention of Hemant Garg that he had given the Indica car to
Yogender Yadav, but was unable to state since when. Inspector S.S.
Rana in his reply dated 4th April,2009 to an application filed
regarding Yogendra had stated they had interrogated him as he was in
contact with Hemant Garg on telephone on the date of occurrence.
Evidence of Shalini DW-2 or the version of Hemant Garg of not
knowing driving or that they had engaged the driver Ankur would
falter and is completely inconsistent with the testimony of the eye
witnesses Sunil /PW-1, Paramjeet Singh /PW-5, Varun /PW-6,
Surender /PW-8, to the effect that Hemant Garg was driving the
Indica Car. Plea of alibi raised by Hemant Garg that he was not
physically present at the particular place at the time of commission of
the offence but was present at that point of time at another place has to
be established by the accused with absolute certainty so as to exclude
possibility of his presence at the place of occurrence. When the
prosecution has been able to discharge their burden and establish by
reliable evidence presence of an accused at the scene of crime, then
the court would be slow to accept counter allegation, unless the
accused adduces evidence of quality and standard that reasonable
doubt would arise. Burden on the accused in such circumstances is
heavy.(See Binay Kumar Singh V/s State of Bihar, (1997) 1SCC
283).
65. Submission on behalf of Hemant Garg predicated on statement
of Shalini/DW-2 viz. mobile Sim No. 9999010588 and call record
details,Ex. PW49/DS, as rightly observed by R.K.Gaba J. is of no help
as one can use the mobile phone even while driving.
66. On the aspect of dock identification, the Supreme Court in
Ashok Debbarma @ Achak Debbarma Vs. State of Tripura 2014 (3)
SCALE 344 has referred to earlier case law on the subject of TIP and
dock identification and has observed:
"20. We have gone through the oral evidence of PW 10
and PW 13 and, in our view, the trial court and the High
Court have rightly appreciated their evidence and the
involvement of the appellant in the above incident,
including the fact that he had fired at various people,
which led to the killing of relatives of PW 10 and PW 13.
We are of the view that since the accused persons were
known to the witnesses and they were identified by face,
the fact that no test identification parade was conducted at
the time of investigation, is of no consequence. The
primary object of the test identification parade is to
enable the witnesses to identify the persons involved in
the commission of offence(s) if the offenders are not
personally known to the witnesses. The whole object
behind the test identification parade is really to find
whether or not the suspect is the real offender. In Kanta
Prashad v. Delhi Admn. [AIR 1958 SC 350 : 1958 Cri LJ
698] , this Court stated that the failure to hold the test
identification parade does not make the evidence of
identification at the trial inadmissible. However, the
weight to be attached to such identification would be for
the court to decide and it is prudent to hold the test
identification parade with respect to witnesses, who did
not know the accused before the occurrence. Reference
may also be made to the judgment of this Court
in Harbajan Singh v. State of J&K [(1975) 4 SCC 480 :
1975 SCC (Cri) 545] , Jadunath Singh v. State of
U.P. [(1970) 3 SCC 518 : 1971 SCC (Cri) 124]
and George v. State of Kerala [(1998) 4 SCC 605 : 1998
SCC (Cri) 1232] .
21. The abovementioned decisions would indicate that
while the evidence of identification of an accused at a
trial is admissible as substantive piece of evidence, it
would depend on the facts of a given case as to whether
or not such a piece of evidence can be relied upon as the
sole basis of conviction of an accused.
In Malkhansingh v. State of M.P. [(2003) 5 SCC 746 :
2003 SCC (Cri) 1247] , this Court clarified that the test
identification parade is not a substantive piece of
evidence and to hold the test identification parade is not
even the rule of law but a rule of prudence so that the
identification of the accused inside the courtroom at the
trial can be safely relied upon. We are of the view that if
the witnesses are trustworthy and reliable, the mere fact
that no test identification parade was conducted, itself,
would not be a reason for discarding the evidence of
those witnesses. This Court in Dana Yadav [Dana
Yadav v. State of Bihar, (2002) 7 SCC 295 : 2002 SCC
(Cri) 1698] has examined the points on the law at great
length and held that: (SCC p. 316, para 38)
―(c) The evidence of identification of an accused in
court by a witness is substantive evidence whereas that of
identification in test identification parade is, though a
primary evidence but not substantive one, and the same
can be used only to corroborate the identification of the
accused by a witness in court.‖
So far as the present case is concerned, PW 10 and PW
13 have identified the accused in open court which is the
substantive piece of evidence and such identification by
the eyewitnesses has not been shaken or contradicted.
The trial court examined in detail the oral evidence
tendered by those witnesses, which was accepted by the
High Court and we find no error in the appreciation of the
evidence tendered by those witnesses."
Recently, in Mohd. Sajjad @ Raju @ Salim Vs. State of West
Bengal Criminal Appeal No.1953/2010 decided on 6th January, 2017,
the Supreme Court has referred to an earlier decision in Lal Singh Vs.
State of U.P.(2003) 12 SCC 554 wherein it has been held as under:
"28. The next question is whether the prosecution has
proved beyond reasonable doubt that the appellants are
the real culprits. The value to be attached to a test
identification parade depends on the facts and
circumstances of each case and no hard-and-fast rule can
be laid down. The court has to examine the facts of the
case to find out whether there was sufficient opportunity
for the witnesses to identify the accused. The court has
also to rule out the possibility of their having been shown
to the witnesses before holding a test identification
parade. Where there is an inordinate delay in holding a
test identification parade, the court must adopt a cautious
approach so as to prevent miscarriage of justice. In cases
of inordinate delay, it may be that the witnesses may
forget the features of the accused put up for identification
in the test identification parade. This, however, is not an
absolute rule because it depends upon the facts of each
case and the opportunity which the witnesses had to
notice the features of the accused and the circumstances
in which they had seen the accused committing the
offence. Where the witness had only a fleeting glimpse of
the accused at the time of occurrence, delay in holding a
test identification parade has to be viewed seriously.
Where, however, the court is satisfied that the witnesses
had ample opportunity of seeing the accused at the time
of the commission of the offence and there is no chance
of mistaken identity, delay in holding the test
identification parade may not be held to be fatal. It all
depends upon the facts and circumstances of each case.
43. It will thus be seen that the evidence of identification
has to be considered in the peculiar facts and
circumstances of each case. Though it is desirable to hold
the test identification parade at the earliest-possible
opportunity, no hard-and-fast rule can be laid down in
this regard. If the delay is inordinate and there is evidence
probabilising the possibility of the accused having been
shown to the witnesses, the court may not act on the basis
of such evidence. Moreover, cases where the conviction
is based not solely on the basis of identification in court,
but on the basis of other corroborative evidence, such as
recovery of looted articles, stand on a different footing
and the court has to consider the evidence in its entirety.‖
67. In Mohd. Sajjad (Supra), the Supreme Court observed that the
prosecution witnesses had not given any identification marks/ special
features or attributes of the four accused. Further, there was no special
circumstance which would have invited attention of the witnesses so
as to register or notice special features or attributes of the accused. In
the said case the offence was committed at night and the witnesses had
only fleeting moments to see the perpetrators. This judgment refers
the question of delay in holding of the TIP, its negative facets as
highlighted in Subhash Vs. State of U.P. (1987) 3 SCC 331 and
Musheer Khan Vs. State of M.P.(2010) 2 SCC 748. Reference can be
also made to another judgment of the Supreme Court Mukesh Vs.
State (Govt. of NCT of Delhi) 2017 (6) SCC 1 on the question of TIP,
wherein it was observed that the law was clear that even if there was
no previous TIP the court could appreciate and rely on dock
identification. TIP was not a sine qua non in every case, if from
circumstances guilt is otherwise established. A detailed discussion on
the question of dock identification is also to be found in the case of
Prakash Vs. State of Karnataka 2013 (12) SCC 133 wherein it has
been held that TIP is not mandatory nor can it be claimed as a matter
of right. The purpose of TIP is pre trail identification and to assure the
investigating agency that they were on right track. It also provides
corroboration to the evidence given by the witness or victim in the
trial. TIP is undertaken out of caution when the suspect was a
complete stranger to the witness or victim. TIP is considered desirable
unless the suspect was seen by the witness or victim at some length of
time. Failure to hold TIP however, would not make inadmissible the
evidence of identification in court, but could affect the weight to be
given to such evidence, which is a matter of fact for the courts to
decide. In some cases it has been even held that failure of a victim or
witness to identify a suspect in the TIP is not fatal if the guilty is
otherwise established.
