Full Text
HIGH COURT OF DELHI
Date of Decision: 3rd March, 2023
DEEPAK @ CHOWDA ..... Appellant Represented by: Mr. Lalit Valecha, Mr. Pranshu Gosain, Mr. Sameer Chopra, Ms. Tanya Bali & Mr. Vishal, Advs.
State with Insp. Daleep Kumar, PS Cr.Br.
Mr. M.N. Dudeja, Mr. Aditya Mishra, Advs. for complainant.
DESH RAJ @ DESU ..... Appellant Represented by: Mr. Vikas Arora & Ms. Radhika Arora, Advs.
State with Insp. Daleep Kumar, PS Cr.Br.
Mr. M.N. Dudeja, Mr. Aditya Mishra, Advs. for complainant.
HITENDER SINGH @ CHHOTU ..... Appellant Represented by: Mr. Lalit Valecha, Mr. Pranshu Gosain, Mr. Sameer Chopra, Ms. Tanya Bali & Mr. Vishal, Advs.
N.C.2023/DHC/001566 Crl.A.Nos.553/2020 & connected matters
STATE OF NCT OF DELHI ..... Respondent Represented by: Mr. Mukesh Kumar, APP for
State with Insp. Daleep Kumar, PS Cr.Br.
Mr. M.N. Dudeja, Mr. Aditya Mishra, Advs. for complainant.
PARVEEN KOLI ..... Appellant Represented by: Mr. Lalit Valecha, Mr. Pranshu Gosain, Mr. Sameer Chopra, Ms. Tanya Bali & Mr. Vishal, Advs.
State with Insp. Daleep Kumar, PS Cr.Br.
Mr. M.N. Dudeja, Mr. Aditya Mishra, Advs. for complainant.
KISHANPAL @ FAUZI ..... Appellant Represented by: Mr. Madhav Khurana, Mr. Kartikeye Dang, Advs.
State with Insp. Daleep Kumar, PS Cr.Br.
Mr. M.N. Dudeja, Mr. Aditya Mishra, Advs. for complainant.
N.C.2023/DHC/001566 Crl.A.Nos.553/2020 & connected matters
HON'BLE MR. JUSTICE ANISH DAYAL MUKTA GUPTA, J.
JUDGMENT
1. By the present appeals, the five appellants challenge the common impugned judgment dated 22nd June, 2020 whereby, six out of ten accused who faced trial were convicted for conspiring to murder one Vijay Yadav („deceased‟) for offences punishable under Sections 302 IPC and 120-B IPC and the order on sentence dated 22nd September, 2020 whereby they were awarded imprisonment for life along with fine. The sixth convict Bhisham @ Chintoo has not preferred any appeal against his conviction. No leave to appeal petition has been filed by the State against the acquitted accused.
2. In a nutshell, case of the prosecution is that on 29th September, 2007, a PCR call was received at PS Hauz Qazi regarding a man being shot at Gali Arya Samaj, Sita Ram Bazaar, on which, DD No. 15-A was recorded. The other call received regarding the incident was recorded vide DD No. 16A. Both these informations were marked to SI Mahmood Ali and he alongwith SHO Insp. Anil Sharma and other police personnel reached the spot and found blood on the ground in front of H.No. 2745. An empty shell of 9 mm cartridge was also found near the scene of crime. On enquiry, it was found that at around 7.30-7.45 pm, victim Vijay Yadav @ Vijji was surrounded by five-six persons, two of whom were having firearms in their hands and who thereafter shot the deceased. The deceased fell on the ground in a pool of blood and was taken to LNJP Hospital, where the deceased was declared “brought dead”. No witness was found at the spot and after making endorsement to that effect, FIR No. 356/2007, under section 302 IPC was N.C.2023/DHC/001566 Crl.A.Nos.553/2020 & connected matters registered at PS Hauz Qazi. Photographer and crime team were called and the body was sent for post mortem examination. The dead body was identified by the father and brother of the deceased.
3. Dr. Ankita Dey (PW-8), SR, Deptt. of Forensic Examination, MAMC conducted the post mortem examination on the body of the deceased Vijay Yadav, on 30th September, 2007 at 11 am and tendered her report vide Ex.PW-8/A. As per the report, following injuries were found:
(1) Firearm entry wound (1.[5] x 1) cm with blackening tattooing (3x[2]) cm, with inverted margin and abrasion collar prorest on right margin and side temple 3 cm from right eyebrow. (2) Firearm entry wound (1 x 0.6) cm chest blackening, following (2 x 1) cm with inverted margin and abrasion collar present over right side of neck 4.[5] cm below right ear. (3) Firearm entry wound (1 x 0.5) cm with blackening tattooing (2 x 2) cm, with inverted margin and abrasion collar present over right side of neck 3 cm below injury no. (2). (4) Firearm exit wound (2 x 1) cm with inverted margin, present over right side of neck 2 cm below injury no. (3) (5) Firearm entry wound (1.[5] x 1) cm with inverted margin and abrasion collar present over back of right side of chest, 5 cm below tip of shoulder. (6) Firearm entry wound (1.[2] x 1) cm with inverted margin and abrasion collar present over back of right side of abdomen 3 cm from midline and 4.[5] cm from posterior superior iliac spine. (7) Firearm exit wound with inverted margin (2 x 1.5) cm present over front of left side of abdomen 4 cm above anterior superior iliac spine, 5 cm from midline. Track of Injury Crl.A.Nos.553/2020 & connected matters (1) The projectile entered through injury no. (1), pierced the right sided scalp layer hit the skull bone and following the outer table of skull and fracturing it and travelled through both frontal lobes of cerebral hemisphere, passed from right to left side of skull, upward and forward, pierced the opposite side of skull bone, beveling the inner table and fracturing it and lodged under the scalp of left frontal region. (2) The projectile entered through injury no.(2) pierced the right side neck, travelled from right to left side of neck, piercing the subcutaneous tissue, muscles, blood vessels, travelled through the opposite side muscle and subcutaneous tissue and lodged on left side of neck. (3) The projectile entered through injury no. (3) pierced the skin and subcutaneous tissue, blood vessel and muscle and lodged under the muscle layer on same side of neck. (4) The projectile entered through injury no.(5) pierced the right side of scapula, fracturing it and travelling upward, forward and to the right side of neck by piercing subcutaneous tissue and muscle, blood vessels and then passed through injury no.(4). (5) The projectile entered through injury no.(6) pierced the muscle, blood vessel and travelled from right side of back of abdomen to left side of front of abdomen, entering the peritoneal cavity, passed through and through the sternum and ____ of front of left side of abdomen and passed through injury no.(7). Death was due to combined effect of cranio cerebral damage and hemorrhage and shock consequent upon penetrating injuries to the head and abdomen caused by projectile of a rifled fire arm via injury no. l, 6, and 7. Injury 1, 6 & 7 was sufficient to cause death in ordinary course of nature.
