Delhi High Court
Kamal vs State on 15 September, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on : 06.08.2020
% Pronounced on : 15.09.2020
+ CRL.A. 96/2019
KAMAL .....Appellant
Through: Mr. Atul Guleria, Advocate.
versus
STATE ..... Respondent
Through: Mr. Ashish Dutta, APP for the State
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE RAJNISH BHATNAGAR
JUDGMENT
RAJNISH BHATNAGAR, J.
1. This is an Appeal against the Judgment dated 13.12.2018 and order on
sentence dated 21.12.2018 passed by the Addl. Sessions Judge-02, South
District, Saket Court, New Delhi vide which the appellant has been
convicted for the commission of offence U/s 302 IPC and sentenced to
undergo rigorous imprisonment for life and to pay a sum of Rs. 5,000/- as
fine and in default of payment of fine to undergo 06 months of simple
imprisonment.
2. Briefly stated the case of the prosecution is that an intimation vide
DD No. 28A dated 05.09.2013 was received regarding gunshot injury to one
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Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
boy. On this, SI Rajinder Singh alongwith Ct. Manish reached in front of
H.No. 5/4, Sector1, Pushp Vihar and found three empty khols (cartridges)
and glass pieces lying there. No eye witness was found at the spot.
Thereafter, SI Rajinder went to Batra hospital and obtained the MLC of
injured Kapil Singh in which it was mentioned that he was brought by his
friends Rohit and Balraj in unconscious state and the patient could not be
revived and declared dead.
3. Thereafter, SI Rajinder recorded the statement of Balraj Singh @
Babli and pursuant to the statement of Balraj Singh @ Babli, FIR u/s
307/302/34 IPC and 27 Arms Act was registered and the investigation was
handed over to Inspector Ajay Pratap Singh who during investigation called
the crime team, took the photographs of the spot, lifted the exhibits i.e. glass
pieces as well as empty khols (cartridges). Blood stains bullet pellets and
glass pieces lying in the XUV car were also lifted. The blood stained
clothes of Rohit Choudhary were also seized, post mortem of dead body was
also go conducted.
4. Appellant Kamal was arrested on 07.09.2013, at the instance of a
secret informer from service road near Tuglakabad Railway station. On the
search of accused Kamal one pistol allegedly used in the crime was
recovered from his left side dub. Thereafter, his disclosure statement was
recorded.
5. During the investigation the mobile phone of the appellant could not
be recovered but during the PC remand the appellant was got identified
through Balraj @ Babli. As per the prosecution at the instance of the
appellant motorcycle used in the offence was recovered from the street in
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
front of House No.B-36, JJ Camp, Tigri which was found to be registered in
the name of Arjun.
6. On 13.09.2013, co-accused Neeraj Kumar surrendered in the Court,
he was arrested and he made disclosure statement in which he disclosed that
on the date of the incident he had taken Kamal (appellant) on motorcycle
and they followed XUV car in which Kapil was sitting. When the car
stopped at Pushp Vihar, appellant fired at Kapil and then he alongwith
appellant fled on the motorcycle. On 14.09.2013, at the instance of co-
accused Neeraj one Nokia phone alleged to have been used in the crime was
recovered. The mobile Number 9899292973 which, according to the
prosecution, was used by the appellant was found to be registered in the
name of one Ranjit Middha who was not traceable. According to the
prosecution, the statement of one Ahmed Parvej and Kanti Devi, mother of
the appellant were recorded who stated that this number was used by the
appellant.
7. The mobile number 9717499375 was found to be allotted to co-
accused Neeraj by his company. Co-accused Arjun could not be arrested
and was declared proclaimed offender. However, later on he was arrested.
Co-accused Arjun was found to be using mobile number 9958669936 (in the
name of his father) and 8527434510 in keeping touch with appellant and co-
accused Neeraj.
8. FSL report of the recovered weapon was obtained in which it was
opined that the recovered cartridges (Khols) were not found to be fired from
the weapon recovered from the appellant.
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
9. Vide order dated 25.02.2014 charges u/s 120B, 302/120B and 307/34
IPC were framed against appellant Kamal and his co-accused Neeraj.
Appellant was further charged with the offence u/s 25 Arms Act. Lateron,
after arrest of co-accused Arjun, supplementary charge sheet was filed and
vide order dated 22.07.2014, charges u/s 120-B/302/307/34 IPC were
framed against him and vide order dated 15.10.2018 charge u/s 174A IPC
was also framed against co-accused Arjun as he was declared proclaimed
offender.
10. We have heard the Ld. counsel for the appellant, Ld. APP for the
state and have also gone through the records of the case.
