Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 1 of 38 T* IN THE HIGH COURT OF DELHI % Judgment reserved on : 04.05.2009 Judgment delivered on: 25.05.2009 CRL. APPEAL NO.957/2008 SUNIL NAYAK …Appellant Through : Mohd. Salim, Advocate and Mohd. Tarbez, Advocate. versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate. CRL. APPEAL NO.1008/2008 SHESH BAHADUR PANDEY …Appellant Through : Mr.Anupam S.Sharma, Advocate. versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate. CRL. APPEAL NO.1012/2008 HIMANSHU @CHINTU …Appellant Through : Mr.K.B.Sinha, Senior Advocate with Mr.Ranbir S.Yadav, Advocate. versus STATE …Respondent Through : Mr. Pawan Sharma, Advocate. CRL. APPEAL NO.1041/2008 RAMESH @DUDHIA …Appellant Through : Mr.Ratnakar Dash, Senior Advocate with Mr.Anuvrat Sharma, Advocate. versus STATE …Respondent Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 2 of 38 Through : Mr. Pawan Sharma, Advocate. CORAM: HON'BLE MR. JUSTICE PRADEEP NANDRAJOG HON'BLE MS. JUSTICE ARUNA SURESH 1. Whether reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporter or not? Yes 3. Whether judgment should be reported in Digest? Yes : PRADEEP NANDRAJOG, J. 1. On 8.7.2006, at about 9:34 PM information was received at the police control room, recorded in the entry form Ex.PW-3/A, noted by HC Dharampal PW-3, from the mobile number 9210325051 wherein Rohit PW-7 informed about a person having been shot at A-450 Shastri Nagar. HC Dharampal forwarded the said information to PS Sarai Rohilla, where ASI Dhyan Singh PW-2, recorded DD No.31/A, Ex.PW- 2/A, at about 9:46PM. 2. On receipt of copy of Ex.PW-2/A SI Subhash Chand PW-24, along with HC Vijay Pal PW-19 and Const.Sudhakaran, reached the spot. At the spot they met Raju PW-11, the brother of the person injured and SI Subhash Chand recorded his statement Ex.PW-11/A as per which Raju stated that at around 9.20 PM, when his brother Murari with his friends Rohit and Monty and he i.e. Raju were standing in front of Ahuja Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 3 of 38 Clinic, Himanshu, who is also a resident of A Block, came on his motorcycle and threatened Murari that he would kill him. That Himanshu went away but returned after 5-10 minutes with other persons on motorcycles. These included Ramesh Dudhia a resident of E-2 Block Shastri Nagar, Shesh Bahadur Pandey a goon of Bharat Nagar, and Fundy a resident of J.J.Colony, Wazirpur. That thereafter Himanshu pointed out Murari to Ramesh Dudhia, who, on being instigated by Pandey and Fundy, shot at Murari, with a country made pistol and thereafter all fled away. That Rohit and Monty had removed his brother to Paramarth Hospital in a TSR where after first aid given to him, in a PCR van his brother was removed to Hindu Rao Hospital. That Chintu i.e. Himanshu used to tease the girlfriend of his brother Murari. 3. On being informed that the injured had been taken to Hindu Rao Hospital, leaving Const. Sudhakaran at the spot, SI Subhash Chand and HC Vijay Pal proceeded to Hindu Rao Hospital where they learnt that the injured Murari had died. SI Subhash Chand collected his MLC Ex.PW-30/A which recorded that Murari was „brought dead‟. At the hospital itself, SI Subhash Chand made an endorsement Ex.PW-24/A on the statement Ex.PW-2/A of Raju and handed the same to HC Vijay Pal for the registration of an FIR. HC Vijay Pal returned to the Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 4 of 38 police station and handed over the statement and the endorsement to ASI Dhyan Singh PW-2 who registered the FIR Ex.PW-2/B at 23:50 hrs. 4. SI Subhash Chand returned to the spot from the hospital, where he met Inspector Vikram Singh PW-35, who had in the meantime also reached the spot and since it was a case of murder, had taken over the investigation. 5. Inspector Vikram Singh went to Hindu Rao Hospital at around 2.00-2.30 AM, where he met Rohit and Sukhvinder @Monty. He took them to the police station where he recorded the statement Ex.PW-7/A of Rohit and the statement Ex.PW-8/A of Sukhvinder under Section 161 Cr.P.C. as per which statements, the two narrated substantially the same facts implicating the appellants as were already disclosed by Raju in his statement Ex.PW-2/A. 6. After recording the statements of Rohit and Sukhvinder, Inspector Vikram Singh returned to the spot where the crime was committed and summoned a photographer Rajinder Soni PW-15, who took photographs Ex.PW-15/1 to Ex.PW-15/4 of the spot; negatives whereof are Ex.PW-15/5 to Ex.PW-15/8. Inspector Vikram Singh lifted blood, blood stained soil and earth control from the spot as recorded in the seizure Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 5 of 38 memo Ex.PW-24/B. He also prepared a rough site plan Ex.PW- 35/1, at the instance of Raju noting thereon spot „A‟, spot „B‟ and spot „C‟ where blood was lifted, the deceased was sitting with his friends and his brother and where a street light was installed, respectively. 