4. Upon completion of investigation, first chargesheet was filed against nine accused persons namely Hitender Singh @ Chotu, Praveen Koli, Parmod Singh @ Pammy, Bhisham @ Chintoo, Vinod Kumar @ Gola, Rishipal @ Pappu, Gopal Kishan Aggarwal, Desraj @ Desu and Ashok Jain on 21st February, 2008; supplementary chargesheet against Deepak @ Chowda was filed on 18th July, 2008; and supplementary chargesheet against accused Kishanpal @ Fauzi was filed on 05th September, 2009. Another accused Dimple @ Sumit Tyagi died in an encounter by UP Police at Meerut, Uttar Pradesh on 22nd October, 2007. All the eleven accused were charged for offences punishable under Sections 302/120B IPC. Accused Hitender Singh @ Chotu, Deepak @ Chowda and Kishanpal @ Fauzi were also charged for offence under Section 174A IPC, but were tried separately for that offence. Trial of accused Vinod Kumar @ Gola was separated as he was reported to be unfit. To establish its case, the prosecution examined 68 witnesses during trial, and Anju Gupta (PW-1) and Dheeraj Sharma (PW-2) are the two eye witnesses.
5. Appellants assail the impugned judgment on the ground that the same is based upon the testimonies of the two eye witnesses Anju Gupta and Dheeraj Sharma. It was contended that Anju lives in a tenanted premises owned by Abhay (PW-14) who is the brother of the deceased, and Dheeraj (PW-2) is a neighbor and family friend of Abhay hence, both these eye witnesses are interested, unreliable and planted witnesses. It was further contended that statement of Anju Gupta (PW-1) recorded under Section 161 of Code of Criminal Procedure, 1973 (“CrPC”) dated 30th September, 2007 is ante dated and that of Dheeraj is undated and thus, both the statements are concocted. Insp. Rajinder Dubey (PW-11), who was the second IO in the case, in his cross examination stated that he had no knowledge of any eye witness, Anju Gupta or Dheeraj, till the investigation was with him i.e. till 09th October, 2007, and he did not issue any notice under Section 160 CrPC. Therefore, the possibility of planting of the eye witnesses cannot be ruled out. It was also contended on behalf of the appellants that the prosecution failed to establish any motive for the alleged crime, as also noted in the impugned judgment. Furthermore, the police officers neither made any enquiry nor recorded the statement of Gopal Krishan Aggarwal who had made the PCR call on the date of incident, rather he was made an accused in the case.
6. On behalf of appellant Deshraj @ Desu, it was contended that no recovery was effected from the appellant and the prosecution was unable to prove that the appellant in fact absconded from his house. It was contended that the non bailable warrants against Deshraj were issued on 07th January, 2008 which shows that his name was subsequently added. It was further contended that the prosecution has relied upon the testimony of Amar Singh (PW-19) to establish that the deceased was last seen with the appellant, however version of PW-19 cannot be relied upon as he is an interested witness, being the father of the deceased. Further, the eye witness Dheeraj (PW-2), brother of deceased Abhay (PW-14) and the deceased were all having criminal antecedents and were externed from Delhi for two years. It was contended that police had shown several photographs to Anju Gupta (PW-1), but she identified only three persons and did not identify appellant Deshraj to be present at the time of incident. There is no evidence to establish the presence of appellant Deshraj at the spot or that he was known to the other accused persons prior to the incident. It was further contended that the conduct of the eye witnesses was also unnatural in as much as they neither informed the police nor helped in shifting the deceased to the hospital nor informed Abhay Singh (PW-14) or any other member of Crl.A.Nos.553/2020 & connected matters deceased‟s family about the incident. No evidence was brought on record to establish that the eye witnesses PW-1 and PW-2 were in fact present at the spot. It was further contended that the investigation in this case has been sketchy as Deepak Sharma (PW-46) who took the deceased to the hospital, as mentioned in the MLC, was never examined by police under Section 161 CrPC. Further, PW-46 stated that he was informed about the incident by his brother Praveen and thereafter, he rushed to the spot, where he saw four persons removing the injured on their motorcycle and at the Hamdard Chowk, the deceased was shifted from motorcycle to TSR. Neither Praveen nor any of the said four persons were examined by the police.