11. It is submitted by the Ld. counsel for the appellant that the appellant
has been falsely implicated in this case. It is further submitted by the Ld.
counsel for the appellant that all the eye witnesses have turned hostile and
not supported the case of the prosecution and they have failed to identify the
appellant as the assailant. He further submitted that the alleged recovered
pistol at the instance of the appellant is not found to be used in the
commission of crime which is evident from the FSL report. He further
submitted that the prosecution has miserably failed to prove that the alleged
recovered motorcycle is the same on which, according to the prosecution,
the appellant came with co-accused Neeraj to commit the crime. He further
submitted that PW 12 Balraj had not named the appellant as an assailant at
the first opportunity and lateron, after due deliberations, the appellant has
been falsely implicated in this case. He further submitted that the Ld. Trial
Court has failed to appreciate that the prosecution has not been able to prove
that mobile number 9891292973 was used by the appellant in committing
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
the crime. He further urged that the Ld. Trial Court has wrongly relied upon
the call details of mobile number 9891292973 to reach to the conclusion that
the appellant was in the vicinity of the crime scene at the relevant time,
whereas, on the same set of evidence, the Ld. Trial Court has acquitted co-
accused Neeraj and co-accused Arjun. It is further urged by Ld. counsel for
the appellant that the Ld. Trial Court has wrongly relied upon the testimony
of PW 22 and document Ex. PW 22/A which is in total contradiction to Ex.
PW 6/A. He further submitted that the prosecution has miserably failed to
prove that the appellant has any motive to eliminate Kapil.
12. On the other hand, it is submitted by the Ld. APP for the state that the
eye witnesses have supported the case of the prosecution in regard to the
manner of commission of offence, and they have only turned hostile qua the
identity of the assailants. The Ld. APP further submitted that the statement
of the hostile witnesses over the factum of identity can be corroborated
through their statement U/s 161 Cr.P.C., where they have categorically
named the appellant and the Ld. APP has relied upon "Paramjit Singh @
Pamma Vs. State of Uttarakhand, Crl. Appeal No. 1699/2007 dated
27.09.2010". The Ld. APP has further submitted that the mobile location
of the appellant was found within the vicinity of scene of crime. He further
submitted that there is no infirmity in the impugned judgment.
13. In order to prove its case the prosecution has examined 43 witnesses.
The Ld. Trial Court vide impugned judgment dated 13.12.18 came to the
conclusion that the prosecution has been able to prove its case against the
appellant beyond reasonable doubt, and convicted him for the commission
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
of offence U/s 302 IPC but observed that the prosecution has failed to prove
the offence of conspiracy and other charges framed against the appellant.
14. In the impugned judgment, the Ld. Trial Court has observed that the
material circumstances on which the prosecution relied are the testimonies
of eye witnesses i.e. PW 8 Rohit Choudhary, PW 11 Praveen, PW 12 Balraj
@ Babli, and the testimonies of PW 13 Swaroop Singh, PW 22 H.C.
Montu, Ex. PW 22/A, recovery of pistol and the motorcycle used in the
crime. The Trial Court has also relied upon the call details of the appellant
alongwith his other co-accused persons showing their presence near vicinity
of the crime scene.
15. However, the Ld. Trial Court in the impugned judgment observed that
the prosecution has failed to prove its case against co-accused Neeraj and
co-accused Arjun @ Pussy and acquitted both of them. The trial Court has
also not believed the case of the prosecution with regard to the arrest of the
appellant alongwith pistol, and observed in the impugned judgment that the
recovery of the pistol in the manner as suggested by the prosecution was
doubtful. The Trial Court has also not believed the recovery of motorcycle
alleged to have been used in the commission of crime. At this stage, we
may notice the material and relevant testimonies recorded by the Trial
Court.
Testimony of the eye witnesses
16. Testimony of PW 8 Rohit Choudhary : His examination-in-chief
was recorded on 16.08.2014. He deposed that on 05.09.2013, he alongwith
Balraj @ Babli, Shiv Shakti, Ram Singh and Kapil had appeared in the
Court of Sh. Rajeev Bansal, Ld. ASJ as their criminal case U/s 307/34 IPC
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
was pending. He further deposed that he and Balraj @ Babli were charged
for the offence U/s 307/34 IPC, and remaining three associates were
discharged by the Court on that day. He further deposed that on 5.09.2013
at about 3:30 p.m. he alongwith Balraj @ Babli and Kapil left Saket Court
by Mahendra XUV bearing No. DL-12CA-2055 and proceeded towards
Pushp Vihar as he had to collect money from his friend, namely, Praveen @
Teetu, so he had made a call to Praveen from his phone bearing No.
9873479378 on his mobile phone bearing No. 9711119900. When he
reached near the house of Praveen at Pushp Vihar, Sector 1, he stationed his
car near a park at some distance from the house of Praveen, as he had seen
him coming from his house. He further deposed that he got down from his
car leaving Kapil and Balraj inside the car and went 5/6 meter towards his
friend Praveen and collected Rs. 20,000/- from him. While he was talking
with him, he heard 4-5 rounds of firing. He further deposed that he turned
towards his vehicle and picked up one piece of stone and threw the same
towards the assailant who were two in numbers. He further deposed that
they fled on the motorcycle and while running, pistol used in the crime fell
down from the hand of assailant.
17. He further deposed that he could not see both the assailants at the spot
properly. He further deposed that because of this reason he cannot identify
them. He further deposed that on the date of the incident he had taken
injured Kapil to Batra hospital in his vehicle, alongwith Balraj and Praveen.
