Delhi District CourtPs Narela vs Ashwani Khatri S/O Sh. Rambir Singh on 7 June, 2014IN THE COURT OF MR. UMED SINGH GREWAL
                ASJ/SPECIAL JUDGE (NDPS) 
           NORTH DISTRICT:ROHINI COURTS:DELHI
SC No.09/2010
FIR No.182/2009
PS Narelau/s 307/34IPC & 25 & 27Arms Act.
State

Vs.
1.       Ashwani Khatri s/o Sh. Rambir Singh
         R/o H. No.1052, Pana Paposian, 
         Narela, Delhi.
2.       Surender Khatri s/o Prahlad Singh
         R/o H. No.174, Nai Basti, Mammurpur,
         Delhi.
3.       Parveen s/o Charan Singh
         R/o 274, Village Khera Khurd, 
         Delhi.
4.       Jitender @ Billu s/o Prahlad Singh
         R/o H. No.174, Nai Basti, Mammurpur,
         Narela, Delhi.
                                         Date of institution :06­05­2010
                             Date when arguments concluded:06­06­2014
                           Date when Judgment pronounced:07­06­2014

Appearances:               Mr. Ashok Kumar, APP for the State.
                           Mr. N.K. Kadyan, counsel for accused Ashwani 
                           and  Surender.
                           Mr. Shaileder Dahiya, counsel for accused 


State v.Surender etc. 182/09                                           1 of32
                                            

                           Jitender and Parveen.

JUDGMENT1.                All four  accused have been  forwarded by police to face 
trialu/s 307/34IPC and 25 & 27Arms Act.2.                Facts  are that complainant Meenakshi was still awoken 
on   24­06­2009   at   10.30   PM   but   her   husband   Dharmender   @ 
Cheeku and children had slept. She was watching TV after locking 
the main door. A neighbouring boy told her that their two guests 
were standing on the gate. When she reached the main gate, she 
found two boys of the age group of 25­28 yrs. standing.   One of 
them was holding helmet in hand and other was wearing it on the 
head but front screen of the helmet was raised above face.   They 
told that they had come to meet her husband. When she told her 
husband that two boys had come to meet him, he asked to know 
their   names   and   addresses.     When   she   asked   the   boys   their 
particulars, they told that all disclosures shall be made to Cheeku. 
Her husband came to the main gate and Meenakshi went inside the 
house. She heard the noise of firing and reached the main gate and 
saw her husband on ground and blood was oozing out.   The two 
boys  were still firing on her husband. She pulled him inside the 


State v.Surender etc. 182/09                                           2 of32
                                           

house.  One  of  them  was exhorting  the  other  to  fire  at  her also. 
When   she   raised   noise,   her   nephew   Mandeep   also   came   there 
running and she and Mandeep took injured to SRHC hospital.On above facts, DD No.74 B was registered and investigation 
was   assigned   to   SI   Mahender   who   reached   the   spot   with   Ct. 
Madan.  Three fired bullets were lying on the spot and blood traces 
were going inside the room.    IO reached the hospital but found 
Dharmender @ Cheeku unfit for statement.     His wife Meenakshi 
was present. After recording her statement, rukka was handed over 
to Ct. Madan who got the case FIR registered.Later the police developed the case that actually there were 
four   assailants.     Accused   Surender   and   Ashwani   Khatri   were 
arrested   in   some   other   case   and   they   got   recovered   pistol   and 
revolver   respectively.     Injured   was   treated   at   Jaipur   Golden 
hospital also.  The doctor of that hospital removed a complete lead 
and   two   pieces   of   other   lead     and   handed   over   to   the   police. 
Three   fired   bullets   were   lifted   from   the   spot.   All   arms   and 
ammunition were sent to the FSL and ballistic division report is to 
the effect that bullets recovered from spot and lead recovered from 
the   body   of   injured   were   fired   from   the   revolver   and   pistol 


State v.Surender etc. 182/09                                                  3 of32
                                             

recovered from accused Surender Khatri and Ashwani Khatri.3.                Charge   u/s   307/34IPCwas   framed   against   all   four 
accused   on   19­05­2010.   Additional   charge   against   accused 
Ashwani Khatri and Surender Khatriu/s 25&27Arms Act  was 
framed to which all accused claimed trial.4.                In   order   to   substantiate   the   charge   prosecution 
examined   25 witnesses. Accused also examined four witnesses in 
defence. In fact DW1 is accused Jitender. DW3 Savita is sister of 
DW1 and wife of DW2 Praveen.5.                PW6   HC   Mukesh   Kumar   registered   DD   No.74   B   Ex.PW6/A on 24­06­2009 at 11.07 PM on receipt of information from 
wireless   operator   that   5­6   bullets   had   been   fired  at   a  person   in 
Rajeev Colony, Narela, Delhi.   PW2 SI Sanjay Kumar was incharge 
of   mobile   crime   team,   outer   district,   Delhi   on   24­06­2009.     He 
deposed that on that day at 11.20 PM, he alongwith photographer 
PW7 Ct. Sandeep and finger print proficient reached at the house 
of injured Dharmender at 12.20 AM and found SI Mahender Singh 
and other staff there.   They noticed blood stains from main gate 
upto   inside   the   house.   Three   empty   cartridges   were   also   lying 
there.       He   prepared   report   Ex.PW2/A.     Ct.   Sandeep   took   19 