68. Identification of Hemant Garg by the three witnesses, namely,
Sunil/PW-1, Varun/PW-6 and Surender/PW-8, therefore, carries
weight and is of importance. Noticeably, he is the owner of the Indica
car linked with the crime. This is a relevant fact which corroborates
his identification and Hemant Garg's involvement as deposed.
69. Head Constable Dharmender Kumar, who had deposed as DW-
7, had stated that there was no DD entry regarding recovery and
seizure of Indica Car bearing No.DL 3CAX 2192 on 9th April, 2009.
DW-7 was working as Malkhana Moharrer in Police Station
Vikaspuri. Non recording of any DD regarding recovery of any Car
should not be a ground to discard or negate the evidence regarding
involvement of the aforesaid car on the date of occurrence. It is a fact
that the car was subsequently recovered and was produced in the court
and was identified by the witnesses.
70. Sonveer was arrested on 27th August, 2009 from Coffee Home
Parking, Hanuman Mandir, Connaught Place, New Delhi, on secret
information. This fact has been affirmed by Head Constable Vijay
Kumar/PW-17, who was assisting Inspector Arun Kumar/PW-48A.
The arrest memo and personal search memo were proved as Ex.PW-
17/A and Ex.PW-17/B, respectively. His evidence is affirmed by
Head Constable Subhash Chand/PW-40 and Inspector Arun
Kumar/PW-48A, who is also referred to as PW-49. In cross-
examination of PW-48A/49, it was suggested that Sonveer was picked
up from his residence at Vijay Nagar, Ghaziabad, U.P. about 10 days
before being formally arrested. Sonveer in his statement under
Section 313 of the Code had stated that he was picked one day before
being formally arrested on 27th August, 2009. In my opinion the
arrest of Sonveer on 27th August, 2009 should be accepted. Presence
of Sonveer outside Chintu Car Point has been affirmed by Sunil/PW-
1, Paramjeet Singh/PW-5, Varun/PW-6, Surender/PW-8 and
Hemant/PW-10 and Gajender/PW-11. The witnesses Sunil/PW-1,
Paramjeet Singh/PW-5, Varun/PW-6 and Surender/PW-8 have also
referred to the accused-Sonveer being present in the Indica car and
one of the two who had fired from the firearm held by him.
71. As per the prosecution version, Sonveer upon investigation had
made two disclosure statements Ex.PW-17/D on 27th August, 2009
and Ex.PW-17/E on 18th September, 2009. The first disclosure
statement Ex.PW-17/D did not lead to any recovery. However, the
second disclosure statement Ex.PW-17/E had resulted in police
finding out and ascertaining that the firearm used had already been
taken into possession by the police from police station Mangol Puri
upon arrest of one Sanjay @ Sanju S/o Sadhu Ram, resident of S-875,
Mangol Puri, Delhi in FIR No.150/2009, Ex.PW-36/A, recorded on
14th May, 2009 on the basis of rukka, Ex.PW-37/C by Sub Inspector
Ajay Karan Sharma/PW-37. Seizure memo, Ex.PW37/A would reveal
that the weapon recovered from Sanjay on 13th May, 2009 was an
automatic pistol with marking "Made in Italy" and four live cartridges,
each bearing mark KF 7.66 engraved at the bottom. One of them had
an hammer mark. Sonveer had, as per the police, revealed that this
weapon was used by him in the crime in question and he had passed
on the firearm to Sanjay, who appeared as PW-46. No doubt
Sanjay/PW-46 had not supported the prosecution case, but this was
natural for admission of recovery of pistol would have implicated him
in the charge sheet filed against him for offences under the Arms Act.
It is doubtful whether PW-46 could have been asked to depose as a
witness without his consent vide Balasaheb Alias Ramsh Laxman
Deshmukh versus Satet of Maharashtra and Another, (2011) 1 SCC
364.
72. The firearm, i.e., the pistol having being recovered on 13th
May, 2009 and being in police custody before the disclosure statement
of Sonveer Ex.PW-17/E was recorded on 8th September, 2009 would
not fall within the purview of Section 27 of the Evidence Act.
However, Section 8 of the Evidence Act would be applicable as held
in Chandrakant Jha v. State (Govt. of NCT) of Delhi, 2016 SCC
OnLine Del 495. This judgment has been extensively quoted by Gita
Mittal J., the relevant portion of which reads as under:-
―12. Sarkar on Law of Evidence, 16th Edition, 2007 at
page 228, has explained the distinction between Sections 8 and
27 of the Evidence Act by way of an illustration in the
following manner; where an accused takes the investigating
officer and the panchas to a dealer from where he had
purchased the weapon, this evidence would be inadmissible
under section 27, but this evidence when corroborated by the
dealer, the conduct of the accused in taking the police to the
dealer is admissible under Section 8 of the Evidence Act. We
have in our aforesaid narration excluded the entire disclosure
statement except the portion which we feel would be admissible
under Section 27 or conduct which would be admissible under
Section 8 of the Evidence Act. The legal position regarding
admissibility with the reference to the two Sections of the
Evidence Act has been examined by us in the decision in
Criminal Appeal No. 216/2015 and Death Reference No.
2/2013 arising out of charge sheet filed in FIR No. 609/2006
relating to murder of Anil Mandal @ Amit. We would like to
reproduce the legal position as summarised by us in the said
judgment pronounced today, which reads:-
―44. Section 27 of the Evidence Act has been a subject
matter of interpretation in several cases, albeit the
judgment of the Privy Council in Pulukuri Kotayya v. King
Empror AIR 1947 PC 67 is still regarded as locus
classicus. The decision holds that a ―fact discovered‖ is not
equivalent of the physical object recovered/produced, and
that the fact discovered embraces the place from which the
object was produced and the knowledge of the accused as
to this fact. Information given by the accused must relate
distinctly to that fact. Admissibility would obviously not
include in its ambit, a fact already known. In Mohd.
Inayatullah v. State of Maharashtra, (1976) 1 SCC 828, it
was observed:-
―11. Although the interpretation and scope of Section
27 has been the subject of several authoritative
pronouncements, its application to concrete cases is not
always free from difficulty. It will therefore be
worthwhile at the outset, to have a short and swift
glance at the section and be reminded of its
requirements. The section says:
―27. How much of information received from accused
may be proved.-
Provided that, when any fact is deposed to as discovered
in consequence of information received from a person
accused of any offence, in the custody of a police officer,
so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby
discovered may be proved.'
12. The expression ―provided that‖ together with the
phrase ―whether it amounts to a confession or not‖ show
that the section is in the nature of an exception to the
preceding provisions particularly Sections 25 and 26. It is
not necessary in this case to consider if this section
qualifies, to any extent, Section 24, also. It will be seen
that the first condition necessary for bringing this section
into operation is the discovery of a fact, albeit a relevant
fact, in consequence of the information received from a
person accused of an offence. The second is that the
discovery of such fact must be deposed to. The third is that
at the time of the receipt of the information the accused
must be in police custody. The last but the most important
condition is that only ―so much of the information‖ as
relates distinctly to the fact thereby discovered is
admissible. The rest of the information has to be excluded.
The word ―distinctly‖ means ―directly‖, ―indubitably‖,
―strictly‖, ―unmistakably‖. The word has been advisedly
used to limit and define the scope of the provable
information. The phrase ―distinctly relates to the fact
thereby discovered‖ is the linchpin of the provision. This
phrase refers to that part of the information supplied by the
accused which is the direct and immediate cause of the
discovery. The reason behind this partial lifting of the ban
against confessions and statements made to the police, is
that if a fact is actually discovered in consequence of
information given by the accused, it affords some
guarantee of truth of that part, and that part only, of the
information which was the clear, immediate and proximate
cause of the discovery. No such guarantee or assurance
attaches to the rest of the statement which may be
indirectly or remotely related to the fact discovered.
13. At one time it was held that the expression ―fact
discovered‖ in the section is restricted to a physical or
material fact which can be perceived by the senses, and
that it does not include a mental fact (see Sukhan v.