He further deposed that he had got Kapil admitted in the hospital at about
3:45 p.m. He further deposed that he had made a call at 100 number to the
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Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
police from the spot about the incident. He further deposed that two police
officials reached at Batra hospital after about 5 minutes of their reaching.
18. He further deposed that special staff police officials had also reached
Batra Hospital and they took Balraj @ Babli somewhere else. He was also
taken to police station by local police official of P.S. Saket and he was kept
in the police station for about 5 days and finally released on 10.09.2013. He
further deposed that during those 5 days police had shown him one person
saying that "Iska nam Kamal hai. Isne goli mari hai". Again said "Police
ne kaha tha ki iska nam Kamal hai". During the course of his examination-
-in-chief, the appellant was shown to him and on seeing the appellant he
stated that "Mai inhe nahi pechan sakta kyoki ye vaha nahi thye."
19. This witness was declared hostile and was cross examined by the Ld.
APP for the State. In his cross examination by the Ld. APP, he denied the
suggestion that PW Balraj had made call at number 100 about the incident
through his phone. However, he stated that he had made a call at 100
number about the incident from the spot through his mobile phone. He
further stated in his cross examination conducted by the Ld. APP, that Balraj
had also talked to the police while they were on their way to hospital and
police officials were making detailed inquiry from them.
20. This witness was also cross examined by the Ld. counsel for the
appellant and, during his cross examination, he categorically stated that he is
not identifying the appellant and the co-accused persons in the Court as he
had not seen them firing on Kapil. He further stated in the cross
examination that there was no enmity between appellant and deceased Kapil
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
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to HMJ Rajnish Bhatnagar.
and also stated that Balraj @ Babli had not disclosed to the police about the
involvement of the appellant and Neeraj in his presence.
21. PW 11 Praveen @ Teetu : His examination in chief was recorded on
27.11.2014, wherein he deposed that PW 8 Rohit Choudhary is his friend
and he had borrowed some money from him about one year prior to
September 2013. He deposed that one day at about 3:00/4:00 p.m Rohit
had come to his house to take his money back, but he does not remember
the exact date. He further deposed that Rohit had come by XUV Mahendra
alongwith some persons who remained inside the car.
22. He further deposed that his friend Rohit had got down from the car
and he returned a sum of Rs. 20,000/- to him and while Rohit was counting
the said amount, he heard gun shots from the place where the vehicle of
Rohit was parked. He further deposed that Rohit immediately turned
towards his car and saw one boy on the motorcycle near the said car and he
also noticed that one person had opened fire towards the car and thereafter
the said person fled with his associate on the motorcycle.
23. He further deposed that he and his friend Rohit Choudhary chased
them but they succeeded in escaping on the motorcycle by firing in the air.
He further deposed that when they reached near the car of Rohit, they
noticed that one Kapil was lying in injured condition in the car and one
person Balraj who was inside the car of Rohit had not sustained any injury
in the incident. He further deposed that he with the help of Rohit and Balraj
removed injured to Batra Hospital, where Kapil was declared dead by the
doctor. He further deposed that he can identify the assailant whom he had
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
seen escaping on the motorcycle after committing the crime. He failed to
identify appellant and Neeraj as the persons who had committed the crime.
24. He was declared hostile and cross examined by the Ld. APP. In his
cross examination he denied the suggestion that he had identified accused
Kamal (appellant) and Neeraj as assailant before the police during the course
of investigation. He further denied that Balraj had made a call on 100
number about the incident after taking phone from Rohit.
25. This witness was not cross examined by the Ld. counsel for the
appellant.
26. PW 12 Balraj @ Babli : The examination-in-chief of this witness
was recorded on 27.11.2014 wherein he deposed that on 05/09/2013 at
about 10:00 a.m. he alongwith his friend Kapil and Rohit had appeared
before the Court of Sh. Rajeev Bansal, ADJ Saket as their case U/s 307/34
IPC was pending trial. He further deposed that on that day, at about 2:30
p.m/3:00 p.m. they went to Pushp Vihar from the Court to meet one Praveen
as his friend Rohit had to collect some money from him. He further deposed
that Rohit had parked his car near the residence of Praveen in Pushp Vihar
and he got down from his car and went towards the house of Praveen. He
deposed that he and Kapil were inside the car when someone fired towards
them from behind and when he took turn, he noticed that one person was
firing on his friend Kapil. On hearing the sound of bullet, he tried to save
himself.
27. He further deposed that he got down from the car and raised alarm
and noticed that blood was oozing from the bullet injury of his friend Kapil.
He further deposed that he had seen the shooter while running and had also
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
seen one person who was sitting on the bike on which the assailant escaped.
