Sidharath Bansal v. State (NCT of Delhi)

15. Ashu Gael (PWI[2]) has confirmed the testimony of PW[9]. She has deposed that at 12.00 Noon on 23rd June, 2005, she was in the kitchetl on the ground floor when someone rang the door bell. Her father in law (deceased) who was sitting in the drawing room went to open the door. Two young strong built persons entered the house. They claimed that they hadcome from Punjabi Bagh and Singla Ji had sent them. The deceased got up to make a calL Her mqther-in-law and children were also present in the drawing room. She was standing. The appellants took out a knife and a revolver, when her father in law " started making phone call. The deceased was asked to put down the receiver and hand over valuables in the house to them. Her father ip law resisted and was hit by knife on the head and the person holding the revolver fired 5-6 bullets. She identified the two appellants and stated that the appellant Nitin Nagpal who WaS sitting on the wheel chair in the court, had fired bullets on her father-irt-law and the other appellant Rambir Jhakhar had knife in his hand, They tied her mother in law's feet and hands with a rope and applied tape on her _ mouth and on the children. The appellants went upstairs on the first floor and then to the second floor. On the first floor, appellants threatened to kill her and. had aimed the revolver at her head and had asked her to hand over val~ables CrL A. 132312013. lying in the house. They opened a almirah on the first floor and removed jewellery. Appellants took her to the second floor and threatened Taruni Gael. She was threatened that PW12 would be killed and,was asked to hand over valuable articles. After some time, door bell rang on the ground floor and· appellant j.e. Nitin Nagpal who was having revolver took her to the ground floor and asked her to state that her father in law was sleeping and the person at the door should corne back after sometime. She followed the instructions and thereafter closed the door and bolt it from the inside. Nitin Nagpal who was present in the court on wheel chair was identified by her as the person who. brought her to the ground floor and was having a revolver. The second appellant Rambir 1hakhar had remained on the second floor where Taruni Goel and the e, children were present. She identified the second appellant Rambir Ihakhar. Thereafter'she:md Nitin Nagpal again went to the second floor to the room of Taruni Goel. Meanwhile, the door bell rang for the second time. Two appellants took her to the ground floor and ran out from the back door of the house. She untied her mother in law and children and removed tape. She heard crowd making noise outside her house. Her rela~ive Sanjay Mittal came and. removed Giriraj Kishore to the hospital. She had also heard bullet firing outside and she along with Taruni Goel went outside her house and came to know that some police officers had received bullet ihjuries at the hands of the appellants..The appellants'were lying injured and the police had encircled them. She again identified both the appellants present in cOUli as one who had trespassed into ----- -- ------------~- --~their house and killed Giriraj Kishore and committed robbery. She identified the knife and revolver which were shown to her and the same were mal-ked as Ex.P-3 and Ex.P-9. She also identified the clothes of the deceased. In the cr.oss-examihation, she accepted that the deceased was not wearing any shirt at thetime of occurrence. We note that no shirt of the deceased was seized and/or marked as exhibit. She has stated that five steel glasses were visible in a photograph on the stool and one glass was on the floor. This does not show; whether two or more persons had entered the house. Presence of steel glasses and their number cannot be indicative of the number of assailants who had entered the house. tl. She has stated her statement was recorded on 24 1 June, 2005. • 16. Taruni Gael (PW[9]) has deposed that on 23rd June, 2005, at about 12.15.PM, she was present in her room on the second floor of her house when she heard bullet firing and cries of her father in law from the ground floor. She peeped down and heard some cries of more persons. She bolted her room from inside and made a call to Deepak Gael and informed him that some persons had entered the house and firing had taken place. At that time Ashu Gael and her children came upstairs to the second floor and knocked on the door of her room _ again and again. She cried that the persons present would kill them. After some time she opened the door and saw two healthy persons. One was holding a revolver and the other was holding knife in his hand. They entered the room Crl. A. 132312013 Page 21 of68 - - - - - - - -_ _ _ _.c _ _ _._ -. '-----------_.__._-, and asked her to hand over valuabie articles to them. They searched almirah of her husband. After some time door bell rang and. both the assailants took Ashu Goel and the children downstairs. She peeped down and found that the assailants had fled from the back door of their house. Police came to their house and her relatives removed her father in law to the hospital. Sheheard cries from outside their house that the assailants had been caught and beaten. She went outside the house and came to know that assailants had injured four police officers and had been apprehended and beaten by pUblic. She and Ashu Goel went and saw the two assailants who were lying near the house of Mr. Mehta, in injured condition. She identified the assailants as the persons who had entered into their house. NitinNagpal had a revolver in his hand and Rambir lhakhar had a knife. She identified the revolver and the knife as Ex. P- 3 and P-9.

17. In her cross-examination, Taruni Gael (PW[9]) has stated that the stair case was inside the house and near the drawing room. There were t.wo bedrooms -on the second floor and-kitchen was situated on the ground floor. During her cross-examination, PW[9] confronted with her statement under section 161 Cr.P.c. Ex. PW91 DA. In her statement Ex. PW9/DA she had not mentioned _ that she had heard cries of her father in law and peeped down and heard cries of some other persons. She had not specifically mentioned that Ashu Goel and her children knocked at the door again and again and 'that she saw tall and hc;althy erl.A. 132312013 --- -_._------------_._persons or one person was pointing towards Ashu and her children and that appellants entered into her room and searched the almirah of her husband or she had peeped down subsequently or that the assailants had fled from the back door or that she had heard cries and noise from outside the house, that assailants had been caught and beaten or there were two wooden almirahs in the bedroom and two steel almirahs in the store room or her husband's almirah was in store room or one almirah in the bedroom was searched by the person holding the lmife and the other person holding the revolver searched the almirah of her husband lying in the store room or three almirahs which were searched were having keys therein or fOUlih almirah was locked. She reiterated that the appellants remained in the room for 10 minutes. Children of Ashu Goel were • aged 7· and 10 years of age and her child was three and a half months old. Wheri the room of her door was closed, she could not see movements in the remainiIig portion ofthe house. When the accused left the room, the door of her room had remained closed for 8-10 minutes. When she came down, she came to know that the appellants had run away and her relatives, neighbours and others had gathered there. She did not remember whether the police had prepared site plan of her room. Deepak Gael, her husband and some relatives were present in the room. Herhusband had a shop at Kashmere Gate and he came to the house after 25-30 minutes. Investigation in the drawing room on the ground floor ·vvas on. Their house is constructed in an area of 125 sq. yds and was the fourth house from the end of the lane. The back lane of was about 10ft. widear~d there was a road in front of the house and there was a park. She had seen the appellants lying on the ground near the park which was at the distance of half a. kilometer from their house and they remained there for 2-3 minutes. The appellants were lyui.g on the ground and they were beaten up by pUblic. Her hu~band and Ashu Goel had gone with her but Deepak Goel had not accompanied them. She did not Imow whether Deepak Goel was present in the \ house. Deepak Goel had gone to the hospital but she did not lmow, whether he had taken Giriraj Kishore to the hospital. She confessed that she was in a perplexed condition at that time. She denied the suggestion that she had identified the appellants at the instance of police. On further examination on behalf of Nitin Nagpal, she gave her telephone number and that of Deepak Goel tit and stated that Deepak Goel was the first person who arrived at the house after her call. Her statement was recorded by the police on 24th June, 2005. On 23 rd June, 2005, police remained in their house till 9.00 PM. She denied the suggestion that no incident on second floor took place on 23rd June, 2005. She identified photographs (Ex. PW3/17 and PW3/5) as photographs of her room at the second floor and one wooden almirah was visible in photograph Ex. PW3117 but no steel almirah could be Seen in the said photograph (Ex. PW3117). Steel almirah in the room on the first floor which was in possession of Ashu Goel was visible in the photograph Ex. PE3/6. She deposed that almirah shown in Ex. P3/5 was searchedand jewellery had come into the hands of the appellants. Before coming to her room, the appellants had already visited Crl. A. 132312013 Page240f68 ------------ --.~-. room of Ashu Goel and she came to lmow later on that jewellery was taken from her room as well. She did not know where the appellants had left the jewellery before they escaped but later on she came to know that jewellery was left on the ground floor though she did not lmow the exact place. She did not lmow whether the jewellery was shown to the police or the appellants had made enquiry gbout missing jewellery and that she might not have informed the police about the missing jewellery. Her statement (Ex. PW9/DA) was recorded on 24th June, 2005 between 11.00 AM to 12.00 Noon but she did 'not know the name and designation of the police officer whorecorded her statement. Contentions/Submissions and Discussions