State v.Surender etc. 182/09                                                   4 of32
                                          

photographs of the spot from various angles.  Only 17 photographs 
Ex.PW7/1 to Ex.PW7/17 are on the file.  Negatives are collectively 
Ex.PW7/18.PW14   Ct.   Madan   deposed   that   he   alongwith   PW25   SI 
Mahender Singh reached the house of injured   Dharmender.   He 
saw empty shells and blood lying on the spot. Recovered cartridges 
and lock were separately sealed and seized vide memo Ex.PW14/B 
and Ex.PW14/A respectively.  Before it, sketch Ex.PW14/C of the 
empty shells was prepared.  Blood lying at the spot was collected, 
put into plastic container and pullanda was prepared and seized 
vide memo Ex.PW12/C.  Blood stained floor and earth control were 
also seized, three pullandas were prepared which were sealed by 
the   IO   with   his   seal   and   taken   into   possession   vide   memo 
Ex.PW12/B.  He further deposed that he remained at the spot and 
PW25 went to the hospital but returned to the spot after some time 
and   handed   him   over   rukka   on   which   he   got   the   case   FIR 
registered.   He   further   deposed   that   site   plan   Ex.PW14/D   was 
prepared at the instance of wife of the injured.   He identified the 
three   empty   shells   as   Ex.P1,   Ex.P2   and   Ex.P3   respectively   and 
broken   VIP   lock   and   a   key   as   collectively   as   Ex.P4.     PW1   HC 


State v.Surender etc. 182/09                                                 5 of32
                                            

Ramesh Kumar registered the case FIR Ex.PW1/A on 25­06­2009 at 
12.45 AM  on  receipt  of  rukka  brought   by  Ct.  Madan  sent  by  SI 
Mahender Singh and made endorsement Ex.PW1/B on rukka.6.                PW11   Dr.   Rajesh   Kumar   of   SRHC   hospital   examined 
injured   Dharmender   medically   on   24­06­2009   at   11.30   PM   who 
was brought there with the gun shot injury. Blood was oozing from 
left eye.   He noticed   1.0 x 1.0 cm penetrating injury with dark 
margin   over   left   deltoied   region.   Second   injury   was   also 
penetrating and of the same size but was on left axillary region. 
Three penetrating injury was on left buttock. After preparing MLC 
Ex.PW11/A, the patient was referred to SR surgery.PW10 Dr.S. Basu deposed that  Dharmender was admitted in 
Jaipur Golden hospital on 25­06­2009 with the history of gun shot 
injury   on   left   shoulder,   chest,   abdomen   and  left   buttock.     Entry 
wounds   were   found   over   left   shoulder,   left   axillary     and   left 
buttock.     Left   eye   was   also   found   damaged.   Sigmoid­loop 
colostumy   was   done   on   26­06­2009   together   with   resection­
anastomosis  of small bowel. He further deposed that bullets were 
recovered from pelvis and left shoulder and patient was discharged 
on   04­07­2009.     Left   eye   was   removed   by   the   concerned   eye 


State v.Surender etc. 182/09                                                 6 of32
                                         

surgeon.  Discharge summery is Ex.PW10/A.
         PW23   Dr.   Deep   Kamal   was   working   as   Assistant   Medical 
Superintendent   of   Jaipur   Golden   hospital   on   29­06­2009.   He 
deposed that on that day a sealed parcel containing one complete 
lead and two pieces of lead were handed over to IO by him.  These 
lead pieces were taken out from the body of injured  Dharmender 
on 26­06­2009.7.                PW18 SI Jai Kishan,PW16 SI Narender,PW9 HC Rajbeer 
Singh,   PW19   HC   Bachchu   Singh   and   PW8   HC   Chand   Ram   are 
witnesses of FIR No.123/09 PS Crime Branchu/s 25Arms Act.   It 
is pertinent to mention that accused Surender Khatri and Ashwani 
Khatri were arrested first in that FIR.PW18 is the first IO of FIR No.123/09.  He deposed that on 
25­07­2009, on receipt of secret information that a sharp shooter 
namely Satyawan Sonu from Anoop Gang would come at Rithala 
Metro Station between 5.00­5.30 PM for committing a crime,   a 
raiding team of himself, HC Mahavir Singh, HC Bachchu Singh, HC 
Dinesh, Ct. Somvir, Ct. Swaraj, Ct. Ajeet, Ct. Manoj, HC Partap, HC 
Hanuman, Ct. Ramesh, HC Rajbir was formed.   They reached the 
spot in two private Santro cars and 