7. On behalf of appellant Kishanpal @ Fauzi, it was contended that the eye witnesses to the incident are not reliable witnesses. It was submitted that PW-1 is not reliable because in her testimony, she stated to have seen fivesix persons surrounding the deceased on the day of incident, but in the court, she identified appellant Kishanpal as the seventh accused which was contrary to all her previous statements, as also her deposition in court. Further, PW-1 neither informed her husband nor the police about the incident, but informed the friends of deceased i.e. PW-4 and PW-10. As regards Dheeraj (PW-2), it was contended that there are contradictions in the testimony of Dheeraj. Dheeraj does not have clean antecedents and there are three FIRs lodged against him under the Arms Act. Learned counsel for Kishanpal further contend that no investigation was carried out qua the appellant Kishanpal and no specific role was ascribed to him. Nothing incriminating was recovered at the instance of the appellant Kishanpal. As per the testimony of Insp. Dharam Singh (PW-54) and Ct. Rambir Singh (PW-59), appellant was declared a proclaimed offender and Crl.A.Nos.553/2020 & connected matters the factum of his subsequent arrest was proved by the prosecution. It is however contended that mere abscondance of a person cannot be ground for conviction. Reliance was placed on the decision reported as 2018 SCC OnLine Del 6678 Chhatar Pal v. State. It was further contended that accused Rishipal @ Pappu had personal enmity with deceased as the deceased and his brother had filed a false case of kidnapping against Rishipal‟s brother; accused Gopal Krishan Aggarwal had a financial dispute with the deceased; and accused Ashok Jain had a political rivalry with the deceased, however, these three accused were acquitted and rather appellant Kishanpal who had no motive to commit the alleged crime, as also noted in the impugned judgment, was convicted. Reliance was placed on the decision reported as (2003) 12 SCC 792 Badam Singh v. State of MP. It was further contended that the deceased himself was a bad character and therefore, the possibility of him being killed by any of his other enemies cannot be ruled out.
8. Learned counsel appearing on behalf of appellants Hitender Singh @ Chhotu, Deepak @ Chowda and Praveen Koli contended that the eye witnesses to the incident are not reliable and their statements are contradictory. Further, the CDRs of these eye witnesses were also not preserved by the police to establish their presence at the spot at the time of the incident. Police did not carry out the investigation properly, as neither any effort was made to find out about the two cell phones used by the deceased, nor to find out the looks/ description of the assailants from the eye witnesses. Further, no case diaries were prepared which is a sacrosanct document and is to be mandatorily prepared as per the Punjab Police Rules. It was further contended that although as per the prosecution story, two Crl.A.Nos.553/2020 & connected matters firearms were used, however, there was no recovery of any weapon of offence from any of the appellants. Further, no evidence has been placed on record to establish premeditation on behalf of the appellants to commit the murder of deceased Vijay Singh. Although a register of one Kwality Hotel was brought on record which records the name of appellant Hitender Singh along with name of some other random persons, to whom no role has been ascribed, however, the same cannot be held to be sufficient evidence to establish premeditation. It is also the case of prosecution that one gold chain and gold bracelet belonging to deceased were recovered from appellant Hitender Singh and Deepak respectively, however, the same are planted as neither any complaint of any article being lost was made by the family members of the deceased nor any eye witness deposed about snatching/ stealing of any article by any of the accused persons, nor was Ld. Trial Court convinced about framing charge under Section 404 IPC. It was also contended that the appellant Hitender was arrested by police after four months from the date of alleged incident and it is improbable that the accused was in possession of the broken gold chain even after four months.
9. On the other hand, learned APP for the State contended that the impugned judgment of the Trial Court is well reasoned as it is based on cogent evidences all of which point towards the guilt of the appellants and hence, the present appeals are liable to be dismissed. It was contended that Anju Gupta (PW-1) and Dheeraj Sharma (PW-2) are both material and reliable witnesses whose testimonies are corroborated by testimonies of other witnesses as also the medical evidence on record. There is neither any record of enmity of these two eye witnesses with any of the accused persons nor is there any reason or motive to frame the accused persons. Further, both Crl.A.Nos.553/2020 & connected matters the eye witnesses are natural witnesses residing in the same locality and PW-1 also runs a tuition centre nearby. Contention on behalf of the appellants that Anju (PW-1) did not inform the police or any of the family members of the deceased, was countered by learned APP by pointing out that PW-1 stated that she did not have any phone at that time which was the reason for not informing the police or any family member of the deceased, however, she ran to the office of the deceased immediately after the incident and informed PW-4 and PW-10 present there. The appellants raised some doubt over the recording of statement under section 161 CrPC of Anju PW- 1 on 30th September, 2007, in respect of which it was submitted that as per DD No. 12A dated 30th September, 2007, PW-25 and PW-24 left for the LNJP hospital for the post mortem proceedings, but in the meanwhile, an information was received by PW-25 that one Anju Gupta had some information about the occurrence of incident, and accordingly, PW-25 instructed PW-24 to go to the hospital and get the post mortem proceedings started and PW-25 himself went to the house of PW-1 to record her statement, after which he went to the hospital for getting the body identified and handing over the body to the family members and other proceedings. It was contended that the said facts were also recorded by PW-25 in the case diary no. 2 dated 30th September, 2007.