18. We would now like to examine the contentions raised by the learned counsel appearing for Nitin Nagpal and Rambir Jhakhar on'the testimony of the police officerS. and Taruni Goel (PW[9]), Shashi God (PW10), Ashu Goel (PW12), SanJ~y Mitta[1] (PW15) and Deepak Goel (PW17). We have also referred to other incriminating evidence against the two appellants Nitin Nagpal and Rambir Jllakhar. (1) Contention of the petitioner is that there was delay in recording the FIR and thete was interpolation and change in the FIR for ulterior motives and sending the copy ofthe same to the concerned Metropolitan Magistrate, is without merit. The incidence in question took place between 12 n0011 till 12.45/01.00 PM.. This is clear from the MLC of the police officers as well as that of the appellants wherein the time of admission is recorded as

01.00 PM (see Ex. PW8/A to PW8/G). PW[1] being injured was also taken to the hospital and upon his statement ruld<.a was recorded and dispatched at 5.00 PM resulting in registration of the FIR at 5.15 PM. The first Investigating Officer(PW38) ACP Prakash Khera had gone with the injured police officers to the hospital and then returned to,the spot. This necessarily consumed time. We do not thinkthat there was delay as such in recording of the FIR. Moreover, the appellants Nitin Nagpal and Rambir lakhar were arrested at the spoton the place of occurrence itself. They were taken to the hospital at 1.00 PM and their MLCs (Ex. PW8/G and PW8/B) speak for themselv~s on the said aspect. These MLCs corroborate the statements of the eye-witnesses who were not one in number but the three ladies of the house namely Taruni Goel (PW[9]), Shashi Goel (PW10) and Ashu Goel (PW12) and the injured police officers namely SI Barish Chand (PW28), BC Dharampal (PW16), HC. Ravinder (PW20) and Insp. Kharak Singh (PW[1]). The Supreme Court has held that delay in recording of the FIR denies and affects advantage of spontaneity and raises suspicion of introduction of coloured vision, exaggerated action 'or concocted story in Jai Prakash Singh v. The State bfBihar and Anr~ Etc (2012) 4 sec 379, but the applicability of the said decision is clearly of the mark in the present case. In the present case,,it CrL A.' 1323/2013 --_._-_._..-----_. --.---'" cannot be said that there was delay in lodging of the FIR or there was deliberation and afterthought. Decisions ofthe Supreme Court, therefore, in Thulia [(ali vs. State of Tamil Nadu AIR 1973 SC 501; Ishwar Singh & Ors. 'Vs. State of u.P. AIR 1976 SC 2423; Rajeevan & Anr. Vs. State of Kerala 2003 Crl.L. J. 1572 (SC); Arjun Marik & Ors. Vs. State of Bihar JT 1994(2) SC 627 and Raj Kumar & Anr. Vs. State (Delhi) 1990(2) Recent Criminal Reports 554 have no releyance in this particular case and thus are not being separately considered. The question of delay,when in fact there was delay and where the delay was possibly to 1" ' cover gp the facts or create doubts, depends upon factual matrix of the' case. No strait jacket formula can be applied. _ (2)Similarly, the,contention that there was delay in dispatch and serving copy of the FIR on the Metropolitan Magistrate is devoid of merit. State

1. ofA.P. v. S.Rayappa & Ors.(2006) Cri.L.J. 1616 andllfahmood & AnI'. ' ti v.State of u.P. (2008) Cri.L.J. 696 highlights this point. HC Narender b Singh (PW14) has deposed that after recording of the FIR copies of the r L same were sent to the concerned Metropolitan Magistrate and to higher police officers through special messenger for information and action. In the cross-examination, he has stated that Const. Ranjit Singh took the e special report for Metropolitan Magistrate and senior officers but when confronted accepted that as per DD No. 62B dated 23rd June, 2005, Const. Ranjit had left at 11.45 PM and had returned as per DD No. 70B at 3.20 Cr!. A. 132312013 Page 27 of68 ----i-----------.---..,,,.".._.. AM. Keeping in view the fact that the FIR was registered at 5.15 PM, we do not think that there is any abnormal delay in sending the copy of the same or that the FIR was recorded belatedly. (3) It was argued that the FIR now produced before the court was different from the FIR originally recorded and in support thereof reference was made to Ex. PW38/C i.e. application for autopsy which records that dead body was received in mortuary at 4.00 PM on 23rd June, 2005. The said application was accompanied by brief statement of facts (Ex. PW38/D) which records and mentions the name of -appellants Nitin Nagpal and Rambir Jhakhar and the fact that they were caught at the spot. Itis mentioned that Nitin Nagpal had revolver.32 MK I - SAF Kanpur 2001, D-ll01 in his hand and five empty cartridge~ were found in the drum and 10 live cartridges were found in a pouch. From the statement of Deepak Goel (PW17), son of the deceased Giriraj Kishore, it is clear that their family ~anted cremation to take place on 23rd June, 2005 itself. The body was shifted to the mortuary after theMLC (Ex. PW8/A) was recorded at 12.45 PM. The MLC mentions that Giriraj Kishore was brought dead to the ho·spital. Dr. L.C. Gupta (PW27) who had conducted the post mortem has deposed that the same was conducted between 6.00. PM to 8.00 PM on 23 rd June, 2005. The FIR in question was registered at