Crown; Rex v. Ganee). Now it is fairly settled that the
expression ―fact discovered‖ includes not only the physical
object produced, but also the place from which it is
produced and the knowledge of the accused as to this (see
Palukuri Kotayya v. Emperor; Udai Bhan v. State of Uttar
Pradesh).‖
45. In Vasanta Sampat Dupare v. State of Maharashtra
(2015) 1 SCC 253 the said provision stands exhaustively
examined and it was held that recovery of the dead body of
the deceased at the instance of the accused would be a fact
within the special knowledge of the accused, and therefore,
the said recovery including the recovery of the clothes in
the said case, were admissible and are relevant evidences
as per section 27 of the Evidence Act. The aforesaid
decision also refers to Section 8 of the Evidence Act and
quotes paragraph 8 from Prakash Chand v. State (Delhi
Administration), (1979) 3 SCC 90, which reads:-
―8... ...There is a clear distinction between the conduct
of a person against whom an offence is alleged, which
is admissible under Section 8 of the Evidence Act, if
such conduct is influenced by any fact in issue or
relevant fact and the statement made to a Police Officer
in the course of an investigation which is hit by Section
162 of the Criminal Procedure Code. What is excluded
by Section 162, Criminal Procedure Code is the
statement made to a Police Officer in the course of
investigation and not the evidence relating to the
conduct of an accused person (not amounting to a
statement) when confronted or questioned by a Police
Officer during the course of an investigation. For
example, the evidence of the circumstance, simpliciter,
that an accused person led a Police Officer and pointed
out the place where stolen articles or weapons which
might have been used in the commission of the offence
were found hidden, would be admissible as conduct,
under Section 8 of the Evidence Act, irrespective of
whether any statement by the accused
contemporaneously with or antecedent to such conduct
falls within the purview of Section 27 of the Evidence
Act.‖
Paragraph 9 from A.N. Venkatesh v. State of Karnataka
(2005) 7 SCC 714 was also quoted. The said paragraph
reads:-
―9. By virtue of Section 8 of the Evidence Act, the
conduct of the accused person is relevant, if such
conduct influences or is influenced by any fact in
issue or relevant fact. The evidence of the
circumstance, simpliciter, that the accused pointed out
to the police officer, the place where the dead body of
the kidnapped boy was found and on their pointing
out the body was exhumed, would be admissible as
conduct under Section 8 irrespective of the fact
whether the statement made by the accused
contemporaneously with or antecedent to such
conduct falls within the purview of Section 27 or not
as held by this Court in Prakash Chand v. State (Delhi
Admn.). Even if we hold that the disclosure statement
made by the accused appellants (Exts. P-15 and P-16)
is not admissible under Section 27 of the Evidence
Act, still it is relevant under Section 8. The evidence
of the investigating officer and PWs 1, 2, 7 and PW 4
the spot mahazar witness that the accused had taken
them to the spot and pointed out the place where the
dead body was buried, is an admissible piece of
evidence under Section 8 as the conduct of the
accused. Presence of A-1 and A-2 at a place where
ransom demand was to be fulfilled and their action of
fleeing on spotting the police party is a relevant
circumstance and are admissible under Section 8 of
the Evidence Act.‖
46. In State (NCT of Delhi) v. Navjot Sandhu (2005) 11
SCC 600, the two provisions i.e. Section 8 and Section
27 of the Evidence Act were elucidated in detail with
reference to the case law on the subject and apropos to
Section 8 of the Evidence Act, wherein it was held:-
―205. Before proceeding further, we may advert to
Section 8 of the Evidence Act. Section 8 insofar as it is
relevant for our purpose makes the conduct of an accused
person relevant, if such conduct influences or is
influenced by any fact in issue or relevant fact. It could
be either a previous or subsequent conduct.
There are two Explanations to the section, which explain
the ambit of the word ―conduct‖. They are:
―Explanation 1.--The word ‗conduct' in this section does
not include statements, unless those statements
accompany and explain acts other than statements, but
this explanation is not to affect the relevancy of
statements under any other section of this Act.
Explanation 2.-- When the conduct of any person is
relevant, any statement made to him or in his presence
and hearing, which affects such conduct, is relevant.‖
The conduct, in order to be admissible, must be such that
it has close nexus with a fact in issue or relevant fact.
Explanation 1 makes it clear that the mere statements as
distinguished from acts do not constitute ―conduct‖ unless
those statements ―accompany and explain acts other than
statements‖. Such statements accompanying the acts are
considered to be evidence of res gestae. Two illustrations
appended to Section 8 deserve special mention:
―(f) The question is, whether A robbed B.
The facts that, after B was robbed, C said in A's presence
-- ‗the police are coming to look for the man who robbed
B', and that immediately afterwards A ran away, are
relevant.
***
(i) A is accused of a crime.
The facts that, after the commission of the alleged crime,
he absconded, or was in possession of property or the
proceeds of property acquired by the crime, or attempted
to conceal things which were or might have been used in
committing it, are relevant.‖ It was further held;-
206. We have already noticed the distinction highlighted
in Prakash Chand case between the conduct of an accused
which is admissible under Section 8 and the statement
made to a police officer in the course of an investigation
which is hit by Section 162 CrPC. The evidence of the
circumstance, simpliciter, that the accused pointed out to
the police officer, the place where stolen articles or
weapons used in the commission of the offence were
hidden, would be admissible as ―conduct‖ under Section 8
irrespective of the fact whether the statement made by the
accused contemporaneously with or antecedent to such
conduct, falls within the purview of Section 27, as pointed
out in Prakash Chand case. In Om Prakash casethis Court
held that: (SCC p. 262, para 14)
―Even apart from the admissibility of the information
under Section 27, the evidence of the investigating
officer and the panchas that the accused had taken
them to PW 11 (from whom he purchased the weapon)
and pointed him out and as corroborated by PW 11
himself would be admissible under Section 8 of the
Evidence Act as conduct of the accused.‖
―13. Reference to judgement in Criminal Appeal No.
1831/2011 Ranjeet Kumar Ram @ Ranjeet Kumar Das v.
State of Bihar decided on 15th May, 2015, would be
appropriate. On recovery of a dead body of an unknown
boy a FIR was registered at the police station Fakuli. On
a missing complaint, a FIR was registered at the police
station Vaishali. The accused when arrested in the FIR
registered at the police station Vaishali, made a
disclosure statement. The leads and clues, led to the
police team from the police station Vaishali to the police
station Fakuli and thereupon the identity of the dead body
found prior to the arrest of the accused was ascertained.
Referring to the said facts, the Supreme Court opined:
―19. So far as the recovery of dead body of boy under the
culvert between Bhagwanpur and Bahadarpur road is
concerned, as noticed earlier, a F.I.R. was registered in
(Fakuli OP) P.S. Case No. 128/2006 dated 22.4.2006
under Sections 302, 201 IPC read with Section 34 IPC.
Though the statement recorded from the accused Chintu
Singh (A-5) and Birendra Bhagat (A-3) did not lead to
any recovery as admissible under Section 27 of the
Evidence Act, their statement led to the disclosure of the
details of the dead body and registration of F.I.R. in
(Fakuli OP) P.S. Case No. 128/2006. If no statement was
recorded from the accused, place of the dead body of
deceased boy would have remained unknown.‖
Equally pertinent are the observations of the Supreme
Court in Mehboob Ali v. State of Rajasthan [Criminal
Appeal No. 808/2010] decided on 27th October, 2015.