7. The dead body of Murari which had been seized at Hindu Rao Hospital on the intervening night of 8th and 9th July, 2006 was sent to the mortuary of the hospital and on 9.7.2006 Dr.C.B.Dabbas PW-5 of Hindu Rao Hospital conducted the post- mortem on the dead body. On the post-mortem report Ex.PW- 5/A Dr.C.B.Dabbas recorded the following injury:- “One firearm entry wound round in shape, measuring 2.2 X 2.2 cm and surrounded by collar of abrasion in area of 3x3 cm located over the left side lateral; aspect of chest, 19 cm outer to midline and 12 cm outer to left nipple and 120 cm above left heel. The wound is surrounded by singeing blackening and tattooing.” 8. Dr.C.B.Dabas recorded on the post-mortem report the trajectory of the wound from left to right and upwards and that the injury was a fire arm entry wound of ammunition discharge from a rifled firearm fired from a point blank range. Dr. Dabbas recovered a copper coated lead tipped bullet from the body of the deceased. After the post-mortem, along with the report, the clothes of the deceased and the blood sample of the deceased on a piece of gauze, the bullet was handed Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 6 of 38 over to Inspector Vikram Singh who took possession of the same as recorded in the memo Ex.PW-24/C. 9. Accused Himanshu was apprehended from the red light at Chowki No.2, K.D. Marg on 9.7.2006 at about 10.00 PM. 10. On 16.7.2006, information was received by Inspector Vikram Singh that accused Sunil Nayak @ Fandi was apprehended and remanded to judicial custody at Tihar Jail in another case. After moving an application and seeking permission from the Court of the learned Metropolitan Magistrate, police custody of Sunil Nayak was obtained by Inspector Vikram Singh and Sunil Nayak was formally arrested in the instant FIR on 18.7.2006. 12. Accused Ramesh Dudhia was arrested on 26.7.2006 in another case by Inspector M.H. Khan, PW-23 of PS Gulabi Bagh. On being interrogated by Inspector M.H.Khan, he made a disclosure statement Ex.PW-6/A, wherein he disclosed about his involvement in the murder of Murari and inter-alia stated that he had thrown the desi katta with which he had shot Murari in a gutter at AB Block Shastri Nagar. The said information was conveyed to Inspector Vikram Singh who took custody of Ramesh Dudhia on 26.7.2006 and the same day Ramesh Dudhia led Inspector Vikram Singh to a gutter (ganda nala) at AB Block Shastri Nagar and pointed out a place, from Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 7 of 38 where a country made pistol Ex.P-21/1 was recovered and Inspector Vikram Singh seized the same in the presence of SI Subhash Chand, as recorded in the seizure memo Ex.PW-24/J. 13. Accused Shesh Bahadur Pandey was arrested by the Special Cell of Delhi Police on 16.8.2006 and said fact was conveyed to Inspector Vikram Singh who took the necessary steps to obtain the police custody of Shesh Bahadur Pandey and managed to have the same only on 16.10.2006, on which date Shesh Bahadur Pandey was formally arrested in the instant case. 14. On 4.9.2006 SI Mahesh Kumar PW-25, under the instructions and instance of SI Subhash Chand PW-24 prepared the site plan to scale Ex.PW-25/A. 15. Inspector Vikram Singh sent for ballistic examination, two sealed parcels, one containing the country made pistol Ex.P-21/1 recovered at the instance of accused Ramesh Dudhia on 27.7.2006 and the other containing the bullet recovered from the body of the deceased at the time of the post-mortem and handed over to Inspector Vikram Singh as per seizure memo Ex.PW-24/C. Shri K.C.Varshney PW-31, gave a report Ex.P-31/A that no opinion could be given whether the bullet was fired from the country made pistol Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 8 of 38 Ex.P-21/1 because the individual characteristic of striations detected on the bullet were insufficient for comparison. 16. It is not clear as to on what basis co-accused Sunil Kumar (who has been acquitted by the learned Trial Judge) became a suspect. But it is on record that he was arrested on 9.11.2006. 