5.15 PM. Thus, there was time gap of 45 minutes between registration of the FIR and. beginning of the post mortem. Contention that the..,----- ----------...---------._----. ---'"--'._" --.-....__.._-----.----',------ Investigatin:g Officer (PW38) had received copy of the FIR only at 6.15 PM, as deposed, does not dent the prosecution's case or,the post mortem report (Ex: PW27/A). The post mortem report specifically mentions the, time as between 6.00 to 8.00 PM and is more accurate m\d precise. Statement of the Investigating Officer is based upon recollection and is approximate. Ex. PW381D i.e. statement of brief facts given to the,I Doctor does not show that the ruld<.a was dispatched from the police station at 6.15 PM.,(4) The contention that there was de'la:y in recording of the statements of PW[9], PWIO, PW12 and PWl[7] is without nierit. Their statements as per the Investigating Officer and, the dates mentioned on their statements " recorded under Section 161 Cr.P.C.,is 24th June, 2005. The said witnesses had lost their father in lawlhusband who was brutally murdered in his own house. Dead body of Giriraj Kishore was subjected to post mortem and then cremation. The witnesses have adlnitted that they were perplexed, horrified and shaken by the occurrence. Ashu Goel (PW12) had young children between 7 and 12 years. The said children had also seen the occurrence and seen Giriraj Kishore being killed. Subsequently outsideof the house firing had taken place and four police officers were seriously injured. Taruni Goel (PW[9]) had a small- daughter aged about J and a half years, In these circumstances, it is understandable and natural that the witnesses would have 'taken some time to compose themselves an.d narrate facts to the police. We do not think there is any abnormal or unrealistic delay and the said witnesses' had any ground to falsely implicate the appellants Nitin Nagpal and Rambir Ihakhar. Deepak Goel's (PW17) statement under Section 161 Cr.P.C. as per the prosecution was recorded on 23 rd June, 2005. In these circumstances, decision of the Supreme C0U11 in G.B. Patel vs. State of Maharashtra AIR 1979 SC 135 has no application. Delay in examination of witnesses cannot in all cases be fatal as facets like reason and when the delay was explained, length of the delay etc. have to be taken into consideration. It has to be ascertaii1ed whether the delay is indicatory that the witnesses has been planted and was not natural. The conduct and whether the witness was frightened and his behavior are relevant circumstances. Similar point was reiterated in Abuthagir & Ors. v. State Rep. By Inspector ofPolice, Madurai(2009) Cri. L.J. 3987. We do not think that there is "delay" in recording of statements of material witnesses and that I their statements under Section 161 Cr.P.c. were recorded on 24 th Jtme, 2005, does hot cast any doubt or suspicion on the credibility of the prosecution version. In Yanob Sheikh alia Gagu vs. State of PVest Bengal (2013) 6 SCC 428, it has been pointed out that it is the quality and not the quantity of prosecution evidence that determines whether an accused is guilty or otherwise. The cou11 is primarily concerned whether the evidence brought on record is reliable, trustw0l1hy and of definite Crl. A. 1323/2013 Page 30 of68 ---_.._.._-_._------_._evidentiary value. In case any witness has not deposed, it has to be shown that prejudice was caused because of nOl1-examinatiol1of the said witness.(See also Lahu J{amlakar Pati[ and Anr. Vs. State of Maharashtra (2013)6 SCC 417). (5)It has been highlighted that Taruni Goel (PW[9]) and Ashu Goel(PW12) have spoken in detail ab0ut the appellants Nitin Nagpal and Rambir I Jhakhar entering their rooms, searching almirahs and robbing them of their jewellery; The learned counsel for the appellants is correct that Taruni Goel (PW[9]), Shashi Goel (PW10), Ashu Goel (PW12) and Deepak, qoel (PW17) in their statements under Section 161 Cr.P.c. have not mentioned about the robbery, searching of their almirahs etc. This discrepancy and -difference in cOUli testimony and the statement of these witnesses under Section 161 Cr.P.C., does not compel us to reject the testimonies and disbelieve that Nitin Nagpal and Rambir Jhakhar had never gained entry after ringing the bell and the subsequent firing and injuries find death of Giriraj Kishore. From the statement of witnesses of ACP Prakash Khera (PW38), it is clear that the entire police team had takel! the i.njured' to the hospital and only two police officers narnely Const. Mithlesh and Raj Kumar were left at the spot. Encounter between the police and the appellants Nitin Nagpal and Rambir Jhakhar had taken place outside on the street, near the park. The ~rim:e team, as per the testimony of SI Rajesh Kumar (PW[7]), had reached the spot at 2.30 PM Crl. A. 1323/2013 Page 3] of 68. " ' - - - - - - - · and had remained there till 5.00 PM. Family members and relatives of the said witnesses had, therefore, enough time to gather the jewellery and secure it. Reluctance on the part of the family members and witnesses to part with the jewellery and their reluctance to treat jewellery as case property is understandable, though emmot be appreciated. We will ignore the said part of their statement. Nevertheless, this cannot be a ground to hold that Taruni Goel (PW[9]), Shashi Goel (PW10) and Ashu Goel (PW12) were not present in the house and had not seen the occurrence on 23rd June, 2005 at about 12.00 noon onwards. Their presence in ·the house is natural and nOlmal. This also·takes care of the argument and. contention of the appellants Nitin Nagpal and Rambir lhakhar that photographs taken by the crime team i.e. Ct. Chunni Lal (PW[3]) do not reflect or show almirahs were ransacked or searched. (6)The contention that there were 5-6 glasses on the table as visible in the photographs and the statement of Dr. L.C. Gupta (PW27) that there wen~ three weapons of offence show and prove that there were more than two assailants who had entered the house has to be rejected. The meritless contention ignores the fact that other persons would have had water. Statement of Dr. L.C. Gupta (PW27) regarding possibility of three weapons, is being read beyond what the witness wanted to communicate. One of the injuries on Giriraj Kishore was caused by a blunt object/weapon, as per the post mOliem report(Ex. PW271A). Giriraj -.-----....----~---------------- Kishore had fallen down and might have injured himself in the said process. He certainly had bullet wounds and had suffered a wound which was caused by a sharp edged weapon.Eye-witnesses Shashi Goel (PWIO) and Ashu Goel (PW'~2) have deposed that Giriraj Kishore was fired upon by revolver'by Nitin Nagpal and was hit Oil his head by knife by Rambir. Thakhar. This is forroborated by.the medical evidence i.e. the post mortem report (Ex. PW27!A). It cmmot be said that the medical evidence cmmot be reconciled with the ocular statements of the eye-witnesses. They are reconcilable. The post mortem report does not contradict the ocular statements but corroborates and affirms the ocular statements of· PW10 and PW12. It affirms statement of other witnesses that Rambir Jhakhar had a knife and Nitin. Nagpal had a revolver with him. Even otherwise, ocular statements in the present case has to be given precedence and acceptance over the medical evidence. (7) There is no inconsistency between the medical offence and the ocular evidence and it cannot be said that medical evidence is such that it completely negates the ocular testimonies and creates doubt about the statements of the eye-witnesses as to whether they were present and had seen the occurrence and the perpetrators. Decisions in Ram Narain & Ors. Vs. State of Punjab AIR 1975 SC 1727, Purshottam & Anr. v.~. State of MP. AIR 1980 SC 1873, 11fohar Singh & Ors. Vs. State of ---------~ ------- - - ------- Punjab AIR 1981 SC 1578 and Kapildeo Mandal& Ors. Vs. State of Bihar 2008 Crl.L.J. 730 (SC) are, therefore, not applicable. (8)It is incorrect to state that the post mortem report (PW27A) does not tally with the number of injuries given by the eye-witnesses. The post mortem report states that injury numbers A, Band C and B-O[1] and the injury on the left; side of the neck were caused by fire ann projectile' weapon. Injury No. G was caused by sharp edged weapon and injury No: D, E and F which were an abrasion wound,three lacerated wound on the right eye-brow, sub scalp to skin deep and one lacerated wound on the right side forehead were caused by blunt edged object/weapon. Referring to the size of injury No. A, Band C it was submitted that it indicates that more than one fire arm were used. The said contention is merely an assumption. There were entry wound, A, Band C,' of oval or oval to circular shape or size of 0.[5] cm X 0.[6] cm or 0.[4] cm x 0.[5] cm. B-1 was an exit wound protruding outside and a track'communicating with wound B, This shows three bullets had entered the body ofthe deceased. (9) PW27 has not stated and it was not stated to him that projectile wounds were caused by two separate weapons. One charged bullet was recovered from the underwear just lodged and entangled in the subcutaneous tissues below the left side il1guinal region and a track connected with the wound No. A. The bullet was preserved and handed over to the Investigating Officer. The forensic examination of the said bullet which was given Crl. A. 132312013 Page 34 of68 identification mark Ex. 3A-l was undertakien. On.,.' mIcroscopIC examination, Ex. 3A-l was found having characteristic rifling marks present on the test fired bullet Ex. 2A11 to 2Al[3] (see Ex. PW35/A). The revolver' Ex. P[3] was seized from the spot. A photocopy of the arms licerice of Nitin Nagpal was also recovered and the same has marked Ex. PW38/B. Nitin Nagpal was the registered holder of the arms licence as per the records in the District Magistrate Rohtak, as deposed by the Arms. i Licence Clerk Devender Singh (PW30). A photocopy of register Ex. PW38/A records/mentions that the Arms licence was issued to the appellant Nitin Nagpal. As recorded above, a number of fired cartridges and live cartridges in the pouch were also recovered from the spot. These cartridges could be fired from the revolver in question. (l0) Testimony of Taruni Goel (PW[9]) vyas challenged on the ground that she was upstairs on the second floor and could not have seen the actual occurrence i.e. the firing or the knife 'blows. This is correct. Taruni Goel (PW[9]) had, h0\'.'ever, deposed that she had heard firing and commotion i.e. cries and then Ashu Goel (PW12) along with Nitin Nagpal and Rambir Jhakhar had come to her room. As she had locked the room, the appellants warned her that PW12 and her children would be harmed, therefore, she opened the door and had the occasion to see the appellants. There is no reason for us to disbelieve the said assertion, The motive and purpose was to commit robbery and steal valuables. Th~ - -. -_...._--------...-... -.. fact that "Ashu Goel (PW12) did not depose about the second door bell etc. is immaterial as it is a matter of perception and recollection. Emotions, turmoil,. anxiety and trepidation caused and suffered is not difficult to imagine. The fact of the matter is that police reached the spot during the occurrence itself. PW[9] had stated that she had made a phone call to her brother in law who informed others is corroborated. Police were almost instantaneously informed about the occurrence. Statement of Sanjay Mittal (PWlS) that he reached the spot and had taken Giriraj Kishore to the hospital is established by MLC Ex. PW8!A. Possibly persons in the street had also heard sound of bullet firing and had rung the door bell. They had got suspicious, when the door was not opened. (11) Contention relating to recovery of the gift pack from· the park etc. IS also without merit. It is clear from the deposition of Taruni Goel (PW[9]), Shashi Goel (PWI0), Ashu Goel (PWI[2]), Sanjay Mittal (PWlS) and Deepak Goel (PW17) that relatives and friends had gathered. This necessarily to some' extent disturbs the scene and place of crime. ACP Praksh Khera (PW38) had to leave the spot along with four seriously injured police officers who were taken to the hospital. Crime scene outside the house was also to be guarded. The occurrence as described by the witnesses was chilling,_ extremely violent and gruesome. Solace was· necessary and emotions had to be pacified. PW-I0 has deposed that they had thrown the gift pack in front of the park. Even if we disbelieve the,Crl. A.. 1323!2013 ' recovery of the gifi pack noticing the fact that Anoop Pandit (PW[2]) who was working as Manager in 2005 in Vishal Mega Marg, IY1athura Road, had refused to identify the gifL pack and the appellants, it does not materially affect the pro~ecution version-' or the depositions of the eyewitnesses. (12) The contention of Shashi Goel (PW10) was not present in drawing rooin in view of her statement ( Ex. PWIODA) recorded under Section 161 Cr.P.C. is devoid of force. She had stated that she was present in the drawing room along with her husband. In her deposition she has stated that she was present in the drawing room with the husband when the occunence had taken place. Her husband, the deceased, had opened the door has been clearly deposed to by PW10. It would not have taken much time for her reach the drawing room from the bedroom. Similarly. the contention that PW12 had made improvement by changing. time from