10. Contention on behalf of appellant Deshraj @ Desu that the police straight away obtained NBW against Deshraj was countered by learned APP stating that the IO visited the house of Deshraj at 2037, Peeli Kothhi, Sita Ram Bazaar where he met the brother of Deshraj who informed the IO that Deshraj does not visit their house as he has a criminal background and that these days he was in company of one Hitender @ Chhotu and they were Crl.A.Nos.553/2020 & connected matters together residing somewhere in Rohini. As per the case diary, the police visited the house of Deshraj five times as noted in DD No.24 dated 21st October, 2007, DD No. 35 dated 26th November, 2007, DD No.52 dated 18th December, 2007, DD No.59 dated 03rd January, 2008 and DD No.60 dated 05th January, 2008. Apart from this, Deshraj was seen along with accused Praveen Koli going towards the place of occurrence by father of deceased (PW-19) on 29th September, 2007 just before the incident. It was further contended that the contention on behalf of the appellant that the CDRs of the eye witnesses were not preserved, is baseless as the same could also have been sought by the appellants by moving an application before the trial court seeking preservation of the CDRs. As regards motive, reliance was placed on the decision titled as (2017) 11 SCC 195 Yogesh Singh v. Mahabeer Singh & Ors. It was contended that in case of direct trustworthy evidence as to the commission of offence, motive is insignificant. It was further contended by learned APP that minor lapses and omissions on part of the IO is not a ground for discarding the case of the prosecution and reliance was placed on the judgment in Crl.A.21-22/2011 decided on 26th September, 2018 by the Hon‟ble Supreme Court titled as State of Madhya Pradesh v. Chakki Lal & Ors.
11. Learned APP submits that prosecution has proved that Praveen Koli went to the office of the deceased few minutes before the incident and brought him to the spot. Thereafter, Praveen Koli, Bhisham @ Chintoo, Deepak @ Chowda and Deshraj @ Desu surrounded the deceased while Kishanpal @ Fauzi and Hitender @ Chhotu fired the gunshots. Appellants Praveen Koli, Deepak @ Chowda, Deshraj @ Desu, Kishanpal @ Fauzi and Hitender @ Chhotu refused to undergo judicial TIP. Further, a gold chain Crl.A.Nos.553/2020 & connected matters with locket belonging to the deceased was recovered at the instance of the appellant Bhisham @ Chintoo (Ex.PW-41/A), a bracelet of the deceased was recovered at the instance of Deepak @ Chowda (Ex.PW-35/M) and a blood stained gold chain having gunshot mark along with the car used in the crime was recovered at the instance of appellant Hitender @ Chhotu (Ex.PW-62/Z[2] and Ex.PW-41/B respectively). The said chain with locket (Ex.PW-41/A) and the bracelet (Ex.PW-35/M) were both duly identified by Ajay Singh (PW-14) in judicial TIP vide Ex.PW-12/E and Ex.PW-61/E respectively.
12. It was contended on behalf of the complainant that the prosecution has successfully established its case by evidence of last seen witnesses, eye witnesses, medical evidence and recoveries made from accused persons, and hence, the appeals may be dismissed. It was contended that the eye witnesses PW-1 and PW-2 are both natural witnesses, residing in the area since 1994 and they both have explained the incident with specific details and withstood their testimonies despite extensive and elaborate cross examination, and their testimonies are corroborated by the medical evidence tendered by Dr. Ankita Dey (PW-8). Further, the testimonies of the last seen witnesses PW-4 and PW-10 that Praveen Koli had taken the deceased with him from the office of the deceased is corroborated by the father of the deceased PW-19 that the deceased was last seen with Deshraj @ Desu, Praveen Koli and Bhisham @ Chintoo. Bracelet of deceased was recovered from Deepak @ Chowda from Dehradun, blood stained gold-chain having gunshot marks was recovered at the instance of Hitender @ Chhotu from his residence, all of which were duly proved and these articles were identified by the PW-14 in judicial TIP. It was further contended that the appellants Crl.A.Nos.553/2020 & connected matters refused to undergo judicial TIP for their identification by the witnesses. It is settled law that if motive is not proved, it does not ipso facto affect the case of prosecution adversely, especially where the case is otherwise established and there is no reason for the witnesses to falsely implicate the appellants in the case.
13. Having heard learned counsel for the parties at length and perusing the record, the following evidence led by the prosecution emerges on record.