The contention raised by the accused Mehboob or Firoz
was that no portion of the disclosure statement was
admissible for currency notes were not recovered from
them or their possession. In this case one Puranmal was
arrested and from his possession fake currency notes
were recovered. He had implicated and stated that these
currency notes were handed over to him by the accused
Mehboob and Firoz, who in turn implicated the third
accused Anju Ali. Fake currency notes were recovered
from Anju Ali. The said Anju Ali identified yet another
co-accused Majhar from whose possession also fake
currency notes were recovered. Information supplied by
Majhar ultimately led to the arrest of Liyakat Ali from
whom again fake currency notes and semi printed
currency notes were recovered along with some
equipment/instrument. On the question whether the
disclosure statement of Majhar and Firoz resulting in
arrest of Anju Ali could be relied, it was observed as
under:
―15. It is apparent that on the basis of the information
furnished by accused Mehboob Ali and Firoz other
accused, Anju Ali was arrested. The fact that Anju Ali
was dealing with forged currency notes was not to the
knowledge of the Police. The statement of both accused
has led to discovery of fact and arrest of co-accused not
known to police. They identified him and ultimately
statements have led to unearthing the racket of use of
fake currency notes. Thus the information furnished by
the aforesaid accused persons vide information memos
is clearly admissible which has led to the identification
and arrest of accused Anju Ali and as already stated
from possession of Anju Ali fake currency notes had
been recovered. As per information furnished by
accused Mehboob and Firoz vide memos P41 and P42,
the fact has been discovered by Police as to the
involvement of accused Anju Ali which was not to the
knowledge of the Police. Police was not aware of
accused Anju Ali as well as the fact that he was dealing
with fake currency notes which were recovered from
him. Thus the statement of the aforesaid accused
Mehboob and Firoz is clearly saved by section 27 of the
Evidence Act. The embargo put by section 27 of the
Evidence Act was clearly lifted in the instant case. The
statement of the accused persons has led to the
discovery of fact proving complicity of other accused
persons and the entire chain of circumstances clearly
makes out that accused acted in conspiracy as found by
the trial court as well as the High Court.
XXXXX
20. Considering the aforesaid dictums, it is apparent
that there was discovery of a fact as per the statement of
Mehmood Ali and Mohd. Firoz. Co-accused was
nabbed on the basis of identification made by the
accused Mehboob and Firoz. He was dealing with fake
currency notes came to the knowledge of police through
them. Recovery of forged currency notes was also made
from Anju Ali. Thus the aforesaid accused had the
knowledge about co-accused Anju Ali who was nabbed
at their instance and on the basis of their identification.
These facts were not to the knowledge of the Police
hence the statements of the accused persons leading to
discovery of fact are clearly admissible as per the
provisions contained in section 27 of the Evidence Act
which carves out an exception to the general provisions
about inadmissibility of confession made under police
custody contained in sections 25 and 26 of the Evidence
Act.‖ We would prefer to rely on the said lucid ratio as
equally and affirmatively applicable to Section 8 of the
Evidence Act.‖
73. On the question of recovery of pistol from Sanjay @ Khatta
/PW-46, I would refer to the testimonies of Head Constable Moti Ram
/PW-33, Head Constable Sukh Ram / PW-36 and SI Ajay Karan
Sharma /PW-37, Head Constable Subhash Chand /PW-40, Head
Constable Rajender Singh /PW-41 and Metropolitan Magistrate Mr.
Vishal Singh/ PW-45. FIR No.150/2009 Police Station Mangolpuri
was registered on 14thMay, 2009 against Sanjay /PW-46. The said
FIR was under Section 25 of the Arms Act as a pistol and some rounds
were seized and deposited in Malkhana. On these facts / assertion
there is hardly any in the cross-examination, which would dent the
prosecution version and testimonies. Statement of SI Ajay Karan
Sharma /PW-37, who along with others had arrested Sanjay /PW46,
remains virtually unchallenged. Ajay Karan Sharma / PW-37 had also
drawn sketch of the recovered pistol and cartridges which was marked
as PW-37/A and the articles seized were sealed with the seal of A.K.S.
and taken into possession vide seizure memo PW-37/B. Ajay Karan
Sharma / PW-37 was not cross examined by counsel for the Sonveer
and other appellants. The said parcel as per the testimony of Head
Constable Moti Ram/PW-33 was sent to the FSL Rohini on 26th June,
2009 and result / opinion was received on 10th September, 2009 along
with the sealed parcel. Subsequently on 14 thSeptember, 2009 this
parcel with the seal of FSL was transferred to police station
Chanakyapuri.
74. Mr. Vishal Singh, Metropolitan Magistrate /PW-45 has stated
that on 14th September, 2002 (sic. 2009), Mohrar Malkhana, Police
Station Mangolpuri had appeared along with the sealed property under
Section 25 of the Arms Act relating to FIR No.150/2009. Inspector
Arun Kumar / PW-48A/PW-49 had appeared and testified that the said
case property was involved in the present case and was required to be
examined in ballistic laboratory of FSL at Rohini. The sealed parcel,
which had the seal of FSL Rohini from earlier examination, was
opened and found to contain one pistol, three live cartridges and one
empty cartridge. The pistol was handed over to Inspector Arun Kumar
/ PW-48A and the sealed pullanda containing cartridges were returned
back to Moharrar Malkhana, Police Station Mangolpuri. PW-45 was
not cross-examined. I have also read the evidence of Inspector Arun
Kumar / PW-48A/PW-49, who has affirmed the said position. The
said witness was not cross-examined, on the question of pistol which
was identified by him and had been marked as Ex.PW-37A. The said
pistol had been produced in a sealed parcel with the seal of FSL report
No.2009 F4309.
75. Head Constable Rajender Singh /PW-41 had stated that
Inspector Arun Kumar / PW-48A on 14th September, 2009 had
deposited one parcel with the seal of BS stated to be containing the
pistol and entry to that effect was made in the register. On 29 thMay,
2009 the said parcel was sent to FSL, Rohini through Head Constable
Satish Kumar. Subsequently on 15thOctober, 2009, one parcel and five
live cartridges were sent to FSL Rohini through ASI Narender Singh,
Special Staff. On 24thDecember, 2010, results from the FSL
laboratory were received.
76. As noticed above, FSL report was taken on record in the High
Court by permitting the prosecution to lead additional evidence. The
FSL Report,Ex HC -A, affirms that the weapon was an improvised
pistol of 7.65 mm bore and was in working order. The opinion
Ex.HC-B states that the pistol was used to fire two empty or fired
cartridges recovered from the site/scene of crime. The reports
Ex.HCA and Ex.HCB thus affirm that the fire arm seized from Sanjay
/PW-46 was used in the occurrence. The details of the said fire arm
and the fact that the fire arm was with Sanjay/ PW-46 came to the
knowledge of the police only after Sonveer was arrested. Though the
pistol was recovered by S.I. Ajay Karan Sharma /PW-37 of Police
Station Mangolpuri on 13th May, 2009 there is not even an iota of
evidence to suggest that PW-37 or PW-48A, had suspected that the
said weapon was used for murder in the present case. The said factum
came to the knowledge of the police on interrogation of the appellant,
Sonveer. As the weapon had already been recovered by the police
before the disclosure statement Ex.PW-17/A was recorded, therefore,
Section 27 of the Evidence would not be attracted to make that part of
the said disclosure statement as admissible, albeit section 8 of the
Evidence Act would be attracted to the limited extent that the arrest
and interrogation of Sonveer had led to information with regard to
seizure of pistol used in the said offence from Sanjay/PW-46, a fact
affirmed by the FSL report and the statements of SI Ajay Karan
Sharma /PW-37 and other witnesses. As noticed above, SI Ajay
Karan Sharma /PW-37 was never questioned on these aspects relating
to recovery of the pistol or that Sanjay /PW-46 had indicated or even
hinted that the pistol was recovered from him was involved in the
present occurrence. No such suggestion was given on behalf of
Sonveer to Inspector Arun Kumar / PW-48A.
77. On the basis of the aforesaid evidence I have come to the
conclusion that the pistol recovered from Sanjay /PW-46 was used for
the offence in question. Further police had come to know about the
use of the said pistol and its recovery from Sanjay /PW-46 in FIR
No.150/2009 police Station Mangolpuri on interrogation and
revelations made by Sonveer. This corroborates the eye witnesses'
versions identifying Sonveer as one of the persons, who had fired from
the Indica Car. Presence of Sonveer at the spot has also been
confirmed by Hemant /PW-10 and Gajender Singh /PW-11 who were
present at Chintu Car Point on 22ndFebruary, 2009.
78. The contention raised on behalf of Sonveer regarding
discrepancies etc. and that the cartridges recovered with the firearm
and produced before the Court were deposited in the Malkhan, Police
Station-Mangol Puri and, therefore, the FSL reports Ex.HC-A and
Ex.HC-B should be disregarded has been rightly rejected by R.K.