12.20 as recorded in her statement under Section 161. (Ex. PW12/DA) to

12.00 noon is inconsequential. The time difference is small and stIch difference is normal as time mentionedl recollected is approximate and not exact. (13) Deepak(PW34) is a taxi driver who had driven the appellant Nitish Nagpal in a taxi from Saini Taxi Stand, Punjabi Bagh, Central Market to pick the other appellant Rambir Jhakhar from Agrasen Hospital and then dropped them at Ashok Vihar. He has deposed that after dropping the - - - - - ' - - - _....._-...-- _..._------. ---------------_.._------_..-._-two appellants he had heard noise from the kothi where the appellants had gone (thief thief). On hearing the said noise, he went back to Saini Taxi Stand, Punjabi Bagh. He identified the two appellants. (14) The contention of the appellants that they have been falsely implicated in the present case is completely meritless. Appellants Nitin Nagpal and Rambir Jhakhar'spresence at spot is proved beyond doubt. Revolver (Ex. P[3])which was used for firing at GiriJ:aj Kishore and then on the policemen belonged to appellant Nitin Nagpal. His presence at the spot is proved from the testimony of the eye-witnesses, Deepak Goel (PW34) as well as MLCs ofthe appellants Ex. PW8/B and PW8/G. (15) The contention that MLC of Giriraj Kishore (Ex. PW81A) was prepared subsequently is inconect. Giriraj Kishore was first to be brought to the hospital and was taken there by Sanjay JY[ittal (PW15). The said MLC is timed 12.45 PM, whereas the MLCs of the police officers who were injured and were admitted and the appellants Nitin Nagpal and RanvIT Jhakhar are timed 1.00 PM. The serial numbers mentioned on the MLC disprove and negate the said allegation as they are inseriatim. (16) It was submitted that Test Identification Parade was required to be held and court identification by Taruni Goel (PW[9]), Shashi Goel (PWIO) and Ashu Goel (PW12) should be disbelieved, is a feeble attempt to challenge the identification. Judgments relied upon by counsel for the "-.-.------.-..---..-.---~.-----.---- ----_..- -- _. --_....._------_..- ~~appellal.'lts,/(anan vs. State of Kerala AIR 1979 SC 1127; Mohan Lal Ganga Ram Ghelani vi State ofMaharashtra AIR 1982 SC 839; State (Delhi Administration) vs. v.c. Shukla AIR 1980 SC 1382 and others, clearly are not applicable as in the present case. The two appellants Nitin Nagpal and Rambir Ihakhar were detained at the spot itself by the police. Thereafter they were taken to the hospital. There cam10t be any doubt or debate on their identity as is sought to be made out. TIP is resorted to and is a part of investigation. It ensures that the allegedunlmown culprits, ' f·' detained during investigation are the real culprits who were seen by the eye witnesses at the crime scene. In the present case, murder of Giriraj Kishore and then the firing in the street outside the house, in which four. e police officers got injured was in seriatim and continuation. The two' appellants ran out and were chased. The appellants were challenged by. the police who had reached the spot, while the two appellants were still inside house No. E-174 and thereafter were caught at the spot. This dispels any dispute about the identity of the perpetrators who had' committed the murder of Giriraj Kishore. Moreover PW[9] and PW12 have deposed that they had gone outside and had seen the two appellants aft~r they were detained. There is no reason and cause why their testimonies should not be accepted. These two witnesses are independent and unbiased and being family members of the deceased had only one -------~------------interest i.e. to ensure that perpetrators, whoever they be, are punished. \lve reject the contention that the said witnesses should not be relied upon. (17) Similarly, we also reject the contention that statement of Deepak (PW34) should not be accepted as he' did not produce any written document that he was working as a driver at the taxi stand. There is 110 such requirement. The contention ignores practical reality. Deepak· (PW34) had deposed that he was with the two appellants for considerable time and had travelled with them throughout till he dropped them at Ashok Vihar. The factum that Deepak (PW34) was taken to the Police Station and made to sit there from morning till night as deposed by him, __, proves that he is a truthful witness who did not conceal any fact. It is apparent that the police wanted to rule out possibility of his involvement. However, this does not mean his testimony should be ignored. We do not think, judgment in the case of Ajay Singh & Ors. Vs. State of u.P. 1990(1) Crimes 517 lays down any proposition to the contrary. We.. further note that PW34 was never booked as a co-accused and therefore, obserVations in State of Maharashtra vs. Sukhdeo Singh & Anr. AIR 1992 SC 2100, are not relevant. (18) Submission that the Investigating Officer (PW38) had deposed that he did not Imow how many weapons were used in the crime is read, expc;,nded and dealt out of context. He had voluntarily subsequently deposed that the deceased Giriraj Kishore had suffered bullet injuries as Crl. A. 1323/2013 Page 40 of68 ---_._-' perwounds mentioned in the post-mortem. PW38's further deposition that he did not remember whether he had read the post-mortem report shows that the said witness had got confused. His failure to remember the said aspect, does not impel us to disregard his entire deposition. The suggestion giyen about three weapons theory to PW-38 on the basis of post-moiiem report is not correct. Post-mortem report (Exhibit PW271A) is clear on two aspects; (i) there were bullet wounds and (ii) there was an injury caused by a sharp-edged weapon. The other injuries were caused by blunt object/weapon. The post-mortem report never opined that the third set of injuries at point D, E and F could have.been ol}.ly caused by a blunt weapon and not by a blunt object. PW-38 has stated that as perthe. eye witnesses there was a scuffle and the deceased had fallen down. (19) The contention that there is difference between the injuries recorded in the post-mortem report (Exhibit PW-27/A) and the MLC of the deceased Exhibit 8/A, which was recorded at Sunderlal Jain Hospital, is devoid of any force. The MLC records s.ix bullet wounds. PW-27 in his deposition has mentioned that injury Nos. A, B,C and D and injury I on the left side of the neck were caused by firearm projectile weapon. The post-mortem report is far more detailed as the body was subjected to opening and dissection. Similarly, the contention that the bullet found in. the underwear was planted as it is not mentioned in the MLC (Exhibit 81A) as farcical and far-fetched. Giriraj Kishore was brought dead to the Cri. A.1323/2013 Page 41 of68 - - -.._----- -----_._---,-----. ----..--.-~---..... -----_._---_.._---hospital and the MLC (Exhibit PW-8/A) records the said factum and position. The MLC does not record that the doctors had not removed the underwear and noticed the bullet, which had got stuck. The body was sent to the mortuary at 4 P.M. on the same day. The underwear worn by the deceased was still on the body. Submission that the recovered bullet was not deformed and therefore must have been fired on a foam or a soft surface is again misconceived. Giriraj Kishore was taken to the hospital at 12.45 P.M. when his MLC was prepared and then his body was shifted to the mortuary at 4 P.M. His post-mortem was conducted between 6 to 8 P.M. The revolver was left at the spot, i.e., street in front ofhouse No. E- 174 and was seized by the crime team, which had remained at the spot between 2.30 to 5 P.M. Looking at the fast pace at which the events had occurred, we do not think that there is any possibility of planting a bullet in the underwear of the deceased after firing the same on a foam.. We also record that Investigating Officer (PW38) had remained 111 the hospital with the injured police officers for considerable time. ~;.. (20) The, appellants have relied upon testimony of Dr. R.K. Sharma (DW-1), who had stated that there was a possibility that the bullet was planted. The said witness had deposed only on the basis of the postmortem report or possibly after reading the evidence of PW-27. He was producEid as a defence witness and in fact the only defence witness. The contention of the appellants that the entangled bullet found in the Page 42 of68 ---- - ------ ------------------ --e· underwear had 1'10 corresponding injury, supports the said position. The submission of the appellants that PW-27 had collated wound No. A with the said bullet is not bome oU:t from the records. Even if the submission is correct, it could be best lapse or error on the part ofPW-27 but will not affect the prosecution version or even the post-mortem report that the deceased had died because of bullet wounds. Contention that X ray plates mentioned in the post-mortem report is not placed on record and, therefore, the entire post-mortem should be disbelieved, is again farfetched and meritless. We do not think his testimony furthers or promotes the case of the appellants. We. also reject the contention that the prosecution had changed the type ofwounds suffered by the 'deceased. (21) Referring to statement of PW-22 Mithlesh, it was submitted that bullet was not recovered at the time of post-mortem. PW-22 had specifically stated that the led recovered from the body was given to him. PW-22 had stated that he was handed over three sealed parcels, which were produced before the Investigating Officer. Investigating Officer in his testimony has stated that Constable Mithlesh had handed over led recovered fl.-om the body. Led can mean and include the bullet also. PW- 38 had further deposed that he had recorded statement of Mithlesh. It was mentioned therein that two bullets recovered from the body were given. We reject, therefore, the contention of the appellant that Exhibit 3AJI was not recovered from the body of the deceased.. Cr!. A. 1323/2013 Page 43 of68._----------------------- (22) On the question of knife, we have deposition of the eye witnesses PW-10 and PW-12 and the statement of the police officers regarding I recovery. The knife may not have been sent to the FSL for examination, as no blood stains could be found thereon. This is no ground to disbelieve that knife was not used as deposed by the eye witnesses. The deposition is affirmed in view of the injuries noticed and recorded in the post-mOliem report (Exhibit PW-27/A) prepared by Dr. L.C. Gupta (PW- 27).There are several reasons why blood could not be identified or seen on the lmife including the fact that Rambir Jhakhar may have wiped the lmife or cleaned it. (23) Reference was made to the post mortem report, Ex.PW27/A wherein it was recorded that rigor mortis was present all over the body and the stomach was empty, but the rectum was full of stool. Left side lower first and second molar teeth was filled with meal. Thus, it appears that the deceased had notbrushed his teeth and had 110t passed stool in the morning. We do not wlderstand how the said observations of Dr. L.e. Gupta (PW-27) can create doubt about the time of the OCCUlTence. PW- 27 in clear and categorical terms has deposed about" the cause of death and the time of death as six hours before the post mortem. He has stated that rigor mortis starts developing within 2-3 hours in general and takes up to 12 hours to appear fully. It was summer time. He categorically asserted not once and severally that time of death, was six hours prior to ------.