He further deposed that his friend Rohit alongwith Praveen had come there
and they all raised alarm "Pakdo-Pakdo Goli Mar Di". He further deposed
that he made a call at 100 number about the incident from the phone of
Rohit Choudhary and with the help of Rolhit Choudhary and Praveen he
removed Kapil to Batra hospital where he was declared dead. Police
recoded his statement Ex. PW 12/A at the police station bearing his
signature at point A. He further deposed that he does not know Kamal and
that he had not disclosed the name of Kamal as an assailant in his statement
given to the police. He further deposed that he was kept in the police station
for about 3-4 days and his signatures were obtained on blank papers. He
failed to identify the appellant in the Court as the assailant.
28. This witness was also declared hostile and cross examined by the Ld.
APP. He denied the suggestion that he had identified accused Kamal and
Neeraj as assailants before the police during the course of investigation. He
denied recording of his supplementary statement on 08.09.2013 and also
denied that he had identified the appellant as the shooter before the police by
saying that he had committed the murder of Kapil.
29. This witness was cross examined by the Ld. counsel for the appellant
and, in his cross examination, he stated that he had not disclosed the name
and description of the shooter as well as his associate when he made a call to
the police on 100 number. He admitted his signatures on Ex. PW 12/A but
categorically stated that it was blank when his signatures were obtained.
30. According to the prosecution all the above mentioned three persons
are the eye witnesses of the incident. These three witnesses have supported
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
the case of the prosecution in regard to the manner in which the occurrence
took place, previous and subsequent facts, investigation conducted in their
presence, but they have not supported the case of the prosecution on the
point of identification of the appellant as the person who opened fire on
Kapil
31. The Ld. Trial Court has observed in the impugned judgment that on
over all appreciation of the testimonies of PW 8, PW 11 and PW 12, it
cannot be explicitly inferred that accused Kamal was not among the
assailants who fired at the deceased, and further observed that the case of the
prosecution cannot be thrown away because of the non identification of the
assailants by these three material witnesses. The Ld. Trial Court further
obsereved that corroboration is required for inferring the identity. So from
the observations of the Ld. Trial Court, even the Ld. Trial Court was not
convinced on the basis of the testimonies of these 3 eye witnesses that it was
the appellant who had fired upon Kapil and that is why the Ld. trial court
chose to look for corroboration.
32. We have also analyzed the testimonies of the 3 eye witnesses namely
Rohit, Balraj and Praveen. All the 3 witnesses have not supported the case
of the prosecution on the point of identification of the assailant. It is also
pertinent to mention here that PW 8 and PW 11 have not even stated in their
statements U/s 161 Cr.P.C that they can identify the assailants if shown to
them. What these two witnesses have stated is that they had seen the
assailant, meaning thereby, they had seen the assailants i.e. one person
committing the crime but what is evident from their statement is that they
had never stated that they can identify the said assailant. In our opinion,
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
seeing the incident happening is one thing and saying that one can identify
the person committing the crime is another thing and the first does not
necessarily lead to the second.
33. PW 8 and PW 11, alongwith PW 12 Balraj, had removed the injured
Kapil to the hospital and it is in the car that Balraj disclosed the name of the
appellant as the person who had fired at Kapil. According to the prosecution
it was Balraj who had called the police after taking the phone of PW 8 Rohit
Choudhary. PW 8 Rohit Choudhary has also deposed that he had talked with
the police from his mobile phone and Balraj had also talked to the police
from his number, and police made detailed enquiry from them while they
were on their way to hospital. Here it is pertinent to mention that according
to PW 8 and PW 11, while they were in the process of removing the injured
to the hospital Balraj had disclosed the name of the appellant as the assailant
to them. If it was so, then it is not understood why the name of the appellant
was not given to the police at the very first instance i.e. when PW 8 and PW
12 Balraj were in conversation with the police. Pertinently, on the basis of
their information Ex. PW 6/A was recorded in which nowhere it has been
stated that it was the appellant who had fired upon Kapil. For better
appreciation of this fact we have examined Ex. PW 6/A in detail and the
same is reproduced herein below:
"KITE NET INFO FOR IMPV IN BATRA HOSP. FOR
DETAILS OF PATIENT KITE-58 05.09.2013 15:52:49
CALL IS TRUE MOUKA PAR 3 KHALI KHOL MILE HAI
JO 9 MM KE LAG RAHE HAI PHONE PAR CALLER
BALRAM NE BATAYA KI MERE FRIEND KAPIL KO
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
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to HMJ Rajnish Bhatnagar.
GOLI LAGI HAI PUBLIC KA KOI ADMI KUCH BHI
NAHI BATA HAI BUS INTNA BATA RAHE HAI KI
HAMNE TO AVAJ SUNI THI QRT MAUKA PAR
C/ROOM INFORM 05.09.2013 15:56:53 SHO SAHIB
MAUKA PAR 05.09.2013 16:11:24 FROM ____ KITE 58
____ FROM BATRA HOSPITAL. CALL IS TRUE
CALLER BALRAJ NE BATAYA MERE DOST KAPIL
S/O SWAROOP SINGH AGE 35 R/O A-BLOCK,
SANGAM VIHAR KO UNKNOWN BLACK MCYCLE
PER 2 LADKE EK NE HELMET PEHNA THA DUSRE
NE MOUTH PER KAPDA LAGA RAKHA THA KAPIL
KO GOLI MAR KE PUSHP VIHAR KI SIDE BHAG GYE
RTO WITH STAFF MAUKA PAR HAJ LADKA BEHOSH
HAI JISSE SINE ME GOLI LAGI HAI. 05.09.2013
16:26:54 CALLER BALRAJ NE AB BATAYA HUM
TEEN DOST ROHIT AND KAPIL KE SATH CAR
MAHINDRA XUV DL 12 C 2055 MAI AJ COURT NO.