14. Eye witness Anju Gupta (PW-1) in her examination in chief deposed that she knew deceased Vijay Singh @ Vijjy and on 29th September, 2007, at about 7.30 pm when she was going to the Shiv Mandir, she saw five - six people surrounding the deceased. Out of those persons she identified three boys as she had seen them in Sita Bazar on some earlier occasion. Two of the remaining persons had pistol in their hands, who then fired at the deceased. Thereafter, the deceased fell on the ground and the boys ran away to the Hamdard Chowk. She rushed to the office of deceased, where one Billu and Pramod were present to whom she told about the incident and then went to her institute and relieved all the students. She identified (not by names) accused Praveen, Vinod Kumar, Deepak, Hitender, Bhisham, Deshraj and Kishanpal in the court as the persons surrounding the deceased on the day of incident. She identified accused Hitender and Kishan Pal as the ones having pistols in their hands and accused Bhisham, Deepak and Vinod as the one whom she had seen in the Bazaar on an earlier occasion as well. In her cross examination, she admitted to have known the brother of deceased Ajay Singh and the other eye witness Dheeraj Sharma. She stated that she was not having any mobile phone at the time of the incident and was having a landline number in her house. She further admitted that she Crl.A.Nos.553/2020 & connected matters had not met Deepak and Dheeraj in the gali after the incident on the day of incident. She stated that she did not go near the place where deceased had fallen down and she did not ask any passerby to take deceased to the hospital. She stated to have not made any call to the police or informing her husband or anyone about the incident except conveying the message at the office of the deceased. She refused to tell about the ownership of the mobile no. 9999640963, and stated that she used to contact Abhay Singh on his mobile no. 9999499994 from the above-said mobile no. as when the need arose, but on the day of incident, she did not inform Abhay Singh on his mobile about the incident. She further stated that on 30th September, 2007, SHO Anil Sharma along with two other officials had visited her house at about 9-10 am, and made enquiries from her. She stated that during the period 30th September till 11th October, 2007, she was not called to prepare any sketch of the culprits and that she had not given any description of the assailants to the police. She stated that Insp. K.G. Tyagi visited her house on 11th October, 2007 and had shown her about 8-10 photographs out of which, she had identified three persons as the assailants namely Bhisham @ Chintu, Vinod Gola and Deepak @ Chowda. She stated that she had not visited the place of occurrence with the police on any occasion.
15. Eye witness Dheeraj Sharma (PW-2) in his examination in chief corroborated the version of Anju Gupta. In his cross examination he deposed that at the time of incident he did not have any mobile connection and had landline at his residence. He stated that generally he used to leave his house at 10 am and used to come back by 8-9 pm for work, but the day of incident was a weekly off being Saturday. He also stated that the house of Ajay Singh was next to his house and therefore he knew Abhay for the last 20 years. The house of the father of deceased was also in the same gali and the deceased used to reside with his father. He admitted that three FIRs were lodged against him. He stated to have known accused Rishipal @ Pappu prior to the incident as he was a partner of Abhay Yadav. He stated that after the incident he was perplexed and therefore, went straight to his house and despite the fact that he passed through the spot, he did not check whether the deceased was dead or alive. He did not try to make call to the PCR and did not inform the father and brother of deceased after the incident. He further stated that Insp. Rajinder Dubey had not summoned him in this case at any point of time and that he had no knowledge that Insp. Rajinder was investigating the matter till 09th October, 2007. He stated that his statement was not recorded on the day of incident or the subsequent day when the dead body was collected from the hospital. He also stated that while he was coming back from the hospital in the night of 29-30th September, 2007, at about 3-3.30 am, he had shown the place of occurrence to two police officers but no site plan or pointing out memo was made.
16. Pramod Kumar (PW-4) deposed that the deceased was his friend and he used to treat the deceased as his elder brother. On the day of incident, at about 6 pm, he was present at the office of the deceased along with the deceased and Niranjan Singh. At about 7-7.15 pm, one unknown person (Praveen) came and told the deceased that one „bhai sahab‟ has come and is standing outside the gali. Deceased asked about who the „bhai sahab‟ was. After talking for about two minutes in private, the deceased took his belongings from the office and went with Praveen, and after about 20-25 minutes of deceased‟s departure, Anju bhabi, who was running a coaching institute at third floor of their office, came running to their office and Crl.A.Nos.553/2020 & connected matters informed that some assailants have fired upon the deceased. He stated that on reaching Irwin Hospital, he found that the deceased had expired. He stated that a quarrel had taken place on 22-23rd August, 2007 when Chintoo (Bhisham) and Chandan had seen him talking with the deceased, and on instructions of Ashok Jain, he was beaten by Chintoo and Chandan. He had lodged a complaint with police at PS Turkman Gate for this incident. Chintoo and Chandan were pressurizing him to compromise the matter with Ashok Jain. He stated that it took him 10-12 minutes to reach the spot and when he reached the spot, he found one or two police officials at the spot.
17. Niranjan (PW-10) corroborated the version of Pramod (PW-4) and stated that he was doing the business of property under the deceased. He also stated that the friendship between Pramod (PW-4) and deceased commenced only a few months back.
18. Amar Singh Yadav (PW-19), who was the father of the deceased, turned hostile during his examination before the court. He deposed that he had last seen his son/deceased on 29th October, 2007 at about 7.15 pm, when he was at his factory at 429, Main Road, Bazar Sita Ram, Delhi and deceased was coming from Than Singh Gali along with two-three persons. On asking, the deceased told him that he was going to Arya Samaj Gali and would come back shortly. After about 15-20 minutes, one person came to his shop and told him that Vijay was shot at Arya Samaj Gali and was lying in a pool of blood. On hearing this, he became perturbed, his condition deteriorated and he was taken to his house. After some time he went to the spot where he was informed that deceased was taken to LNJP Hospital where he saw Abhay Yadav, Chandan Devi (mother) and Rekha Rani (sister) and found out that his son had died. On the next day he went to the Crl.A.Nos.553/2020 & connected matters hospital to identify the dead body (Ex.PW-19/A) and thereafter, he identified accused Praveen, Deepak and Bhisham as the persons accompanying his son on the day of the incident. Thereafter, the witness was declared hostile upon which, he identified accused Deshraj as one of the persons accompanying his son on the day of incident and stated that one persons did not belong to the locality, while other two were the residents of Sita Ram Bazar. He also stated that he wrongly identified Deepak as one of the persons accompanying his son. in his cross examination, he stated that on the day of incident he reached the spot within ten minutes but did not find any police officer there.