17. Five accused i.e. the appellants and Sunil Kumar were charged for having committed an offence punishable under Section 302/34 IPC i.e. for having murdered Murari in furtherance of their common intention. Appellant Ramesh Dudhia was also charged for the offence punishable under Section 27 of the Arms Act. 18. When the trial commenced, a criminal writ petition registered as Crl.W.P. No.350/2007, certified copy whereof is Ex.PW-7/A was filed in this Court under the signatures of Rohit Kumar PW-7 and his father Vijay Kumar, in para 4 and 5 whereof it was pleaded as under:- “4. That on 8.7.2006 a murder has taken place near the house of the petitioner and petitioner No. 2 as a responsible law abiding citizen became witness to the murder which has rather resulted in suffering, harassment, murderous assault and the police instead of protecting the life and liberty of the petitioners in collusion with the associates of the accused in murder case harassing the petitioners not to depose in the Court in the said murder case against the accused persons. The police has registered the FIR No. 289/2006 under Section 302/34 IPC at Police Station Sarai Rohilla. The petitioner No. 2 is a vital eye witness of the murder case Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 9 of 38 in which the known criminal of the area namely Ramesh Dudhia and one Pandey are the main accused. Copy of the FIR with its true English translation is annexed as ANNEXURE-A to this petition. 5. That the associates of the above said persons namely Jeetu etc. who are known bad elements of the area have thereafter started extending serious alarming threat to the petitioner No. 2 with dire consequences in case petitioner No. 2 deposes in the Court in the said murder case. Initially the petitioners have avoided such threats presuming that they are safe in the hands of the police but later on the treats perception increased of even kidnapping and murder of petitioners. These facts were orally informed to the local police who ensured the petitioners of their safety.” 19. Prayer made in the writ petition was to provide security for Rohit Kumar and his father Vijay Kumar as they claimed that they were being threatened by the associates of appellant Ramesh @Dudhia and appellant Shesh Bahadur Pandey. It was pleaded that Rohit PW-7 is a vital eye-witness to the murder of Murari and that Ramesh @Dudhiya and Shesh Bahadur Pandey are known criminals of the area. 20. Needless to state, the prosecution hinged, for success, on the testimony of Rohit PW-7, Sukhvinder PW-8 and Raju PW-11 who claimed to be eye-witnesses for the reason the prosecution could gather no other incriminating evidence against the accused; the report of the ballistic expert pertaining to the country made pistol which was recovered pursuant to the disclosure statement of appellant Ramesh Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 10 of 38 @Dudhia did not link the same to the bullet which was recovered from the body of the deceased due to insufficient characteristics of striations. Thus, no useful purpose would be served in noting the testimony of the witnesses of the prosecution save and except the testimony of Dr.C.B.Dabbas PW-5, Rohit PW-7, Sukhvinder PW-8, Raju PW-11, HC Vijay Pal PW-19, SI Subhash Chand PW-24 and Inspector Vikram Singh PW-35; more so for the reason, as would be evidenced herein after, arguments urged during hearing of the appeal require the testimony of said witnesses to be considered. 21. Dr.C.B.Dabas PW-5 deposed that he had conducted the post-mortem of the deceased on 9.7.2006 and the post- mortem report Ex.PW-5/A was prepared by him. Relevant for purposes of consideration of submissions made by learned counsel for the appellants is the statement made by Dr.C.B.Dabas during cross examination, in reference to the post-mortem report where it was mentioned that 300 gms of semi-digested food was present in the stomach of the deceased, that this evidenced the deceased having consumed food between 1½-2½ hours before his death. 22. Rohit PW-7 deposed that on 8.7.2006 at about 9- 9:30 PM he was on his way to his house on his motorcycle when he met Murari and Monty. The three started chatting. At Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 11 of 38 that time, accused Himanshu with another person came on his bullet motorcycle and threatened Murari saying “main tujhe maarunga”. Thereafter he went away. He i.e. Rohit asked Murari as to what had happened, but before Murari could answer, his brother Raju came to call him. At that time, Himanshu returned with 5-7 other boys on 4-5 motorcycles. Himanshu pointed at Murari and said “yeh tha”. Thereafter, one boy got down from the motorcycle and shot Murari. All persons fled immediately on their motorcycles. Thereafter, he i.e. Rohit called the PCR at No. 100. Raju, Monty and he arranged for a TSR and while Raju went to inform his parents, Monty and Rohit took Murari to the hospital. On the way, at Shakti Nagar red light they saw a PCR van and requested the PCR officials to accompany them. Murari was first taken to Parmath Hospital where they were asked to take him to Hindu Rao Hospital. At Hindu Rao hospital, Murari was declared brought dead. Police met them at the hospital, from where they i.e. Monty and he were taken to the police station where the police recorded their statements. 