303 MAI 307 IPC ME BARI HO GAYE THEY HAMRE 2
SATHI RAM SINGH AND SHAKTI BHI COURT MAI
THEY JO BAAD MAI APNE GHAR CHALE GAYE.
HUM 3 SANATAM DHARAM MANDIR SEC. 1 PUSHP
VIHAR PAAS THEY 2 LADKE HULIYA NA MALUM
BALCK M/CY PER AYE PEECHEY SEAT PER BAITHE
KAPIL KO GOLI MAR KE BHAG GYE. LADKO KO
HUM SAMNE AANE PER PEHCHAN SAKTE HAI.
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
CALL 2/3 MIN PEHLE KI GHATNA HAI HUM INI KO
BATRA HOSPITAL LE AYE HAI JO ABHI OPERATION
THEATRE ME HAI EK KHALI KHOL CAR ME MILA
HAI (C/ROOM INFO) 5/9/13 16:28:34 B/C ON EAGLE
ALPHA NET AND RAX AND C/ROOM INFO FOR ONE
HOUR CHECKING 05/9/13 16:30:26 K-58.....BALRAJ KA
ADDRESS HAI BALRAJ S/O SH. RAMPAL AGE 36 R/O
A-157 SANGAM VIHAR AND KAPIL KA ADD HAI A-
319 SANGAM VIHAR RTO SAKET HOS. MAI
(C/ROOOM INFO) 5/9/13 16:46:27 E-19....05/09/13
16:47:40 E-19....MAUKA PER 9 MM K 3 KHALI KHOL
MILE HAI AUR EK KHALI KHOL CAR ME MILA HAI
SHO ACP WITH STAFF MAUKA PER THEY C/ROO
INFO."
34. This document Ex. PW 6/A which is the PCR form was filled in by
PW 6 W/Ct. Sunita. In her testimony she has deposed that at about 3:26
p.m. through phone No. 9711119900 belonging to one Rohit an information
was received that one boy was shot at his chest and he was taken to Batra
Hospital, meaning thereby, when the information was given to the police at
3:26 p.m., the identity of the appellant though already known to PW 8, PW
11 and PW 12, was not disclosed by them.
35. After the PCR call was made, PCR officials PW 21 H.C. Ramesh and
PW 22 H.C. Montu Ram also reached at the spot. PW 21 H.C. Ramesh has
deposed that on 05.09.2013, he was working as in-charge PCR Van Eagle-
19. On that day of the incident i.e. 05.09.2013, at about 3:28 p.m. he
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
This file is digitally signed by PS
to HMJ Rajnish Bhatnagar.
received a call from control room that someone was shot near Pushp Vihar
Sector-1, so he alongwith his staff reached the spot at 3:30 p.m. but the
injured was not found there. He further deposed that later on he made a call
to the caller Balraj telepohonically who told that his friend Kapil had
sustained bullet injuries and he was taking him to hospital and thereafter he
switched off his mobile phone. He has further deposed that after sometime
another PCR van Eagle-20 also reached there whose in-charge was Ct.
Montu Ram (PW 22).
36. The Ld. Trial Court has placed much reliance on the testimony of PW
22 who has deposed that he reached the spot at about 3:28 p.m. after
receiving a call from PCR control room that one person has been shot near
park Pushp Vihar. When he reached there, he came to know that injured has
been removed to Batra hospital. He has further deposed that PCR van eagle
19 was also present there. According to PW 22, caller Balraj had told that
brother of Monti has fired upon Kapil and thereafter Balraj had switched off
his mobile phone. This witness has proved the 3 attested pages of log book
as Ex. PW 22/A. The Ld. Trial Court has also relied upon the log book
entry recorded at 3:37 p.m., wherein it has been recorded that Balraj had told
that brother of Monti fired upon Kapil.
37. First of all, the prosecution has not proved on record as to who made
this entry in the log book. PW 22 has not stated in his examination-in-chief
that the entry was made by him. Though this log book has been got
exhibited by the prosecution through PW 22, yet he is totally silent on this
aspect in his deposition. Now as far as his talking to Balraj on phone is
concerned, the same raises doubts because, firstly, no such call record of
Signature Not Verified
Digitally signed by:DARSHAN
KUMAR GODARA
Signing Date:17.09.2020 14:12:52
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talks between PW 22 and Balraj has been placed and proved on record. It is
worth mentioning here that police never had the phone number of Balraj. In
this regard Ex. PW 6/A assumes importance because the phone number
recorded in this document is 9711119900, which is of Rohit. Therefore, by
no stretch of imagination PW 22 could have talked to Balraj and it is
nobody's case that Balraj was carrying the mobile phone of Rohit.