19. Abhay Singh Yadav (PW-14) who was the brother of the deceased, in his examination in chief deposed that he received the information about bullet injury to his brother/ deceased at about 7.45 pm, upon which he went to the LNJP Hospital, and at the hospital he got to know about the death of his brother. He identified the body at the mortuary and thereafter post mortem was conducted after which he received the body. He found the gold bracelet, one heavy chain of gold and another gold chain with locket „V‟ and the purse of his brother were missing. Accused Deepak @ Chowda, Vinod @ Gola, Bhisham @ Chintoo and Deshraj were absconding from their houses from the day of incident. In his cross examination, he stated that he had received information about the incident through Gopal Krishan Aggarwal, and thereafter, he called his partner Rishipal to reach at the spot as he himself was far away.
20. Deepak Sharma (PW-46) deposed that on 29th September, 2007, between 7.45-8 pm, he received a call from his younger brother Praveen that Vijji Chacha (deceased) was shot dead near Arya Samaj Mandir. Accordingly, he rushed to the spot and saw 3-4 persons carrying deceased in their hands and they stopped a motorcyclist and took the deceased to Hamdard Chowk, from where he was taken to LNJP Hospital on a TSR, and he also accompanied Vijay in the TSR. At the hospital, the deceased was declared brought dead.
21. Inspector Anil Sharma (PW-25) who was the first IO in this case, deposed that on 29th September, 2007, at about 8 pm an intimation was received from PCR that one person had been shot dead at Arya Samaj Gali near Shiv Mandir which was recorded vide DD No.16A. SHO Insp. Giriraj Meena and Insp. Rajinder Dubey met him at the spot. At the spot, he saw blood on the side of the road and one empty cartridge was also found there, and on enquiry it was found out that someone had fired at one Vijay Yadav had been taken to LNJP Hospital, where Vijay was declared brought dead. One Deepak Sharma who had brought the deceased to the hospital met him at the hospital, and thereafter, he along with Deepak came back to the spot and prepared the site plan at the instance of Deepak (Ex.PW-25/E), where he seized the blood stained earth and earth control. Thereafter, on the next day at about 9-9.30 am, he visited the house of Abhay Yadav to investigate the matter, where he got to know that one Anju Gupta knew something about the incident and then he went to the house of Anju Gupta and recorded her statement under Section 161 CrPC. In his cross examination, he stated to have investigated the matter till 30th September, 2007. He stated that neither Abhay Singh nor Amar Singh told him that Anju Gupta told them that she had witnessed the incident.
22. Insp. Rajinder Dubey (PW-11) deposed that the investigation in the present case was assigned to him on 01st October, 2007 and remained with Crl.A.Nos.553/2020 & connected matters him till 09th October, 2007, after which it was transferred to Crime Branch. In his cross examination, he stated that he had no knowledge regarding any eye witness namely Anju Gupta and Dheeraj till the investigation was with him i.e. till 09th October, 2011, and he did not issue any notice under Section 160 CrPC to these eye witnesses. He further stated that till the investigation was with him, no member of the family of the deceased came to him to give any statement against any of the accused persons in this case.
23. Insp. K.G. Tyagi (PW-68) deposed that on 25th November, 2007, he received an information that Bhisham @ Chintu and Vinod @ Gola was apprehended by Special Team of Crime Branch at Prashant Vihar, and he accordingly, arrested both the accused persons. On 06th December, 2007, accused Bhisham got recovered one mobile set from the pocket of the cover on the fridge from the room of the house of the accused (Ex.PW-62/J). Thereafter, on 07th December, 2007, he arrested accused Gopal Krishan Aggarwal and Rishipal @ Pappu who were present at the crime branch office. Thereafter, on secret information, accused Praveen Koli was arrested on 10th January, 2008 near the metro entry gate of Kashmere Gate Metro station. On 28th January, 2008, he received an information regarding arrest of accused Hitender @ Chhotu by Special Team, Crime Branch, Prashant Vihar in FIR No. 15/2008, accordingly he went there and arrested the accused Hitender in the present case. On 30th January, 2008, he received an information that accused Pramod @ Pammi was arrested by Special Team, Crime Branch at Prashant Vihar in FIR No. 40/2008, and accordingly he arrested the accused Pramod on 31st January, 2008. On 1st February, 2008, accused Hitender took them to his house at F-440, Ram Park Extn., Loni, Distt. Ghaziabad, UP and got recovered a gold chain kept in a polythene bag Crl.A.Nos.553/2020 & connected matters inside the cooler in the tank, which was seized vide memo Ex.PW-62/Z[2]. Thereafter, on 04th February, 2008, on a secret information, the accused Deshraj @ Desu was apprehended from near the Zakir Hussain College and was arrested. On 20th February, 2008, accused Ashok Jain came to his office pursuant to a notice issued and after interrogation, he arrested the accused. During investigation, he became aware that accused Dimple Tyagi was killed in a police encounter and he had taken, NBWs from the court regarding absconding accused persons Deepak @ Chauda, Kishanpal @ Fauzi and Praveen @ Jojo. Thereafter, he filed the chargesheet as the period of 90 days was to expire and thereafter on 28th May, 2009, upon secret information he apprehended accused Deepak @ Chauda from near Sarvodaya School, A-Block, Sector-16, Rohini and was subsequently arrested. Accused Deepak @ Chauda got one bracelet of the deceased recovered from Chaudhary House at Balabala, Dehradun. Accused Praveen @ Jojo and Kishanpal @ Fauzi could not be traced and were declared proclaimed offender by the court.