-.. ~- -.-~-.. ---..~.... -.---.-----.-.----------- -.-..__.._---the time of the post mortem. We do not think that in view of the statement ofPW-27 as well as the ocular witnesses i.e. the police officers and PW- 9, PW-10, and PW:-12, there can be any doubt or debate about the time of occurrence, death etc. (24) The fact that the two children aged between 5 to 10 years were neither cited nor produced as witnesses is understandable as adult melpbers of the family, who were present, have deposed. Except for stating that the two children were not cited or produced, it is not indicated or stated how and in what manner it had affected the statement of PW-9, PW-10 and PW-12. Reluctance to cite the,children as witnesses is understandable as they had seen and suffered trauma and seen violence. To recapitulate the occurrence in the court, to subject them to crossexamination and put them face to face with the pelpetrators apparently was not acceptable and had prevailed.There were several witnesses to the oCcurrence who have deposed. In view of the facts of the present case" the fact that children did not depose cannot be treated as a negative factor to discard the statement of the eye-witnesses. Reliance placed upon Rampadarath Gami & Another Vs. State of NCT of Delhi, 2012 (3) C.C. Cases (HC) 61 and Rai Sandeep @ Deepu Vs. State of NCT of Delhi, AIR 2012 SC 3157 is misconceived. It is not the plurality or number of witnesses which matters, but the evidence of witnesses Crl. A. 1323/2013 Page 45 of68 -----------------..._------produced before the Court an.d whether their deposition are credible, ~ truthful and aspiring confidence. (see sub para 4 above) (25) It is correct that the call details of the mobile phone belonging to Taruni Goel and Deepak Goel have not been produced. To say that this goes to the root of the matter is incorrect and farfetched. There is oral deposition by. Taruni Goel to the said effect and Deepak Goel also deposed how he came to lmow about the occurrence and reached the spot. These are lapses on the part of the investigation but unless there is any indication that prejudice has been caused or evidence has been withheld to probably falsely implicate the persons, who have been booked/chargesheeted, such contentions are to be rejected. We also reject the said contention in the present case. Call records would have corroborated their statement but we do not think that corroboration was required. (26) Reference was made to the PCR Form, Ex.PW-21/C as per which the PCR van had reached the spot at 12.34 hours and at 12.35 hours, information was given that bullets were being fired and IC PCR van had received bullet injury. It was also recorded that at 12.45 injured IC van had been taken to Sunder Lal Jain Hospital and he was lying unconscious on a stretcher. Ex.PW21/C is a bit confusing. Information as per the said form was recorded at 12.27, but there was also a message which was transmitted at 12.25 and it records time of arrival of PCR van as 12.26 as well qS 12.34. Apparently, two PCR vans i.e. T-13 and T-33 had reached the spot. It is also recorded that at 12.53, SHO along with force, ACP and DCP were at the spot. At 12.49 another entry with regard to T-13 was recorded that they were at Sunder Lal Jain Hospital. We do not think that the said form shows that the story of firing and the bullet injuries caused to the police officers was concocted. (27) In the written submissions it is contended that He Dharam Pal, the gunman was having SAF gun and there was also a driver, but they never deposed. It is alleged that IC PCR van had a service revolver and had fired from his revolver, but this fact has been suppressed. We do not find any merit in the said contentions. These are mere presumptions and there is no evidence and material to substantiate the said contentions./psi dixit contentions have to be rejected. (28) Another contention or submission raised was that the injuries received by IC ofPCR van at 12.35 was not disputed, but the dispute was whether information was received in the police station after 12.35 p.m. and whether PW-1 along with PW-4 could have reached the spot and seen the IC PCR van being fired at. As already noticed above, Ex.PW-21Ie also mentions entries at 12.25 and 12.27 p.m. Apparently, the..two appellants who were in E-174, Ashok Vihar, realizing that persons in the neighborhood and police had got activated, tried to flee and run away. When they were confronted by the police, appellant-Nitin Nagpal fired. Information was flashed and PW-I and other police officers immediately ~ ----------------------_..._.._-- ~-.-reached the spot. The statement that the two appellants had made an exit from the back lane and nobody could have ascertained or known, who were the culprits again belies and is contraryto the evidence on record. In such situations of panic, behavior and actions of the person, are a good indicator of who is the culprit. In any case, in the present case the appellant-NitinNagpal had fired from his revolver. He was identified by PW-9, PW-IO and PW-12 and identified by the police officers. (29) The contention that the encounter between the police officers and the two appellants is make belief and sham and,therefore, should be rejected, is without merit. In the written submissions, it is projected that the said encounter theory has been set up to procure rewards and awards. This is not reflected fi-om the ocular and documentary evidence. Four police officers had suffered grievous injuries as' is appatept from the MLCs Exhibit PW-6/A, 81C, 81D, 81E and 8/F. Exhibit PW-6/A MLC of Haresh dated 2 nd July, 2005 was issued by the Medical Officer, All India Institute of Medical Sciences. It refers to alleged history of gun shot wounds on the chest on 26 th March, 2005 and the fact that Harish Chander PW-28 had developed breathing problem and was put on the ventilator and incubated. His chest was drained. The MLCs speak of injuries by way of gunshot wounds and there is no reason or ground to disbelieve the said MLCs. There is no evidence what so ever to show or indicate fake encounters. Statements of the police officers and the public ---.---..------------------ ~- ------------~------._-witness i.e. family members of Giriraj Kishore, are to the contrary. The present case cannot be put in the category of fake encounters as submitted. (30) Contention that the police did not collect danda, stone, bricks etc. form the spot, which were used by the public and cite and produce public;, witnesses, who had beaten the two appellants has no merit. The statement of PW-1 that he had asked the driver Paramjit to run the car over the appellants reflects the precarious and parlous situation which t,he police officers were confronted with and the effect of firing by. the appellant Nitin Nagpal and resultant injuries. SI Barish Chander who had appeared as PW~28, has deposed that he had taken out his service revolver and had fired. He was subsequently hit on his chest belm;v his right shoulder and above the abdomen and thereupon he became unconscious. Whether the Investigating Officer P'¥-38 remembered whether he had seized the used bullet etc. and whether he had collected the arms and ammunitions register dated 26th May, 2008 reflects on the jnv'estigation lapse. yve cannot forget when occurrence of this nature is taking place,very often compliance of technical formalities becomes secondary and unimportant. Emphasis is on swift action to reach the place of occurrence and ensure that the culprits do not cause fU1ih~r darr.agelinjuries and are caught. Discrepancies or inadequacies can, therefore, arise in the records, which are required to be maintained and - --------------------- --- --. _.--._-.--_.._-.-----written contelnporaneously. Errors or Inistakes, therefore, the records can be explained. We should not ignore such errors but at the same time we cannot on this basis alone, reject oral testimonies of not one but several witnesses, who are fully credible, truthful and corroborating and in U111son. (31) Reference was made to statement of Ct. MithleshKumar (PW 22) that he had reached the place of occunence after the injured had been taken to the hospital. It is stated by HC Ravinder (PW20) and HC Dharam (PW16) Constable Dharampal (PW-16) - were with him. Constable Ravinder (PW20) and Dharampal (PW16) should be disbelieved. Both PW16 and PW20 had received serious injuries and were shot at. Their presence and participation is also deposed to and affirmed by PW-l Inspector Kharak Singh, PW-38 ACP Khera and PW-4 Head Constable Paramjit Singh. Medical evidence also supports the said position. Read In this context, statement of Constable Mithlesh Kumar,, _ driver of Tata 407 that when he reached the spot when the injured had already been removed to the hospital cannot mean that Constable -- Ravinder (PW20) and Constable Dharampal (PW16) had not seen the occurrence. It is probable that Constable Misthlesh (PW[2],2) being the driver of the truck had stayed back and had not moved ahead. The fact place of recovery of the cmiridge of the bullet fire~ by Dharampal (PW16) is not mentioned in the site plan PW-38/B, does not mean that Crl. A. 1323/2013 Page 50 of68 -----------------the statement ofPW16 has to be disregarded or is untrustworthy. This can happen and the cmiridge may not have been located. SI Harish Chander (PW28) has stated that some bullets were recovered from his body but one bullet was lodged towards the back side of the heart. PW'28 has stated that he was adInitted twice to the hospital, once at Sunder Lal Jain Hospital and then again in AIIMS Hospital. Leds which were recovered from the body were not, seized and never became the case propeliy. However, it will be incorrect to accept the argument that he was hurt by a police bullet. PW-28 SI Harish Chander was the first one to reach the spot. He had reached the place of occurrence within two minutes after rete~ving call' at about 12.30 P.M. or earlier. On finding that the Hont gate was locked, PW 28 went towards back side and had 'seen the appellants Nitin Nagpaland Rambir Jhakhar rU1ll1ing with a revolver and knife. He shouted and chased them, but' he WaS fired at. Additional SHO Inspector Kharak Singh had reached the spot at that time. (32) It is submitted that clothes of the appellant Nitin Nagpal have been. planted. It is also alleged that Nitin Nagpal was run over by the Palio car and' had sustained injuries on his chest and legs. On the second contention, no such suggestion was given to any of the witnesses. Even on planting of clothes, no such suggestion was given. The contention that the buttons of the assailants recovered from the house of Giriraj Kishore were not produced and, therefore, could not be tallied with the shili Crl. A. 1323/2013. button, refers to evidence which could have been produced but in the.present case was not produced. In the facts of the pres~nt case, where. there is ample and clear cut evidence against the two appellants, the said contention is of no meaning and relevance.