38. Now coming to the testimony of PW 21, who was the first to reach
the spot. According to him, he had made call to caller Balraj telephonically.
But from his testimony, it is evident that the name of the assailant was not
disclosed to him by Balraj who-according to this witness, switched of his
mobile phone after some time.
39. PW 22 had reached the spot at around 3:32 p.m i.e. within 2 minutes
of PW 21 reaching the spot, so they both i.e. PW 21 and PW 22 claimed to
have talked with Balraj and, according to both of them, Balraj used to
switch of his mobile phone. It does not appeal to logic that Balraj-in such a
situation, when he was removing his injured friend to hospital would keep
on switching his mobile phone on and off. Moreover, from the records it is
noted that the number from which the call was made to the police did not
belong to Balraj. So, it is highly improbable that PW 12 Balraj talked with
PW 22 and PW 21, and it also does not appeal to logic as to why he would
not disclose the name of the assailant to PW 21 who called him first from
the spot and within a span of 4-5 minutes he would reveal to PW 22 that
brother of Monti had shot Kapil.
40. Now if PW 22 was to be believed that Balraj had told him about the
assailant, then why he remained silent and did not share this information
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with PW 21 H.C. Ramesh is also not explained. According to PW 22, after
some time many senior police officials reached the spot and according to
PW 22 he had informed about the identity of the assailant to ATO. ATO has
been examined as PW 43 (Inspector Hira Lal), and he has not stated in his
testimony that PW 22 had informed him about the name of the assailant.
So, this conduct of PW 22 in not informing about the name of the assailant
to PW 21 and other Sr. police officials makes him an unreliable witness.
Therefore, we have no hesitation in discarding the testimony of PW 22 and
document Ex. PW 22/A proved by him, which is in total contradiction to Ex.
PW 6/A which has been reproduced hereinabove, wherein there is no
mention that brother of Monti had shot Kapil.
41. In order to seek corroboration in regard to the identity of the assailant,
the Ld. Trial Court has heavily relied upon the statements of PW 13
Swaroop Singh, who is the father of deceased Kapil, and PW 22 H.C. Montu
Ram. PW 13 has deposed that on 05/09/2013 at about 3:45 p.m his
daughter-in-law Seema told him that she had received a telephonic call from
Balraj @ Babli that Kapil was admitted in Batra Hospital after sustaining
bullet injury. Thereafter, he alongwith Sanjay and other family members
reached Batra Hospital where Balraj met him and told him that one Kamal
had fired at Kapil. He further deposed that after some time doctor told them
that Kapil had died.
42. This witness was cross examined by the Ld. counsel for the appellant
and in his cross examination he has stated that neither the police asked him
about the factum of involvement of Kamal as disclosed by Balraj to him, nor
he told this fact to the police. Now this conduct of this witness is highly
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improbable. According to this witness, immediately on coming to the
hospital he came to know the name of the assailant as Kamal, but he made
no efforts to inform the police-who was present in the hospital, about the
identity of the assailant and even after coming to know about the death of
his son, he kept quiet and did not make any hue and cry, and even then he
did not disclose the identity of the assailant to the police. This witness has
further stated that he came to know about the incident from his daughter-in-
law Seema-who was informed by PW 12 Balraj, but again the conduct of
Seema is also very questionable because she never asked from Balraj as to
who shot her husband. It is pertinent to mention here that PW 12 Balraj
never stated before the police in his statement Ex. PW 12/A and during the
course of his examination-in-chief that he had informed Seema through
telephone that her husband Kapil was shot by appellant Kamal. Now this
witness has not supported the case of the prosecution. During the course of
his cross examination by the Ld. APP, it was not even suggested to him that
he had made a call to Seema informing about the firing incident and that the
name of the assailant was Kamal. The only logical inference which can be
drawn is that even as per the prosecution PW 12 had never made any
telephonic call to Seema informing about the incident or the assailant.
The prosecution has not placed on record call records to show that any call
was made by Balraj to Seema. Pertinently, in the instant case, the police has
collected the call records at each and every stage but have curiously failed to
do so here. The prosecution has not even examined Seema and testimony of
PW 13 Swaroop Singh is hearsay and not admissible. Also, looking into his
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conduct discussed hereinabove, no reliance can be placed upon the
testimony of this witness PW 13.
43. In the instant case, the ruqqa was sent at about 6:00 p.m. and in the
ruqqa the name of the appellant as assailant has been mentioned. In our
opinion, if the details of the assailant were known to the police through
Balraj-as claimed by them, then there was no occasion to keep the ruqqa
pending till 6:00 p.m. Therefore, it appears that much deliberation has gone
into before preparing the ruqqa. It is well said that "a man may lie but
circumstances don't" and the circumstances of this case belie the theory of
the prosecution that immediately after the incident Balraj told to the police
about the involvement of appellant.