23. Rohit PW-7, correctly identified accused Himanshu in the court but as regards the other appellants as also the co- accused Sunil who has been acquitted, he did not identify them as those who had accompanied Himanshu on the date of Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 12 of 38 the incident. On being cross-examined by the learned Additional Public Prosecutor, he denied having stated to the police anything about the involvement of Ramesh Dudhia, Pandey or Sunil @ Fundi in the offence. He admitted that some time back his father and he had filed a Writ Petition before the Delhi High Court seeking police protection from the accused in the present case because on 10.12.2006 he had been beaten by one Jeetu and his associates and was threatened not to depose against the accused in the instant matter. He admitted that on 26.2.2007, his father was threatened by Jeetu and his associates to stop him i.e. Rohit from deposing in the court in the matter. He admitted that Ex.PW-7/A was a certified copy of the petition filed by him and his father. He denied that he told the police, as recorded in his statement under Section 161 Cr.P.C. that when Himanshu pointed out Murari, Fundy @ Sunil Nayak exhorted “mar saale ko goli” and thereupon Ramesh Dhudia fired a shot at Murari. 24. Since no submissions were urged at the hearing of the appeal with reference to the cross examination of PW-7, we do not note the cross examination of PW-7, save and except that the piercing cross examination by learned counsel for Himanshu, failed to dent the credibility of the testimony of PW-7. Needless to state, the witness did not implicate any Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 13 of 38 other co-accused in the commission of the offence. He simply stated that Himanshu was accompanied by many other persons and that the co-accused were not a part of the group. 25. Sukhvinder @ Monty PW-8, deposed that on 8.7.2006, at about 9.20 PM, he along with Rohit, Murari and Raju was standing in front of Ahuja Clinic when appellant Himanshu came on a motorcycle with another boy and threatened to kill Murari and went away. He returned after 5- 10 minutes with 7-8 other persons on 5/6 motorcycles. Himanshu pointed out Murari to one of the boys, who took out a revolver and fired a shot at Murari. Thereafter the said boys fled away. They called the PCR at number 100. Since the PCR did not come within sometime, Rohit and he i.e. Sukhvinder shifted Murari in a TSR to be taken to a hospital. On the way, they requested officials of a PCR van stationed at Shakti Nagar crossing to accompany them to Parmath Hospital. At Parmath Hospital they were told to remove the patient to Hindu Rao Hospital, where the doctors declared him brought dead. Thereafter they were taken to PS Sarai Rohila where his statement was recorded. 26. Since Sukhvinder did not implicate the other co- accused i.e. did not identify them as the ones who were present with Himanshu and deviated from a statement Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 14 of 38 recorded by the police under Section 161 Cr.P.C., he was got declared hostile and was cross examined by the learned Additional Public Prosecutor. On being cross examined by the learned Additional Public Prosecutor he denied that he told the police that Fundy @ Sunil exhorted saying “maar saale ko goli” at which Shesh Bahadur Pandey shot Murari. He denied that he told the police that he knew Ramesh Dudhia, Sunil @ Fundy and Shesh Bahadur Pandey. He was confronted with his statement under Section 161 Cr.P.C. where aforesaid was recorded. He denied having said so. 27. We note that the cross examination by counsel for accused Himanshu has failed to bring out anything to discredit the testimony of PW-8. On being cross-examined by counsel for the other accused, PW-8 deviated from his testimony in examination-in-chief wherein he had stated that apart from Murari, his brother as also PW-7 and he were present in front of Ahuja Clinic when Himanshu came with a boy on a motorcycle and threatened to kill Murari. In cross examination he stated that Raju was not present at that time and that Raju came soon after said words were spoken and that he was present when the second visit was made by Himanshu with his other friends. He also stated that he had met Raju at the Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 15 of 38 police station and that Raju‟s statement was recorded at the police station. 