Gauba, J. The FSL reports were taken on record during the pendency
of the appeal in the High Court and thereafter, additional statements of
the appellants under Section 313 of the Code were recorded. Gita
Mittal J. in paragraph 644 of her judgment has accepted that the
ballistic evidence in the present case supports the prosecution case on
firing at the black Santro car in which Ankit had received gunshot
injury. She has observed that the evidence points towards possibility
of the weapon recovered in FIR No.150/2009 as having been used in
the crime.
79. Thus, two of the spent cartridges found at the scene of crime
have been positively connected with weapon i.e. fire arm used and
was seized from Sanjay / PW-46. Pertinently, Sonveer had refused to
participate in the TIP proceedings as recorded in Ex.PW-49/F dated 4th
September, 2009. Sonveer had taken a plea that he had been shown to
the witnesses at the police station without specifying the time or the
date he was shown to the witnesses.
80. Vishnu was involved in a criminal case being FIR No.47/2007
under Sections 324, 506 and 34 IPC, Police Station-Prashad Nagar, in
which proceedings he was absconding. Vishnu surrendered in the said
case and was taken into custody on 26th September, 2009 and
subsequently information was passed on to Inspector Arun
Kumar/PW-48A, who then moved application Ex.PW-49/K before the
Metropolitan Magistrate. Vishnu was produced before the
Metropolitan Magistrate on 29th September, 2009 and was formally
arrested in the said case. On the same date, application Ex.PW-49/N
was moved for conducting his TIP. The application records Vishnu
being produced in a muffled face. The application was allowed vide
order dated 29th September, 2009, which order mentioned that Vishnu
was in muffled face. TIP was fixed on 5th October, 2009 on which
date Vishnu refused to participate as per proceeding Ex.PW-49/P.
Subsequently, on 8th October, 2009, Vishnu was sent to police
custody. Vishnu however relies statement of his wife Pooja/DW-3,
who had deposed that a police officer from PS Chankya Puri including
Inspector Arun Kumar/PW-48A had come and searched their house on
17th September, 2009 at 2:00 p.m. They had made inquiries about
Vishnu and asked for his photographs. They had taken a photo album
which contained photographs of her husband. She had sent a telegram
in this regard to Commissioner of Police and other authorities marked
Ex.DW3/A. Inspector Arun Kumar/PW-48A accepts receipt of this
telegram but had denied the assertions and contents. Regarding the
contention of Appellant-Vishnu, that he had refused to take part in the
TIP proceedings as he had already been shown to the witnesses,
Sunil/PW-1 has stated in his cross examination that when the accused
Vishnu was arrested, he had gone to the Police Station where he was
being interrogated and had identified him. The date is not indicated. It
would necessarily be when Vishnu was in police custody. No
suggestion predicated on photographs was given and confronted to
PW-1. Varun/PW-6 has stated in his cross examination that he had
been summoned to the court on three dates, of which he attended two,
but categorically denied the suggestion that on those days he had been
made to know and identify the accused persons. Surender/PW-8 stated
that he had not joined any investigation of the police but had gone
back to his native village for 4-5 months after the incident. He also
stated that he had attended court hearings multiple times, but no
suggestion or question regarding Vishnu's photo being shown to him
was put to him during his cross examination. Similarly, Paramjeet
Singh/PW-5 has also not been questioned on whether the police
showed him any photographs of the accused Vishnu before conducting
TIP proceedings. We cannot place much reliance on the aforesaid
testimony including the telegram, Ex.DW-3/A dated 17th September,
2009. Vishnu's name was mentioned in the charge-sheet filed on 23rd
May, 2009. The prosecution assertion that this telegram was issued in
view of the legal advice to create evidence, does carry weight.
81. Thus, on the question of identification of accused-Vishnu, we
have the statements of Sunil/PW-1, Paramjeet Singh/PW-5,
Varun/PW-6 and Surender/PW-8, who were present outside Chintu
Car Point and in the Santro car when the firing took place. Similarly,
Hemant/PW-10 and Gajender/PW-11 have identified Vishnu as one of
the persons present outside Chintu Car Point.
82. Non-recovery of weapon in the context of the present case
cannot be a good ground to acquit Vishnu. In Lakhan Sahu Vs. State
of Bihar 2000 (9) SCC 82, State of Rajasthan Vs. Arjun 2013 (12)
SCC 812 the Supreme Court has impressed that mere non-recovery of
a pistol or cartridge does not in any case detract the case of the
prosecution where there is clinching and direct evidence.
83. Counsel for Vishnu, Sonveer and Hemant Garg had laid
considerable emphasis on the fact that the firing had taken place from
a moving car being driven at a fast speed and that the Santro car had
tainted glass and hence, the witnesses present in the Santro car could
not have identified the perpetrator who had fired or Hemant Garg, who
was statedly driving the Indica car. This was a case of targeted attack
deliberately intended to harm those, who were present outside Chintu
Car Point and had driven away in the Santro car. It is not a case
wherein firing had taken place on account of sudden quarrel or fight at
the place of firing. The eye witnesses, immediately before, had the
occasion to see and notice Vishnu, Sonveer, and Hemant Garg at
Chintu Car Point, and thereafter there was a brawl lasting for some
minutes. Firing incident was shortly thereafter. The way and manner
in which the Indica car was driven and had followed the Santro car
would be a compelling factor indicating and showing that there was a
past grievance and cause, which would be the motive to commit the
crime. The persons present in the Santro car were targeted. The
Santro car with the occupants known to the perpetrators was pursued
and then attacked. Pretext of black tinted glasses and rolled/closed
windows of the Santro Car or head rest inside Indica Car would not in
my mind be a factor in favour of the defence. These are assumptions.
The question whether or not the identification of the perpetrators by
the eye witnesses whose presence at the place of crime is accepted, is
substantially a question of fact. There are cases in which such
versions have been accepted and also cases when identification has
been disbelieved. I would, therefore, not refer to several decisions
cited by the defence or even the prosecution for there cannot be said to
be a straitjacket binding ratio, for a decision on fact or facts specific
does not lay down a dictum. For example in Pargan Singh Vs. State
of Punjab & Anr. (2014) 14 SCC 619 the Supreme Court came to the
conclusion that in the given facts and in view of the nature of the
incident, 90 seconds was a long enough period to enable the one eye
witness to watch the accused and identify him, even after seven and a
half years. This was a case of the death of a friend and the court held
that the said horrific experience would have remained etched in the
memory. It would, therefore, not be possible to ignore and brush off
the statements made by the said witnesses identifying Hemant Garg,
Sonveer and Vishnu, on the argument of fleeting glimpse. On the
other hand, their identification carries weight and deserves affirmation
as correct. In the case of Sonveer, the forensic report affirms his
involvement as the pistol recovered from Sanjay/PW-46 pursuant to
interrogation of Sonveer was found to be involved in the firing which
had caused death of Ankit. The FSL reports HC-A to HC-C would
therefore corroborate involvement of Sonveer and indirectly of
Vishnu, as the second weapon of offence could not be recovered,
though the fact that two fire arms were used, as stated by the eye
witnesses Sunil -PW-1, Paramjeet Singh /PW-5, Varun/ PW-6 and
Surender / PW-8, is corroborated and confirmed from the fact that the
third fired cartridge, as per the ballistic FSL report Ex. HC-B, was not
fired from the fire arm examined. The third empty cartridge was fired
from another fire arm.
84. Identification of Hemant Garg as the driver of the Indica car
gets affirmed and confirmed by the fact that the said car was owned by
him and he has unable to show and establish his alibi that the car was
not in his possession on the date of the occurrence. The dock
identification of Hemant Garg made by Sunil/PW-1, Surender/PW-8
and Varun/PW-6 affirms his presence, even if for the sake of
argument, we ignore the dock identification by Paramjeet Singh/PW-
5, who had failed to identify Hemant Garg in the TIP.
85. No doubt the prosecution has not examined the water vendor,
but this would not make any difference and water down the evidence
of the eye witnesses and other corroborative material on record.
Sushil Arora and Rajesh Pandey
86. This brings me to the evidence and the case against the
appellants Sushil Arora and Rajesh Pandey. I would first note the facts
or factums against both of them. Facts against them are;-
(i) Sushil Arora and Rajesh Pandey were named by Sunil
/PW-1 in his first statement Ex.PW-1/A, which got recorded as
the FIR marked Ex. PW-25/A. Their names therefore, came on
the police record at the initial or at the very first stage. This
would negate false implication.