44. Therefore, we are of the opinion, that no reliance can be placed upon
the testimonies of PW 8, PW 11, PW 12, PW 13, PW 22 and also on Ex.
PW 22/A on the basis of which the Ld. ASJ has arrived at the conclusion as
to the identification of the appellant as the assailant.
45. Now let us see if there are any other circumstances, through which the
appellant can be connected with the crime in question. The law as far as
circumstantial evidence is concerned, is well settled. The principles of law
governing the proof of a criminal charge by circumstantial evidence need hardly
any reiteration. From the several decisions of the Supreme Court available on the
issue, the said principles can be summed up by stating that not only the
prosecution must prove and establish the incriminating circumstances against the
accused beyond all reasonable doubt, but the said circumstances should complete
the chain and they must give rise to only one conclusion to the exclusion of all
others, namely, that it is the accused and nobody else who had committed the
crime. The above said principles are deducible from the 5 principles of law laid
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down by the Supreme Court in "Sharad Birdhichand Sarda Vs. State of
Maharashtra", (1984) 4 SCC 116.
46. The Trial Court has not believed the manner of arrest of the appellant
with pistol and has observed that the recovery of pistol in the manner as
projected by the prosecution is doubtful. The Trial Court has also observed
that the prosecution has been unable to prove that the motorcycle bearing
No. DL 3S BS 7176 was used in the commission of the crime. The Trial
Court has placed heavy reliance on the phone locations of the accused
persons namely Kamal (appellant), his co-accused Neeraj and Arjun.
According to the prosecution, Arjun (acquitted) had told the appellant about
the movements of deceased Kapil with Rohit Choudhary and Balraj from
Saket Court. The trial Court has also acquitted accused Neeraj who was
using phone No. 9717499375, and while acquitting Neeraj and Arjun, the
Ld. Trial Court observed that the evidence against these two accused
persons is only that as per their mobile call details, they were in contact
with the appellant in the vicinity of Saket Court and Pushp Vihar at the time
of commission of offence. It is further observed by the Ld. Trial Court
that these circumstances are not sufficient to involve them in the present
offence through the offence of conspiracy. The Ld. Trial Court has further
observed in the impugned judgment that mere presence of Neeraj and Arjun
on the basis of mobile record with accused Kamal (appellant) in the vicinity
at the crime scene is not sufficient to make them culpable for the offence of
conspiracy, and they have not been found to be involved in any overt act.
However, the same benefit has not been given by the trial court to the
appellant and the trial court has come to the conclusion that the appellant
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was using mobile No. 9891292973 and, according to the cell ID chart of
this number, he was found in the area of Saket and Pushp Vihar at the time
of commission of the offence, and this circumstance was held against the
appellant.
47. It has been vehemently argued by the Ld. counsel for the appellant
that the prosecution has not been able to prove that the mobile number
9891292973 was used by appellant Kamal. In order to prove that the
appellant was using mobile number 9891292973, the prosecution examined
PW 14 Ahmed Parvej and PW 31 Kanti Devi, who is the mother of the
appellant. Neither PW 14 nor PW 31 has supported the prosecution version
over the fact that the said mobile number was used by Kamal (appellant).
PW 41 is the IO of the case and he has categorically stated that mobile
number 9891292973 is of one Ranjit Middha who was untraceable. PW 14
Ahmed Parvej in his testimony had denied the suggestion that he was using
the connection number 9999620007, and stated that one Dharambir had
given a phone number 9891292973 to call him in case his phone was not
reachable. So from the testimony of PW 14, it can be inferred that mobile
No. 9891292973 exists, but it was used by one Dharambir @ Sallu who has
not been examined by the prosecution. PW 31, who is the mother of the
appellant, also denied the suggestion that she is the registered customer of
mobile No 990635813 and also denied the suggestion that the appellant
was using the mobile No. 9891292973. The prosecution has examined PW
34 Pawan Singh, Nodal Officer, Vodafone who proved on record the
customer application form (Ex. PW 34/D) of mobile No. 9891030955
which was in the name of Kanti Devi-mother of the appellant, and CDR
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details Ex. PW 34/B of mobile No. 9891292973 which, according to the
prosecution, was being used by the appellant showing that he was calling or
receiving calls from mobile No. 9891030955 number of times on 05.09.2013
and even prior to the said date.
48. Mere calling and receiving calls from mobile No. 9891292973 does
not prove the fact that the said mobile was used by the appellant, when PW
31 has categorically denied that the appellant was using the said mobile
number. It is pertinent to mention here that PW 14 Ahmed Parvej had
deposed that one Dharambir had given the questioned phone number i.e.