24. Puneet Puri (PW-64) prepared the forensic report Ex.PW-64/A and Ex.PW-64/B. In his report Ex.PW-64/A, he examined one broken metallic chain with brown stain mark recovered from Hitender @ Chhotu and opined that gunshot residue particles were detected around the edges of broken portion of metallic chain. Vide Ex.PW-64/B, he examined one 9 mm fired cartridge lifted from crime scene, three deformed bullets, one swab of right hand and one swab of left hand of the deceased. It was opined that the 9mm cartridge case is a fired empty cartridge; the deformed bullets corresponds to the bullet of.32” cartridge and are ammunition as defined under the Arms Act and no gunshot residue particles were detected on the swabs taken from Crl.A.Nos.553/2020 & connected matters the right hand and left hand of deceased (seized vide Ex.PW-5/A). As per the FSL report Ex.PW-65/C and Ex.PW-65/D, human blood was detected on the golden chain and the same was found to belong to „B‟ group which is same as that of the deceased.
25. In his statement under section 313 CrPC, appellant Deshraj @ Desu admitted to have refused the TIP proceedings but furnished no explanation for the same. He stated that it was a false case and that he was innocent and falsely implicated.
26. Appellant Kishanpal @ Fauzi in his statement under Section 313 CrPC stated that he was lifted from his home and handed over to the Crime Branch, he denied having made any disclosure statement and also stated that he refused to participate in the TIP proceedings as he was shown to the witnesses prior to the TIP. He stated that he was falsely implicated and was innocent.
27. Appellant Hitender @ Chhotu in his statement under Section 313 CrPC stated that it is a false case, he is innocent and has been falsely implicated. He stated that neither any disclosure statement was made by him, nor any Santro car was seized at his instance and that the said car has no link to the present case. He further stated that he refused the TIP as his face was shown to the witnesses at PS Chanakyapuri.
28. In his statement under section 313 CrPC, appellant Deepak @ Chauda stated that no bracelet was recovered at his instance and that it was planted to create incriminating evidence. He stated that it is a false case created against him and that he was innocent.
29. Appellant Praveen Koli in his statement under Section 313 CrPC stated that no gold chain or locket was recovered at his instance and they Crl.A.Nos.553/2020 & connected matters were planted to create incriminating evidence against him. He stated that it is a false case created against him and that he was innocent.
30. The main challenge to the case of prosecution by the appellants is that the testimonies of the two eye witnesses Anju Gupta (PW-1) and Dheeraj Sharma (PW-2) are not reliable in view of their conduct in neither informing the police nor taking the deceased to the hospital. From the evidence on record, it is clear that both these eye witnesses were present near the place of incident at the relevant time. The contention on behalf of the appellants that the conduct of the eye witnesses was unnatural in not informing the police after witnessing the alleged incident deserves to be rejected. Anju Gupta categorically deposed that she was not carrying her mobile phone at the time of incident, while, Dheeraj Sharma deposed that he did not have any mobile connection at that time and thus, they could not have informed the police. However, Anju Gupta rushed to the office of the deceased and informed Billu (Niranjan) (PW-10) and Pramod (PW-4) about the incident. Pramod and Niranjan both corroborated the version of Anju Gupta of informing them about the incident.
31. Challenge is also laid to the testimony of this witness on the ground that from the cross examination of Insp. Anil Sharma, it is evident that he did not meet Anju Gupta on 30th September, 2007, thus, her statement under Section 161 CrPC was not recorded on that day. It may be noted that Insp. Anil Sharma, the first I.O., in his examination-in-chief stated that while on way for post mortem examination, he went to the house of Abhay Yadav on 30th September, 2007, where it was revealed that the incident was witnessed by Anju Gupta, so he recorded her statement. However, in his cross examination, when he was confronted with the DD entry relating to his Crl.A.Nos.553/2020 & connected matters departure to the hospital for post mortem, he stated that he did not meet Anju Gupta in the morning of 30th September, 2007. Insp. Anil Sharma was examined in the Court after a time gap of five years, however, Anju Gupta who was examined as PW[1] on 15th November, 2010. Even in extensive cross examination, she was firm on her stand that she was examined by the I.O. in the morning of the day after the incident. Hence, the contention that statement of Anju Gupta recorded under Section 161 CrPC is ante-dated, deserves to be rejected.
32. From the testimonies of Pramod and Niranjan, it is also clear that at about 7.15 pm, appellant Praveen came to the office of deceased and took the deceased with him. Further, father of the deceased i.e. Amar Singh Yadav (PW-19) also deposed to have seen the appellants Praveen, Deepak and Bhisham accompanying his son/deceased at the same time i.e. around
7.15 pm. Thus, from these depositions it is evident that the deceased was last seen with the appellants Praveen, Deepak and Bhisham.
33. Further, Anju Gupta categorically deposed that during investigation, IO/Insp. K.G.Tyagi showed her about eight to ten photographs out of which she was able to identify Bhisham, Vinod and Deepak as the persons who were present at the spot at the time of the incident. It is apparent from the evidence on record that Bhisham and Vinod were arrested on 25th November 2007 vide Arrest Memo Ex.PW-40/B and C respectively and Deepak was arrested on 28th May 2008 vide Arrest Memo Ex.PW-41/C; i.e., all these three appellants were arrested after they were identified by eye witness Anju through photographs showed to her by the investigating officer.