19. Having considered and dealt with the submissions of the appellants and the evidence produced by the prosecution, we would like to highlight and crystallize the evidence against the appellants.

(i) PW10 Sashi Goel, wife of the deceased, PW12 Ashu Goel, daughter-in-law of the deceased have deposed that they had seen the actual occurrence that the two appellants entered the house E 174 Ashok Vihar at about 12:20 PM on the pretext that they had brought a present.Their intention was to rob and commit dacoity. Giriraj Kishore was shot at repeatedly in their preselice. Both of them have identified the tw~ appellants. (ii)

(iii) PW[9] Taruni Goel was also present on the second floor and had the occasion to see the appellants when they came upstairs. She has identified the two appellants.. PW[9] and ~W12 Taruni Goel and Ashu Goel had also seen the two appellants outside after they were captured by the police. Crl. A. 1323/2013 Page 52 of68.---------~----....-.....-.----.

(iv) The two appellants had fled from the back door of the said house after door bell rang. PWI Inspector Kharak Singh, PW16 Head Constable Dharampal, PW20 Head Constable Ravinder and PW28 S[1] Harish Chander got injured in the encounter, which took place just outside house E-174, Ashok Vihar. Appellants Nitin Nagpal and Rambir Ihakhar were confronted by the police and an encounter took place. Firing outside on the street is proved from. the recoveries of revolver, knife and bullets, used cartridges etc. from the crime scene, report of the crime team and statements of the eye witnesses. The encounter has been proved beyond doubt:

(v) The injuries suffered by the said four witnesses are duly proved by their MLCsExhibit PW-6IA, 8/C, 8/D, 8/E and 8/F. The statement of the said injured eye witnesses is corroborated and affirmed by witnesses PW-4 Constable Paramjit and PW-38 ACP Prakesh Khera.

(vi) Presence of two appellants at the spot and the fact that Nitin

Nagpal had a revolver with him is established from the recovery of revolver Ex. P-3.The arms 'licence of Nitin Nagpal,was proved PW-26 Subhash; PW-29 S[1] Haroon Ahmad and by PW-30 Devender Singh, Arms Licence Clerk, District Magistrate's OffIce, Rohtak. Crl. A. 1323/2013 Page 53 of68

(vii) The said revolver was used to fire the bullets that killed Giriraj

Kishor is proved by the FSL report Exhibit PW..:38/H. Bullet found in the lower undergarments of the deceased was fired from the revolver ofNitin Nagpal.

(viii) MLCs of Nitin Nagpal and Rambir Jhakhar Exhibit PW-8/G arid·

8/B respectively were recorded at 1 P.M. on 23 rd June, 2005. They fully corroborate the prosecution version that both of them were detained at the spot and taken to the hospital in view of the injuries suffered, after they were beaten.

(ix) Rambir Jhakhar in his statement under Section 313 Cr.P.C. hAS stated that Paramjit had struck him with the Palio car and he has stated that he became unconscious thereafter.and regained consciousness inthe hospital. Nitin Nagpal in his statement under Section 313 Cr.P.C. has accepted his presence at the spot and has stated that a police car was there and a tall man wearing jeans and T shirt was there in front of DDA park. He has stated that Inspector Kharak Singh fired at the PCR official and PCR official fell down and then Kharak Singh fired at them. He has accepted that Kharak Singh had fired at them but has claimed that Kharak Singh had taken his' revolver and fired in the air. Thereafter, th~ee-four shots.were fired but he did not know who fired them. He felt pain in his neck and fell down and Palio car ran over him. He became unconscious and regained consciousness in the hospital. He was implicated falsely. ex) PW-34 Deepak has stated that he had driven and taken the two· appellants to Ashok Vihar in his taxi and had heard noise from inside the house.

(xi) The post-mortem report of Giriraj Kishore Exhibit PW-27/A supports and corroborates the injuries suffered were of gun shot wounds.