(ii) Immediately before firing at T-point, Simon Bolivar
Marg, Mahindra Singh/PW-9 with Hemant/PW-10 and
Gajender/PW-11 had visited the office of Sushil Arora at
Chintu Car Point. Rajesh Pandey was present in the office.
The discussions were on the question of re-payment of the loan
of Rs.10.0 lacs given by PW-9. Rajesh Pandey had
participated in the said discussion which was acrimonious
though there was a settlement. This as per the prosecution
version was the motive for the firing which led to death of
Ankit Manocha and injuries on Surender /PW-8.
(iii) The firing by the occupants of the Indica Car was a
deliberate, intentional, and coagulated act reflective of past
rancour. It was an act to seek revenge and was vengeful. This
as per the prosecution connects the crime with the motive and
links the two appellants.
(iv) There is evidence to show that Rajesh Pandey was
coming in and out of Chintu Car Point and talking to the boys
i.e Hemant Garg, Vishnu, and Sonveer, outside. This indicates
that the boys outside had been called and were acting at the
behest of Sushil Arora and Rajesh Pandey.
(v) PW-1 / Sunil and Paramjit /PW-5 have identified Sushil
Arora and Rajesh Pandey as two of the occupants, who were
sitting on the rear seat of the Indica car. They were present in
the car, though they had not fired.
(vi) Varun /PW-6 did not initially recognize and identify
Rajesh Pandey as one of the occupants of the Indica car, but on
the cross-examination by the public prosecutor had identified
Rajesh Pandey.
(vii) Rajesh Pandey had refused to join TIP.
87. On the other hand Sushil Arora and Rajesh Pandey have
highlighted the following facts which they say would reflect and
negate their involvement:-
(i) The prosecution accepts that there was another
occurrence outside Chintu Car Point involving 3/4 persons, as a
motorcycle had obstructed the Santro Car. The deceased along
with witness Varun/PW-6, as per Sunil/PW-1, Paramjeet /PW-
5, Varun /PW-6 and Surender /PW-8 had grappled with these
boys. Mahindra Singh/PW-9, Hemant/PW-10, and
Gajender/PW-11 also affirm the said brawl. This fight was
serious as Pushkar Raj /DW-6 had made a phone call to the
police. The said factum was affirmed and accepted by the first
investigating officer, Inspector S.S. Rana /PW-26 and vide PCR
records.
(ii) As per the prosecution witnesses Mahindra Singh /PW-9,
Hemant/PW-10 and Gajender/PW-11 the dispute with regard to
the re-payment of loan of Rs.10.0 lacs was amicably resolved.
The controversy had settled with the appellant Sushil Arora
agreeing to make repayment of loan in instalments, which was
accepted after some resistance. No violence took place at
Chintu Car Point nor was any injury caused or suffered by
Mahindra Singh /PW-9. Mahindra Singh /PW-9 had left Chintu
Car Point in Esteem Car along with Hemant/PW-10 and
Gajender/PW-11. The Indica Car with the perpetrators had not
followed Mahindra Singh /PW-9 but had followed Santro Car
which was being driven by Paramjeet Singh /PW-5. This
indicates that the perpetrators were aggrieved and the motive
was the second occurrence outside Chintu Car Point where there
was a fight on account of motor cycle obstructing the Santro
Car.
(iii) Sushil Arora was arrested on 24thFebruary, 2009. Sushil
Arora did not disclose or divulge the names and details of other
three appellants, namely Hemant Garg, Vishnu and Sonveer.
Name of Hemant Garg came to the knowledge of the police
after they had checked the registration records of the Car in
question. Name and details of Vishnu and Sonveer were
ascertained much later and cannot be attributed to Sushil Arora.
(iv) If Sushil Arora was sitting in the Indica Car, he would
have certainly given the details and names of Vishnu and
Sonveer, after all they have travelled in the same car and had
occasion to interact.
(v) Police investigation has not revealed and it is not asserted
that Sushil Arora and Rajesh Pandey were interacting and had
prior acquaintance with Hemant Garg, Vishnu and Sonveer i.e.
prior to the date of occurrence. Call record details of Rajesh
Pandey, Sushil Arora and appellants Hemant Garg, Vishnu and
Sonveer have not been placed on record and relied.
Investigation is deliberately quite on the said aspect for there is
no evidence to link and connect Sushil Arora and Rajesh
Pandey, with Hemant Garg, Sonveer, and Vishnu.
(vi) The assertion of the witnesses, namely, Sunil /PW-1,
Paramjeet PW-5, Varun /PW-6, Surender /PW-8, Hemant Garg
/PW-10 and Gajender Singh /PW-11 that Rajesh Pandey was
coming in and out at Chintu Car Point and speaking to the boys
outside is concocted and a false assertion. There was no reason
and cause for Rajesh Pandey to indulge and interact with the
unknown boys. Version given by Sunil/PW-1 in rukka Ex. PW-
1/A was different.
(vii) It would be specious and imprudent to accept testimonies
of Sunil/PW-1 and Paramjeet Singh/PW-5 (also Varun/PW-6 in
the case of Rajesh Pandey) that Sushil Arora and Rajesh Pandey
were present in the Indica Car with the perpetrators when firing
took place at Ridge Road, near Simon Boliver T-Point. These
witnesses have falsely and wrongly implicated them, even when
Sushil Arora and Rajesh Pandey were not present in the Indica
Car for they verily believed and had suspected their
involvement. The witnesses have gone by intuition and instinct
in naming Sushil Arora and Rajesh Pandey given the fact that
the firing took place immediately after they had left Chintu Car
Point. These eye-witnesses have not spoken the truth and had
named Sushil Arora and Rajesh Pandey because they perceived
and honestly believed their involvement and thus have falsely
deposed on their presence in the Indica car. The identification of
Sushil Arora and Rajesh Pandey is tainted and should not be
accepted.
(viii) Pushkar Raj /DW-6, brother of Sushil Arora had made a
call to the Police after brawl outside Chintu Car Point. If and in
case Sushil Arora and Rajesh Pandey wanted to kill Mahindra
Singh /PW-9 or his team, Pushkar Raj /DW-6 would not have
made the said call and made complaint to the police.
88. I have given my due consideration to the rival contentions and
the relevant material both in favour and against the Sushil Arora and
Rajesh Pandey. Certainly, if the identification by Sunil /PW-1 and
Paramjeet /PW-5, is to be accepted then both Sushil Arora and Rajesh
Pandey were present in the Indica Car. Varun/PW-6 did not initially
identify Rajesh Pandey but subsequently on being declared hostile had
accepted that Rajesh Pandey was present in the Indica Car. However,
he did not identify Sushil Arora. Surender /PW-8 did not identify both
Rajesh Pandey and Sushil Arora. However, PW-8 did perceive that
some other persons were present in the Indica Car.
89. It is possible to urge with persuasion that the identification by
Sunil /PW-1 and Paramjeet /PW-5 would be accepted for other
witnesses may not have possibly identified and seen the other persons
present in the Indica Car. Surender PW-8 may not have had the
occasion to have a good look to identify others. The same argument
would be applicable as far as non-identification of Sushil Arora by
Varun/ PW-6.
90. Decision in the case of Pargan Singh (Supra) refers to the
decision of the United States Court of Appeal in Javier Suarez
Medina Vs. Janie Cockrell, which discussed the scientific evidence as
to how memory works, and observed as under:
"18.2. Memory researchers study how memory works
using a variety of techniques. A common technique is to
try to identify circumstances under which memory is
inaccurate versus circumstances under which memory is
accurate. These efforts have revealed four major sets of
circumstances under which memory tends to be inaccurate.
The first two sets of circumstances involve what is
happening at the time the to-be-remembered event is
originally experienced, while the second two sets of
circumstances involve things that happen after the event
has ended.
18.3. The first set of circumstances involves the state of
the environment at the time the event is experienced.
Examples of poor environmental conditions include poor
lighting, obscured or interrupted vision, and long viewing
distance. To the degree that environmental conditions are
poor, there is relatively poor information on which to base
an initial perception and the memory that it engenders to
begin with. This will ultimately result in a memory that is
at best incomplete and, as will be described in more detail
below, is at worst systematically distorted.