9891292973 to call him in case his phone is not reachable. So it was
incumbent upon the prosecution to have examined Dharambir which has not
been done by the prosecution for the reasons best known to it and had he
been examined, it would have become clear as to how this number reached
in the hands of the appellant. But the IO failed to examine Dharambir as a
witness in this case and non examination of Dharambir leaves a missing link
as far as the fact of the appellant using mobile number 9891292973 is
concerned. It was upon the prosecution to prove by way of positive
evidence that it was the appellant, and none else, who was using the mobile
phone No. 9891292973. In this regard reliance can be placed upon "Rohit
Dhingra & Anr. Vs. State of NCT", (2012), Criminal Appeal No. 926/2011
in which it has been held that :
"The inference drawn on the basis of mobile tower details in
the documents (Ex. PW 16/C and Ex. PW 16/D) could not
have been held against them. That someone could have
been present in the vicinity of scene of crime s a matter of
probability. However, for the Court to conclude that he
was actually present, the prosecution had to establish- by
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application of the only relevant rule of evidence in this
case i.e. that only the accused and one else was present at
the scene of crime. In other words, in the absence of
positive material proving beyond reasonable doubt that
the accused was at the scene of occurrence, the Trial
Court could not have concluded that the appellants
were so present in this case and then shifted the burden
(not merely the onus ) of proving that they were not at
that place at the time when offence was committed".
49. While acquitting Neeraj and Arjun who were projected as co-accused
of the appellant, the Trial Court acquitted them holding that simply their
presence in the vicinity of the crime scene on the basis of their mobile
location cannot make them culpable in the crime. Similar analogy applies to
the appellant as well-rather with more force, as compared to co-accused
Neeraj and Arjun who have been acquitted by the Trial Court.
50. In the case of appellant Kamal, the prosecution has not been able to
prove as to how the number 9891292973 came in the hands of the appellant
which he was allegedly using. It is the cardinal principle of law that the
prosecution has to stand on its own legs, and cannot draw benefit from the
deficiency of the decence. Having said that, it was for the prosecution to
prove by way of positive evidence that it was the appellant and no one else,
who was using this mobile number i.e. 9891292973.
51. According to the prosecution, the appellant had motive to kill Kapil
as he was involved in the murder of his brother Monti, and in order to take
revenge the appellant fired on deceased Kapil. PW 41 IO of this case has
stated that FIR U/s 365 IPC has been registered but except this nothing has
been brought on record to suggest that deceased Kapil was named in the said
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FIR or that any kind of role was assigned to deceased Kapil in the said FIR
wherein, according to the prosecution, brother of the appellant was
murdered. The Ld. Trial Court while coming to the conclusion that the
appellant had the motive to kill Kapil has relied upon the testimony of PW
12 Balraj but, as already observed hereinabove, PW 12 has not supported the
case of the prosecution. The prosecution has also failed to prove on record
that it was the appellant who had fired upon Kapil, therefore, coupled with
the facts that the prosecution has not brought on record sufficient material to
prove on record that the appellant has a motive to eliminate Kapil, therefore,
in our opinion, the prosecution has failed to prove that the appellant had any
motive to kill Kapil.
52. We have discarded the testimonies of the eye witnesses and have
reached to the conclusion that they are not reliable witnesses, therefore, we
have looked into as to whether the prosecution has been able to bring on
record other circumstances so as to reach to the conclusion that it was the
accused, and none else, who has committed the crime and whether the
circumstances so brought on record by the prosecution satisfy the test as
laid down in the judgment "Sharad Birdhichand Sarda Vs. State of
Maharashtra", (1984) 4 SCC 116.
53. As far as the judgment "Paramjit Singh @ Pamma Vs. State of
Uttarakhand, Crl. Appeal No. 1699/2007 relied upon by the Ld. APP for the
state is concerned, there is no dispute with regard to the propositions of law
laid down in the said judgment. We have perused the said judgment but the
same is not applicable to the facts and circumstances of the present case, as
each criminal case revolves around its own peculiar facts and circumstances.
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54. In our opinion, the prosecution has failed to prove even by way of
circumstantial evidence that it was the appellant, and none else, who has
committed the crime as the prosecution has failed to prove the following:
(a) that it was the appellant and none else who has fired upon deceased
Kapil;
(b) recoveries at the instance of the appellant;
(c) motive for the crime in question;
(d) the prosecution has further failed to prove that it was the appellant
who was using mobile No. 9891292973;
(e) the prosecution has further failed to connect the gun allegedly
recovered at the instance of the appellant with the crime;
(f) the prosecution has also failed to prove that the alleged motorcycle
bearing No. DL 3S BS 7176 was used by the appellant while escaping
from the scene of crime.
Therefore, the prosecution has failed to bring this case within the purview of
5 golden principles as laid by the judgment "Sharad Birdhichand Sarda Vs.
State of Maharashtra", (1984) 4 SCC 116.
55. As a result of the above discussion, the appeal is allowed. The impugned
judgment of conviction and order of sentence qua the appellant are quashed and
set aside. The appellant is acquitted for the offence punishable under Section 302
IPC and is directed to be released forthwith, unless required to be detained in any
other case. The appellant shall fulfill the requirements of Section 437-A of the
Cr.P.C. at the earliest.
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56. The appeal is disposed of. Trial court record be sent back forthwith
alongwith a certified copy of this judgment.
RAJNISH BHATNAGAR, J
VIPIN SANGHI, J
SEPTEMBER 15, 2020
Sumant
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