34. It also emerges from the record that all the appellants refused to undergo judicial TIP. However, during the trial, both Anju Gupta and Dheeraj Sharma identified all the appellants i.e. Praveen, Vinod Kumar, Deepak, Bhisham and Deshraj as the person who had surrounded the deceased, and appellants Hitender and Kishanpal as the persons having pistols in their hands, with which the deceased was thereafter shot.
35. Further, the brother of the deceased, Abhay Singh Yadav (PW-14) deposed before the Court that when he saw the dead body of his brother, he found one gold bracelet, one gold chain and another gold chain with locket „V‟ and the purse of his brother missing. SI Jai Singh (PW-41) proved the recovery of a gold chain with locket from the appellant Bhisham from the first floor of his room from the container of tea leaves. This gold chain was identified by Abhay Singh Yadav before the learned Metropolitan Magistrate at Tis Hazari (Ex.PW-12/E). ASI Rajbir Singh (PW-62), SI Mukesh (PW-61) and Inspector K.G.Tyagi (PW-68) proved the recovery of a blood stained gold chain with gunshot marks from a polythene bag inside the cooler in a tank at his house from appellant Hitender. Furthermore, HC Omender Kumar (PW-35) and Insp. Sanjeev Kumar (PW58-A) proved the recovery of a bracelet from appellant Deepak @ Chowda from Chaudhary House at Dehradun. This bracelet was also identified by Abhay Singh Yadav (PW-14) in judicial TIP (Ex.PW61/E). Recovery of these personal belongings of the deceased and absence of any cogent explanation regarding the same, is further corroborative evidence to connect these appellants with the crime.
36. It was the case of the appellants that the eye witness Anju lived in a tenanted premises owned by Abhay Singh Yadav, and that the other eye witness Dheeraj Sharma was a neighbor and family friend of Abhay Singh Yadav and therefore, both these witnesses are interested witnesses and Crl.A.Nos.553/2020 & connected matters hence, unreliable. Hon‟ble Supreme Court in the decision reported as AIR 1953 SC 364 Dalip Singh Vs. State of Punjab, observed as under:
37. Even if the contention of the appellants that these eye witnesses were known to the deceased‟s family and would be „interested‟ is to be accepted, there is no fact on record to show any enmity or any other reason for these two eye witnesses to falsely implicate the appellants. The two eye witnesses were not the family members of the deceased. One was a tenant and the other, a neighbour. Thus, they cannot be categorized as witnesses whose feelings would run high or that they intend to take grudge, and thus, would falsely implicate the appellants.
38. It is well settled position of law that conviction can be based upon the testimony of a single eye witness if such eye witness is reliable. In the decision of the Hon‟ble Supreme Court reported as (1993) 3 SCC 282 Anil Phukan Vs. State of Assam, it was observed as under: “Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eye-witness is a Crl.A.Nos.553/2020 & connected matters wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eye-witness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then, the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect”.
39. It was also the contention of the appellants that the prosecution failed to establish any motive for the alleged crime, as also noted in the impugned judgment. Learned counsel for the appellant Kishanpal also contended that motive is significant if the ocular testimony is unreliable and reliance was placed on the decision in Badam Singh (supra). In the present case, as aforesaid, the ocular version of the eye witnesses is found reliable and is corroborated by the evidence of other witnesses who last saw the deceased with some of the appellants, and also from the recoveries of the articles of the deceased at the instance of some of the appellants. Therefore, even if the prosecution has not been able to prove the motive of crime, the same will not dent the case of the prosecution. Even otherwise, it is a well settled position of law that in criminal trials, motive is not necessary to be established, though if established, may aid the prosecution in proving its case. Thus, the case of the prosecution cannot be held to be not proved merely because the motive to commit the offence has not been proved by the prosecution.
40. Reliance placed on the decision in Chhatar Pal (supra) can also not be of any avail to the appellant Kishanpal as it was not his mere Crl.A.Nos.553/2020 & connected matters abscondance but the other evidences including the eye witnesses‟ account of him carrying a pistol in his hand and thereafter shooting the deceased with the same, all of which form the basis of his conviction.
41. It was also contended on behalf of the appellants that the victim himself and also his brother had criminal records against them. However, it is incomprehensible as to how the criminal records of the victim, if any, would aid the case of the appellants.
42. Although in the present case, the weapon of offence i.e. the pistol has not been recovered, however, the same cannot benefit the appellants when direct evidence in the form of two eye witnesses is available. Hon‟ble Supreme Court in the decision reported as 2022 SCC OnLine SC 1424 State through the Inspector of Police Vs. Laly @ Manikandan & Another Etc. held; “7.……Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted.….”.
43. Learned counsels for the appellants have also contended that the prosecution has not brought on record the CDRs of the appellants which would have proved that they were not present at the spot. The explanation of the appellants is that of false implication and for their defence of alibi, it was for the appellants to prove the same, for which no evidence whatsoever was ever led by the appellants. Further, if the appellants‟ CDRs were exculpatory qua them or would have pointed to their innocence, in the Crl.A.Nos.553/2020 & connected matters absence of prosecution collecting the same, the appellant could have also requested for collection of this evidence, to prove their stance. Thus, this contention would also not aid the case of the appellants.
44. In view of the discussion aforesaid, this Court finds no infirmity in the impugned judgment of conviction and order on sentence. Appeals are accordingly dismissed.
45. Copy of the judgment be uploaded on the website of this Court.
(MUKTA GUPTA) JUDGE (ANISH DAYAL)
JUDGE MARCH 03, 2023/‘vn’