18.4. The second set of circumstances involves the state of
the observer at the time the event is experienced. Examples
of sub-optimal observer states include high stress,
perceived or directly inflicted violence, viewing members
of different races, and diverted attention. As with poor
environmental factors, this will ultimately result in a
memory that is at best incomplete and, as will be described
in more detail below, is at worst systematically distorted.
18.5. The third set of circumstances involves what occurs
during the retention interval that intervenes between the to-
be-remembered event and the time the person tries to
remember aspects of the event. Examples of memory-
distorting problems include a lengthy retention interval,
which leads to forgetting, and inaccurate information
learned by the person during the retention interval that can
get incorporated into the person's memory for the original
event.
18.6. The fourth set of circumstances involves errors
introduced at the time of retrieval i.e. at the time the person
is trying to remember what he or she experienced. Such
problems include biased tests and leading questions. They
can lead to a biased report of the person's memory and can
also potentially change and bias the memory itself.‖
(See: 'The fallibilty of memory in judicial processes: Lessons
from the past and their modern consequences' by Mark L. Howe and
Lauren M. Knott, Memory 2015 Vol 23, No. 5 633-656 and
'Interviewing Witnesses: The Effect of Forced Confabulation on
Event Memory', by Kathy Pezdek, Kathryn Sperry, and Shana M.
Owens, Law Hum Behav (2007) 31: 463-478.)
91. Issue of identification of Sushil Arora and Rajesh Pandey in the
present case is even more complex for the assertion is that the
witnesses Sunil /PW-1, Paramjeet Singh/ PW-5 and Varun /PW-6
have not deposed on the basis of their memory, but the two have been
implicated then even when they were not present in the Indica Car
because the witnesses perceived and verily believed that they were
behind the perpetrators and were responsible for the firing. It is this
belief which has impelled and motivated the said witnesses to
implicate Sushil Arora and Rajesh Pandey. I have to be cautious and
examine whether there was confabulation. In Shankarlal Gyarasilal
Dixit v. State of Maharashtra, AIR 1981 SC 765, while dealing with
the question of accusation by eye witnesses, the Supreme Court had
observed:-
"Our judgment will raise a legitimate query: If the
appellant was not present in his house at the material time,
why then did so many people conspire to involve him
falsely? The answer to such questions is not always easy to
give in criminal cases. Different motives operate on the
minds of different per-sons in the making of unfounded
accusations. Besides, human nature is too willing, when
faced with brutal crimes, to spin stories out of strong
suspicions. In the instant case, the dead body of a tender
girl, raped and throttled, was found in the appellant's house
and, instinctively, everyone drew the inference that the
appellant must have committed the crime. No one would
pause to consider why the appellant would throw the dead
body in his own house, why would he continue to sleep a few
feet away from it and whether his house was not easily
accessible to all and sundry, as shown by the resourceful
Shrinarayan Sharma. No one would even care to consider
why the appellant's name was not mentioned to the police
until quite late. These are questions for the Court to
consider."
(emphasis supplied)
Aforesaid observations have to be read with caution and care
and not applied indiscriminately on mere suppositions. Attending and
asymmetrical facts emerging on record are required to be examined
when they conflict with implicative testimony of the eye-witness to
rule out any attempt to connect and link an accused with the crime on
the basis of strong suspicion. Ocular testimony normally merits
confirmation, unless there are good grounds and reasons to discard
and reject orate, as ordained on mere perception and too pernicious for
the court to rely and accept.
92. It is correct that when there is direct imperative and impelling
evidence, question of motive can pale into insignificance as has been
held in Bipin Kumar Mondal Vs. State of West Bengal (2010) 12
SCC 91, albeit in the present case, prosecution relies upon motive as
an incriminating circumstance and material. Importantly, as per the
prosecution version firing which had caused death of Ankit was in
retaliation and an act of revenge. In these circumstances, motive does
acquire significance and importance when we examine the question as
to who were the perpetrators. In the aforesaid background, it would
not be correct to ignore the occurrence outside Chintu Car Point which
had resulted in a brawl, and hold that the said factum, though
approved, would establish only motive and thus should be treated as
inconsequential by squarely relying on eye witnesses. In the cases of
direct evidence, which is credible and acceptable, failure of the
prosecution to establish motive is not material, but in the facts of the
present case, when veracity and credibility of the direct evidence itself
is in question, motive when elucidated and relied, has to be factored
and given adequate consideration.
93. There is evidence of witnesses including Mahindra Singh /PW-
9 and Gajender Singh /PW-11 that Rajesh Pandey was going in and
out to meet the persons outside. Complaint Ex.PW1/A by Sunil states
that boys were moving in and out of the office and not that Rajesh
Pandey was repeatedly moving out to talk to them. However, even if
this is accepted as correct that these witnesses have not testified on the
direct involvement of Sushil Arora or Rajesh Pandey when there was
a brawl and a fight outside Chintu Car Point when the Santro Car
could not be moved.
94. Varun/PW-6 in his statement under Section 161 marked Ex.
PW-6/6A had stated that there was a fight outside Chintu Car Point
and the same boys were present in the Indica car when the firing took
place at the Ridge Road near Simon Bolivar T-Point. This statement
specifically refers to both Sushil Arora and Rajesh Pandey by name
but does not state that both of them were present in the Indica car.
However, Varun/PW-6 did blame both Sushil Arora and Rajesh
Pandey for the firing.
95. Inspector S.S. Rana/PW-26 in his application dated 24th
February, 2009, seeking 7 days' remand of appellant-Sushil Arora had
stated that on 22nd February, 2009, there was exchange of words
followed by scuffle with brick bats between the two groups and the
party headed by Mahendra Singh/PW-9 had overpowered the other
party and had beaten them black and blue. Thereafter, Mahendra
Singh/PW-9 had left in his car. Rajesh Pandey, Sushil Arora and three
others had followed the first party with a loaded pistol and had
overtaken the Santro car. This application specifically mentions that
three unknown persons involved in the said occurrence were yet to be
arrested and pistol was also to be recovered. The prosecution version
as per the charge sheet was strikingly different. Ocular evidence led
and relied upon by the prosecution does not refer to any altercation
and fight with direct involvement of Mahendra Singh/PW-9, or Sushil
Arora and Rajesh Pandey.
96. On behalf of Sushil Arora it was submitted that he was using
mobile No.9811071400 and the police has deliberately withheld the
call record details including location which would indicate that he was
not present in the Indica Car. Reliance is placed upon testimony of
Pushkar Raj /DW-6, who had deposed to the effect that the appellant
Sushil Arora was carrying mobile No.9811071400, which used to
always remain with him. He had testified that Sushil Arora had left
Chintu Car Point at 2:30 p.m. in the Santro Car DL 8CN 5173 for
miscellaneous work and had visited the car dealers in and around
Karol Bagh area and then to his father's house at Rohini. The fact that
Sushil Arora had remained at the shop till 2:30 p.m. on 22 nd February,
2009 was verified and confirmed to the police by the neighbourhood
shopkeepers. However, these shopkeepers were not enlisted as
witnesses and did not depose. Pertinently, neither did the defence seek
their presence and appearance as witness in support of their alibi.
DW-6 had remained at the shop and at about 7:45 p.m. he had spoken
police officers who had visited Chintu Car Point in a Gypsy car and
made enquiries from him regarding the earlier brawl and Sushil Arora.
They had left after noting the name, address and phone number of
Sushil Arora. On 23rd February, 2009 at about 1:30 p.m. he had
received a call from police station Chanakya Puri, who had enquired
about Sushil Arora. He was asked him to come to the police station
with Sushil Arora. He and Sushil Arora thereafter had visited the
police station Chanakya Puri where enquiries were made from them
and were let off and told that they would be called again. On 24 th
February, 2009, he had received another call from Police Station
Chanakya Puri. He and Sushil Arora, as per the directions, visited the
said police station where Sushil Arora was arrested.
97. Sushil Arora had also summoned Israr Babu, Alternate Nodal
officer Vodafone, who had deposed as DW-5 and had proved call
record details of mobile No.9811071400 for the month of February,
2009. The tower location charts were marked as Ex.DW-5/A and
DW-5/C respectively. He testified that mobile No.9811071400 was
issued in the name of Sushil Arora and proved the screen shot of the
details as Ex.DW-5/D. The location chart indications from 1:30 to
2:30 p.m. on 22nd February, 2009 was marked X-1 to X-16; and the
certificate given under Section 65B of the Evidence Act bearing
signatures of DW-5 was marked as Ex.DW-5/B.