(xii) Giriraj Kishore had also suffered a wound caused by a sharp edged weapon. PyY 1d and PW 12 have deposed that the appellant Rambir Jakhar had hit Giriraj Kishore with knife~ Case against Sidharath Bansal

20. Sidharath Bansal was not present at the scene of crime. He was arrested based on the interrogation of the appellants Nitin Nagpal and Rambir Jhald1ar. He has been convicted for seven years under Section 120B read with Section 392 IPC and has been asked to pay Rs.50,0001- and in default of payment of fine, he has to undergo simple imprisonment for six months.

21. In the impugned judgment reference is made to the mobile call details to show and establish that Nitin Nagpal from his mobile telephone no.._----_._-----------._--_._------ -_...._.-.-.._----_._----_...._ - - --:------_. "--. ---..-.~.--.--.-------- 9818546771 was in contact with Sidharath Bansal on his mobile telephone NO. 9811777511. Impugned judgment records that·they were in constant touch during the months of May and June, 2005, just before the offence was committed (see paragraph 81 ofthe impugned judgment).

22. It was submitted before us that the trial court has relied upon statement of SI Ravinder Singh (PW41) who was the Investigating Officer in FIR NO. 999/2004, P.S. Shalimar Bagh wherein the appellants Nitin Nagpal and Sidharath Bansal were allegedly involved. Our attention was drawn to question no.2 under Section 313 Cr.P.c. put to Nitin Nagpal and Sidharath Bansal. It was submitted regarding the telephone conversation interse the two, no question was raised or explanation was sought. It was submitted that there is no proof that telephone or sim number 9811777511 was in the name.of Sidharath Bansal or was being used by him and similarly telephone number. or sim 981'8546771 belonged to Nitin Nagpal. As per the prosecution version another mobile phone number 9871964361 also belonged to Nitin Nagpal. Ithas been submitted that as per the docunients placed on record, the said telephone number belonged to one Sachin.

23. The contention of the appellant Sidharath Bansal that there is no document to show that telephone number 9811777511 belonged to or was being used by Sidharath Bansal is incorrect and has to be rejected. Not only the subscriber form has riot been produced, there is evidence in form of documents -~- -- ------------- ----.~----- ---- --y.. produced by Sanjay Sehrawat (PWl[3]) of Cleave Global, E-Services Ltd. He has deposed that Sidharath Bansal and Nitin Nagpal had undergone training. together at their company and Sidharath Bansal had worked from July, 2004 to November, 2004 for them. The original record of Sidharath Bansal was marked Ex. PW1311 to.'PWI3118. In the said documents Sidharath Bansal has given his mobile number as 9811777511. Call details of mobile No. 9811777511 were proved by Anuj Bhat~a (PW32), Nodal Officer, Vodafone, Essar Mobile Services Ltd. As per customer agreement form, the said number was issued in the name of Sidharath Bansal. The form was exhibited as Ex. PW32/A. It was submitted that there is correction in the said form and another number has been scored off. In our view, this does not make a difference, as in Ex. PW13/1 to 18, documents of Sidharath Bansal proved by PW13 the same number is mentioned. In his statement under Section 313 which was recorded before us on 3rdApril, 2013, Sidharath Bansal had stated that due to tilDe gap he could not recall his. telephone number. The said statement is obviously incorrect.

24. Telephone number 9811294150 was officially allotted and as per reco'rd ofVodafone, Essar Mobile Services Ltd. to one VinodBansal. Sidharath Bansal is the son of Vinod Bansal. However, hlliher details ets. are not available. 25.· There is senous dispute and contest whether Nitin Nagpal was usmg mobiie no. 9818546771. ACP Prakash Khera (PW38) has deposed that one Airtel sim (Ex. P/4) of Nitin Nagpal was handed over to him by the doctors as erl..A. 1323/2013 Page 57 of68 personal belongings 'of Nitin Nagpal. There has been a serious lapse on the pmi of the prosecution including the Investigating Officer as he did not get relevant details of the sim, -i.e. the telephone number pertaining to the sim.from the telecom services provider. R.K. Singh (PW25), Nodal Officer, Bharati Aiiiel Ltd. has proved the call record details of mobile number 9818546771 for the period 1st May, 2005 to i h August, 2005 which were marked Ex. PW25/A. Similarly the call details from 6th June, 2005 to 23rd June, 2005 were marked Bx. PW25/B. He had also proved on record, call details of telephone number 9871964361 for the period 1st May, 2005 to 23rd June, 2005 which were marked Ex. PW25/C. He, however, has stated that these call details were supplied earlier and were available on judicial record. They had, however, are destroyed e the call details as all call details beyond one year were destroyed. He, did not produce the subscriber form with regard to the sim card. He had stated that name of the company i.e. the ·service provider was printed on the chip/sim oard so that the company could identifY the mobile number allocated to the said sim card. The said statement was made on 12th November, 2009. The witness was called for further examination which was recorded on 2nd April, 2012. I-Ie deposed that telephone mobile no. 9871964361 was in the name of Sachin Kumar rio Faridabad as per scanned customer identification form (Ex. PW25/b). He deposed that subscriber's details of mobile No. 9818546771 was not available in the system and did not give the details of the person who was the subscriber ofthe said number. Nor could he provide details of the particular -------------------sim c~rd used in the mobile instrurl[1].ent for the year 2005 as the records had been erased. In the cross-examination by the Public Prosecutor, he denied the suggestion that mobile number 9818546771 was in the name ofNitin Nagpal rio Faridabad and that they were willfully not producing the above data. It may be il~teresting to note that mobile instrument IMEI No. 3518584610980 was used with mobile sim number 9818546771 as per EX.PW25/A & PW25/B and also with siin number 9871964361 vide call records Ex. PW2SIC. Thus the same mobile instlument/phone used by a person using numbers 9818546771 a11d

987964361. Ex. PW25/C also shows that mobile call was made from mobile. ~ number 9811777511 of Sldharath Bansal to 9871964361 at 11.12 AM on 23 June, 2005. Prosecution in this regard, subsequently produced SI Ravinder Singh (PW41). He was the investigating officer in FIR No. 999/2004 P.S. Shalin1ar Bagh, New Delhi. Sidharath Bansal and Nitin Nagpal were implicated in the said case and they were arrested and charge-sheeted. During investigation, it was revealed that mobile No. 9818546771 was in the name of NitinNagpal rio Faridabad Haryana. In the cross-examination,. however, PW41 has deposed that he could not produce any document or customer form to prove that the said number was in the name of Nitin Nagpal. However, he was not specifically cross-examined on his deposition in relation to the investigation that mobile No. 9818546771was used or was in the name of Nitin Nagpal. In view of the deposition of R.K. Singh (PW25) stating that customer identification record for the said number had been destroyed or erased, the prosecution had no - -....-.._-..._----option but to produce ocular evidence. In these circumstances, we do not think that statement of SI Ravinder Singh (PW41) should be completely ignored. The assertion made by PW41 has to be examined with care and caution. Examination of call records (Ex. PW25/A to PW25/C) and call records (PW32/D) do show that number of calls were being exchanged between the, subscribers. There were long cOI1Versations which show and establish closeness between the two callers.

26. During the course of hearing before us, objection was raised.that there were lapse on the pali of the trial cOUli as no question was put to Sidharath Bansal, that telephone no. 9818546771 was being used by Nitin Nagpal and he was in touch with him via mobile no. 9811777511. Similarly, Nitin Nagpal was not confronted with any material/evidence or suggestion that he was using telephone no. 9818546771 in his questioning under Section 313 Cr.P.c. The follOWing relevant questions were put to Sidharath Bansal under Section 313 Cr.P.C.: "Q.[2] It is in evidence against you that you were knowing accused Nitin Nagpal as you both had taken training together as evident from Ex.PW-13/Bl to B12. What have you to say?

April, 2004, at Cleave Global Call Center Acadeniy. xxxxxxxxx Q.53 It is in evidence against you that call.details of Crl. A. 132312013. mobile NO.931583654 and 9350804131 for the period 3rdMay, 2005 to 23rd June, 2005 was collected and filed on record vide Ex.PW-24/A and B and also call details of mobile phone nO.9818546771 for the period 1st 11ay, 2005 to 7th August, 2005 was collected and filed on record vide Ex.PW-25/A and B and also call details of mobile 110.9871964361 was collected and. filed on record vide Ex.PW-25/C. What you have to say?