28. Raju PW-11, deposed that on 8.7.2006 at about 9.15-9.20 PM, he along with his brother Murari and his friends Rohit and Monty were standing in front of Ahuja Clinic, when appellant Chintu (Himanshu) with one more person came on his motorcycle and threatened to kill Murari. That Chintu went away and returned after 5-10 minutes, with 5/6 other persons on motorcycles. Himanshu pointed out Murari to appellant Ramesh Dudhia. Appellants Shesh Bahadur Pandey and Fundy instigated Ramesh Dudhia by saying „Maar saley ko‟. Thereupon appellant Ramesh Dudhia took out a pistol (katta) from his right pant pocket and placing it on the left chest of Murari fired a shot at him. Thereafter they all ran away from the spot. Monty and Rohit took Murari to the hospital in a TSR. He i.e. Raju, telephoned and informed the police. His statement Ex.PW-11/A was recorded in the police station on the same night. 29. On being cross-examined he stated that on the day of the incident his brother Murari had returned home at around 9 PM. While Murari was waiting for the food to be cooked, somebody called him outside. He went outside without eating his food. After 5/7 minutes their mother sent him to call Murari Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 16 of 38 as food had been cooked. That Ramesh Dudhia had fired at Murari while sitting on the motorcycle which was stopped across Murari and that the bullet was fired from the right side to the left on the left side of the chest. That he had called the police from an STD booth. That the police met him at the STD booth and from there took him to the spot. From the spot he was taken to the police station. His complaint was recorded at the spot. That he did not go to the hospital with his brother as he was to make the call to the police. That he had signed all the documents in the Police Station. 30. HC Vijay Pal PW-19 deposed that on 8.7.2006, on receipt of copy of DD No.31A, at about 9.46 PM, he accompanied SI Subhash Chand to the spot which was outside Ahuja Clinic. They found a boy named Raju who informed that his brother had been shot at. At the spot, SI Subhash Chand recorded the statement of Raju. Leaving behind Const.Sudhakaran, he and SI Subhash Chand left for Hindu Rao Hospital where the IO obtained the MLC of Murari and prepared the rukka and sent him with the rukka for registration of the FIR. After registration of the FIR he returned to the spot with a copy of the FIR and handed over the same to Insp. V.S.Rana, the SHO of the police station who had reached the spot. Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 17 of 38 31. With respect to the cross examination of HC Vijay Pal, the only thing worthwhile to note is that he stated that he does not remember whether he had stated before the IO that the tehrir was recorded before he and SI Subhash Chand left the hospital. We note that as a matter of fact, in his statement recorded by the IO, HC Vijay Pal has stated that the tehrir had been given to him at the hospital so that he could get the FIR registered. The same has been recorded by the learned Trial Judge within brackets at the place where aforesaid cross examination of the witness has been recorded. 32. SI Subhash Chand PW-24 deposed that on 8.7.2006 he was posted at Police Station Sarai Rohila, and on receiving a copy of the DD No. 31-A, he along with HC Vijay Pal reached the spot i.e. Khurana Tent wali gali in front of Ahuja clinic, A block, Shastri Nagar. Blood was found lying on the spot. They met Raju, brother of the injured at the spot and he recorded his statement Ex.PW-11/A. Raju informed them that the injured had been removed to Hindu Rao Hospital. He reached Hindu Rao Hospital and collected the MLC Ex.PW-30/A which declared the patient brought dead. He endorsed the statement of Raju and sent the same for registration of an FIR through HC Vijay Pal PW-19. Thereafter, the investigation of the case was conducted by Insp. Vikram Singh Rana PW-35. Crl.A.Nos. 957, 1008, 1012 & 1041/08 Page 18 of 38 33. In cross examination he denied that he never went to the hospital and took Raju to the police station. He denied that he fabricated everything at the police station. 34. Insp. Vikram Singh PW-35 deposed that on 8.7.2006, at about 9.40-9.45 PM he received information about the incident and reached the spot at H No A-450, Khurana Tent Wali Gali, Shastri Nagar in front of Ahuja clinic. There he learnt that the injured had been already