98. Pushkar Raj /DW-6, however, in his cross-examination had
stated that there were five mobile phones in his family as on 22 nd
February, 2009 and he did not remember these mobile phone numbers,
except 9213904572. He was cross-examined but denied the
suggestion that Sushil Arora was not carrying with him mobile
No.9811071400 on 22nd February, 2009.
99. The prosecution does not rely upon the call record details and
location chart as evidence which would implicate Sushil Arora. The
call record details of mobile No.9811071400 and the location chart
would to some extent support the case of Sushil Arora, but I cannot
with certainty hold that it is proved and established beyond doubt and
debate that mobile No.9811071400 was with Sushil Arora at the time
of occurrence, in spite of the testimony of Pushkar Raj /DW-6. The
said witness has accepted that there were as many as five mobile
phones in his family, details of which (except one number) were not
forthcoming. The call record details of all these numbers and location
chart was not available. I would, in these circumstances, not hold that
the call record details and location chart of mobile No.9811071400
would absolve and contra-indicate presence of Sushil Arora in the
Indica Car at the time of firing. The alibi, which is solely based upon
testimony of Pushkar Raj /DW-6 and Israr Babu/ DW-5 is not fully
and affirmatively established beyond doubt.
100. In Tomaso Bruno Vs. State of U.P. (2015) 7 SCC 178, it has
been observed that the best evidence that could have thrown a better
light on the facts and circumstances and which was available, but was
not collected and consequently withheld by the prosecution, was a
factor which could be taken into account by the court by applying
presumption under Section 114 (g) of the Evidence Act. This
position/ratio would apply when the evidence produced is shaky and
debatable. Evidence adduced both oral and documentary must be first
examined to ascertain its veracity and whether it proves the case
beyond reasonable doubt. Multiplicity and duplication of evidence is
not required. However, assertion of the prosecution in the present
case in the context of Sushil Arora and Rajesh Pandey is debatable and
therefore failure or witholding a relevant consideration. In this
context failure to adduce relevant evidence and lapses in investigation
assume relevance and importance.
101. I would accept that the prosecution/investigation was not able to
ascertain from Sushil Arora upon arrest on 24th February, 2009,
names of both Sonveer and Vishnu as occupants in the Indica car.
Police had been able to ascertain the name of Hemant Garg by 23rd
February, 2009 being the registered owner of the Indica car. This is
apparent from the case dairy wherein name of Vishnu finds mentioned
for the first time on 25th February, 2009 and the name of Sonveer was
recorded for the first time in May, 2009. This apart, Inspector Jagat
Singh/PW-47, who was the SHO and was involved in investigation
with Inspector S.S. Rana/PW-26, has accepted that he had interrogated
Sushil Arora along with PW-26. Sushil Arora, as per PW-47 had
specifically named Rajesh Pandey i.e. only Rajesh Pandey and no
other accused including Hemant Garg. PW-46 subsequently accepted
that he had come to know the other three accused i.e. Hemant Garg,
Vishnu and Sonveer by 27th February, 2009, but was unable to
remember on what basis i.e. document and fact. This assertion finds
corroboration from the remand application dated 24th February, 2009
moved for police remand of Sushil Arora, which records that "another
four assailants, namely, Rajesh Pandey and three unknown are to be
arrested". Similarly, on 20th March, 2009, investigation had sought
issuance of non-bailable warrants only against Rajesh Pandey and
Hemant Garg and no one else. Written reply by the investigation
opposing application for anticipatory bail by Hemant Garg filed in
April, 2009, did not name Vishnu and Sonveer. It is in this factual
context that it is submitted with merit that Sushil Arora did not know
and had not named Hemant Garg, Vishnu and Sonveer. Inference
being that he was not with them in the Indica car.
102. The second assertion which again has substance stems from the
deposition of Pushkar Raj/DW-6, who had made a telephone call to
police control room at 1.45 P.M. about a fight (jhagra) at 17, Pusa
Road, City Hospital, which was recorded as DD No.20A, Ex.PW-27/A
by Head Constable Arvind Kumar/PW-27, Police Station Karol Bagh.
Similarly, Head Constable Mahadev Prashad/PW-28 had recorded DD
No.23B, Ex.PW-23/A at police station Rajendra Nagar. DD No.20A
was marked to ASI Deshpal and DD No.23A was marked to ASI
Ramphool for further action. The prosecution did not produce either
ASI Deshpal, police station Karol Bagh and ASI Ramphool, police
station Rajendra Nagar. Their evidence would have been relevant as
they would have visited Chintu Car Point and could elucidated on
presence or absence of Sushil Arora and Rajesh Pandey at Chintu Car
Point. The action taken and the report received with regard to DD
No.20A Ex.PW-27/A or DD No.23B, Ex.PW-23/A has not been
adduced and produced. The visit and the two officers was certainly of
consequence because it would have coinsided with the shooting
incident. Moreover, the police complaint by Pushkar Raj/DW-6
would also reflect that at that time, he or his brother Sushil Arora and
Rajesh Pandey did not intend to resort to violence and had no intention
to cause death for otherwise DW-6 would not have made the said call.
103. I have already dealt with the arguments relating to the call
details records of Sushil Arora and pointed the flaws in the arguments
of defence in that regard. Nevertheless, it is recorded that the
prosecution has failed and not adduced evidence to show and establish
inter-action and connection between Sushil Arora and Rajesh Pandey
and Vishnu, Sonveer, and Hemant Garg before and after the
occurrence and also adduced any evidence so as to establish their
absence from Chintu Car Point.
104. Arguments predicated on exculpatory material creates doubt on
presence of Sushil Arora and Rajesh Pandey in the Indica car. One is
left with reservation and in uncertainty with the prosecution version
based on the evidence led and adduced to implicate Sushil Arora and
Rajesh Pandey. Points recorded above show two different motives
which could be behind the crime. The facts proved overwhelmingly
indicate that the brawl outside Chintu Car Point and not the money
dispute was the compelling factor, though the latter aspect could be
intertwined. Certainty for confirmation of the eye-witnesses
identification of Sushil Arora and Rajesh Pandey is missing and
absent. In these circumstances there is a lingering doubt in my mind
on whether Sushil Arora and Rajesh Pandey were present in the Indica
car. Reasons for the said doubt are manifold and get reflected from the
points noted above in favour of Sushil Arora and Rajesh Pandey.
105. In view of the aforesaid discussion, I would dismiss the appeals
preferred by Hemant Garg, Sonveer and Vishnu with one clarification
that they stand convicted vide judgment dated 2nd July, 2015 under
Sections 302 and 307 read with Section 34 IPC and not under Section
120B IPC. The order on sentence dated 26th August, 2015 which
records that they have been convicted under Section 120-B of the IPC
is incorrect and contrary to the judgment dated 2nd July, 2015. The
order of sentence is modified to this extent.
106. Another error in the order of sentence is that no separate
sentence was pronounced in respect of conviction under Section 307
read with Section 34 IPC. R.K. Gauba J. in his judgment dated 8 th
February, 2017 has in view of the facts and circumstances held that
punishment of life imprisonment with fine deserves to be enforced for
both the offences i.e. under Section 302 as well as Section 307 IPC.
The substantive imprisonment of life on each account would run
concurrently. Under Section 307 IPC where hurt is caused, the
offender is liable to either imprisonment for life or such imprisonment
which may extend to 10 years and is also liable to fine. Second part of
Section 307 is not applicable.
107. I concur with punishment awarded by R.K. Gauba, J. under
Section 307 read with Section 34 IPC keeping in view the nature of
offence and the manner in which firing had taken place. The three
appellants, however, are entitled to benefit of Section 428 IPC and
sentences for the offence under Section 307 read with Section 34 IPC
would run concurrently with the sentence under Section 302 read with
Section 34 IPC.
108. In view of the aforesaid discussion, I would accept the appeals
preferred by Sushil Arora and Rajesh Pandey and hold that they are
entitled to be acquitted by giving them benefit of doubt. If the said
appellants are in custody, they will be released forthwith, if not
required in any other case.
Sd/-
(SANJIV KHANNA)
JUDGE
DECEMBER 5th , 2017
ssn