2013.

28. Nitin Nagpal has stated that telephone no. 981846771 was not his number and he did not have any knowledge of Sidharath Bansal's telephone nuniber. He has stafed that hedid not know telephone no. 9871964361. Sidharath Bansal, e- has stated that he was not on talking terms with Nitin Nagpal. He, however, accepted that the question I"elating to FIR 99912004 was correct. We have already quoted t1~e earlier reply given by Sidharath Bansal, wherein he had - - - - - -, - -.-._--.._---. - ----- -- --~ ------------~-,-.~--- ----,..._----------stated that he. knew Nitin Nagpal and both of them had undergone training together in April, 2003 at Cleave Global, E-Services Ltd.

29. As noticed above, questions were to put to both Sidharath Bansal' and Nitin Nagpal in their statements recorded under Section 313 Cr. P.C. by the trial ~burt, though direct questions pertaining to exchange of telephone calls was not asked. The said lapse in our opiriion has not caused any prejudice as it is apparent from question no. 2 and other questions put to Sidharath Bansal and questions which were put to Nitin Nagpal. It was put to them that were well aquainted. To make up for the said lapse and technical plea, statements ofNitin Nagpal and Sidharath Bansal u/s 313 Cr.P.C. on the said aspect were recorded in the High COUli after detailed order dated 13th March, 2013 was passed. This takes care of the technical pleas raised by Sidharath Bansal and Nitin Nagpal.In Ramnaresh v. State ofChhattisgarh (2012) 4 SCC 257, reference was made to Section 313 Cr.P.c., right to fair trial, presumption of innocence, unless proved guilty and proof by prosecution beyond reasonable doubt. It was observed that when, we speak about prejudice to an accused, it has to be shown that the accused has suffered some disability or some detriment to any of these protections. Prejudice has to be demonstrated and it has to be shown that there was failure of justice. Camouflage cannot be· allowed, in the garb of defence. Similar view has been taken in Nagesh v. State of Karnataka (2012) 6 SCC 477 wherein reference has been made to several other decisions. In Satyavir Cr!. A. l32312013 Page 62 of68 -----.__._--._--- ----- ---- ------------~---..--.----~....-----._-- Siligh Rathi, Assistant Commissioner of Police and Ors. Vs. State through Central Bureau of Investigation (2011) 6 SCC 1, it has been held that the accused must prove prejudice on account of omission to put questions under Section 313 Cr.P.C. The section is based on rules of natural justice that the accused may not be aware of the c"ircumstances against him so that he can give appropriate explanation to meet and defend. When the accused is represented by a competent counsel and witnesses are subjected to grueling and detailed examination, the courts should be reluctant to interfere on the ground, even assuming that some incriminating circumstances had been left ouL The objection should be taken at the earliest stage. e 30. Even if we do not take these telephone calls under corisideration, there is sufficient material to show that Sidharath Bansal and Nitin Nagpal knew each other. Both of them had trained in the same academy and we have quoted the reply of Sidharath Bansal to question no. 2 in his statement under Section 313 Cr.P.C. The police and" family members of Giriraj Kishore were unaware that.Nitin Nagpal lmew Sidharath Bansal or Sidharath Bansal was involved in the cnme. During police investigation and intenogation of Nitin Nagpal and Rambir Ihakhar police officers came to lmow about involvement of Sidharath Bansal. Subsequently, Sidharath Bansal was anested.

31. Sidharath Bansal is close and related to family of Giriraj Kishore. This uncontestable position which has been proved from the testimony of family Page 63 of68 ~) CY members of Giriraj Kishore, PW[9], PW10, PW12 and PW17. Statement or assertions made by Nitin Nagpal during police interrogation are inadmissible in view of Sections 24 to 27 of the Evidence Act. However, the leads given by Nitin Nagpal during the course of investigation are admissible under Section 8 of the Evidence Act. Referring to Section 8 of the Evidence Act,the Supreme Court in Prakash Chand v. State (Delhi Admn.) (1979) 3 SCC 90, has observed as under: "8. It was contended by the learned Counsel for the appellant that the evidence relating to the conduct of the accused when challenged by the Inspector was inadmissible as it was hit by Section 162, Criminal Procedure Code. He relied on a decision ofthe Andhra Pradesh High Court in D.V. Narasimham v. State [AIR 1969 AP 271: 1969 Cri LJ 1016: 1969 MLJ (Cri) 687]. We do not agree with the submission of Shri Anthony. 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 stich conduct is influenced by any fact in issue or relevant fact and the statementmade to a Crl. A 34912009 & conn.matters 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, Crl. A. 1323/2013 Page 64 of68 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 (vide Himachal Pradesh Administration v. Om Prakash [(1972) 1 SCC 249

The Supreme Court has further elucidated in State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600:

---------------- ------------.------------- - --------------------- -------- ------- ----

32. Robbery/dacoity of the nature which Nitin Nagpal and Rambir Thakhar had attempt~d and committed was not possible without conducting detailed background- research and having full and complete details about the family members of house no. E-174 Ashok Vihar, their names, basic knowledge about the architectural design of the house, persons who would be present at the. relevant time, valuables and assets which might be available etc. In the present case, a specific house was targeted in a carefully thought out and plmmed operation. The two appellants Nitin Nagpal and Rambir Thald1ar gained entry to the house claiming that they had brought a present for Deepak Goel who was residing at the house, from one Singlaji. Nitin Nagpal and Rambir Jhald1ar I could have known the name of son, Deepak Goel, only if somebody had e informed them. They were aware of the time when only one male member of the family would be present and all others would be either ladies -or children. They were aware that no servant would be present. They knew that the house had two entrances. A preplani1ed robbery/dacoity requires insider information and knowledge that valuables would be available in the house and there would be only marginal or no resistance. Nitin Nagpa! and Rambir Jhalrnar gained entry to the house as, they knew facts as to the names of family members or the relatives. This information and details in the present case could have come fro111 one source, 1.e. the appellant Sidharath Bansal. Therefore, the leads gIven during the investigation under Section 8 ofthe Evidence Act assume importance and relevance. Cr!. A. 1323/2013 --------------- ---- -' - -- "- - -----------------------.._-----_.-._------- "_.- - - - - -

33. Prosecution, necessarily and in most conspiracy cases have to rely upon circumstantial evidence. Further in such cases, courts have to examine and draw inferences from the indirect evidence which is established and proved. The question which arises and has to be examined is, was there any kind of physical manifestation of the agreemel1t between the conspirators? Expressed agreement or physical meeting between the conspirators need not be proved but facts proved must indicate that there was meeting of minds. The es~ential ingredients of offence under Section 120AI120B IPC is that there should be agreement between the parties who conspire and the agreement should be for doing an illegal act or indulge in illegal means to do an act which may not be by itself illegal. Dacoity or robbery is an illegal act. The question, therefore, is e whether there was any agreement between Nitin Nagpal/Rambir Jhakhar and SidharathHansal for committing the said crime or illegal act. What is required to be seen is whether two persons i.e. Nitin NagpaliRambir Jhakhar and Sidharath Bansal had common design and had cOrispired to commit act of.." robbery/dacoity and whether they had agreed to commit the relevant act. Having examined the above ~vidence, even if we do not take into account the. telephone record, we feel that there was an agreement for committing of the illegal act.

34. The aforesaid offence and the manner and mode in which it was committed by Nitin Nagpal/Rambir Jhakhar was impossible without active Page 67 of68 involvement of an insider who provided logistical details on several aspects I before the planned operation was undertaken. ~here is no other insider who could have provided the said information and support except Sidharath Bansal. \Sidharath Bansal in his statement under Section 313 Cr.P.C. has not stated that he had innocently informed and given some details of the family of Giriraj Kishore to Nitin NagpaliRambir Jhald1ar.

35. In VIew of the aforesaid discussion, we uphold the conviction and sentences of Nitin Nagpal, Rambir Jhalffiar and Sidharath Bansal. Directions with regard to fine are also upheld. Sentences would run concurrently. However, it is directed that 50% of the fine collected for the offence under Sections 302, 392, 393 IPC read with Section 120B IPC from the three appellants will be paid to wife of Giriraj Kishore and in her absence to his Class-I legal heirs. Appeals are disposed of.

AUGUST )lj ~2013 Id<:b/Y.KRJNA,/ ~F,T-