State v.Surender etc. 182/09                                            7 of32
                                         

asked   8­10   public   persons   in   the   way   to   join   the   forthcoming 
proceedings but they refused.  He further deposed that at 5.15 PM, 
two boys came from the side of Mangolpuri riding Bajaj Discover 
black   motorcycle  No.DL­8S­AA 5523.   They stopped the bike at 
Madhuban   Chowk  and started  waiting  for  someone.     They  were 
apprehended   at   5.30   PM   and   on   inquiry   they   disclosed   their 
identity as accused Surender @ Samunder and Ashwani Khatri. An 
English  pistol  of   7.62  bore  was recovered  from  the  right  dub of 
accused   Ashwani.   It   was   found   loaded   with   two   live   cartridges. 
Accused   Surender   Khatri   was   found   in   possession   of   .38   bore 
revolver and it was found loaded with five live cartridges. Sketch 
Ex.PW9/A of pistol and two live cartridges recovered from accused 
Ashwani was prepared and in the same way sketch Ex.PW9/B of 
the   articles   recovered   from   accused   Surender   was   prepared. 
Weapons   were   seized   vide   memo   Ex.PW9/C   and   Ex.PW9/D 
respectively.  Before it, they were put into plastic containers which 
were wrapped with doctor tape and sealed with the seal of JK.  FSL 
form was filled up and it was also sealed with the seal of JK and 
seal after use was handed over to HC Rajbeer.  He prepared rukka 
and sent HC Bachchu Singh   for registration of FIR.     He further 


State v.Surender etc. 182/09                                               8 of32
                                          

deposed that second IO SI Narender PW16 reached the spot and he 
produced all relevant papers, bike, pullandas and accused before 
him(PW16).       He   identified   the   .38   bore     revolver,   four   live 
cartridges and one empty shell recovered from accused Surender as 
Ex.P5   (revolver)   and   Ex.P6   (cartridges).     He   also   identified   the 
7.62 bore pistol as Ex.P7 and one live and one empty shell as Ex.P8 
saying   that   the   same   were   recovered   from   the   possession   of 
accused Ashwani.PW16   SI   Narender   is   second   IO,   he   recorded   disclosure 
statement   Ex.PW9/G   and   Ex.PW9/F   of   accused   Surender   Khatri 
and Ashwani Khatri respectively.  The bike was seized vide memo 
Ex.PW9/E.   He gave information about the arrest of accused and 
their disclosure statement regarding complicity in the present case 
to   PS   Narela   upon   which   DD   No.16   A   was   registered.   Also,   he 
handed  over  photocopies   of  all  relevant  documents to  IO  of  the 
case.PW9   HC   Rajbir   and   PW19   HC   Bachchu   Singh   associated 
themselves in all the investigation conducted by PW18 and PW16.PW8   HC  Chand  Ram   was posted   as  MHC(M)   in   PS   Crime 
branch   on     25­07­2009   when   SI     Narender   deposited   with   him 


State v.Surender etc. 182/09                                                9 of32motorcycle No.DL8S­AA­5523 and two pullandas having seals of JK 
and one FSL form.   He made entry No.369 Ex.PW8/A in register 
No.19.   Personal search articles were also deposited  on the same 
day by the same official.   He further deposed that on 10­08­2009, 
he handed over both sealed pullandas and FSL form to Ct. Rohtash 
vide   RC   No.232/21/09   Ex.PW8/B   for   deposit   in   FSL   and   after 
deposit,   Ct.   Rohtash   handed     him   over   receipt   acknowledgment 
Ex.PW8/C.8.                PW5 HC Suresh Kumar was acting as MHC(M) in PS 
Narela on 25­06­2009.   He deposed that on 25­06­2009 PW25 SI 
Mahender deposited with him five pullandas having seals of MSP 
and   he   made   entry   No.187   Ex.PW5/A   in   register   no.19.   SI 
Mahender again deposited two pullandas having seals of JGH on 
29­06­2009 and he made entry in register no.19. Two pullandas 
and FSL form having seals of JGH were sent to FSL through Ct. 
Gunwant   on   23­09­2009   vide   RC   No.132/21/09   Ex.PW5/C.     He 
further deposed that four pullandas and FSL form having seals of 
MSP   were   sent   to     FSL   Rohini   on   24­09­2009   through   Ct. 
Dharamvir vide RC No.135/21/09 Ex.PW4/A. PW4 HC Dharamvir 
also asserted that he took delivery of four pullandas having seals of 


State v.Surender etc. 182/09                                          10 of32
                                           

MSP   from   MHC(M)   on   24/09/2009   vide   RC   No.135/21/09 
Ex.PW4/A and deposited in FSL intact.PW17 deposed that on 23­09­2009, he collected two sealed 
pullandas   from   MHC(M)   and   deposited   the   same   at   FSL   Rohini 
vide RC No.132/21/09   and after deposit he handed over receipt 
acknowledgment   to   MHC(M).     These   witnesses   did   not   tamper 
with the case property until it was in their possession.PW24   Mr.   V.R.   Anand   is   the   Assistant   Director,   Ballistic 
division, FSL Rohini, Delhi.  He tendered into evidence FSL report 
as Ex.PW24/A. PW20 Mr. B.K.Singh, who was Addl. DCP­I, Outer 
District   on   27­04­2010,   deposed   that   he   accorded   sanctions 
Ex.PW20/A and Ex.PW20/B to prosecute accused Ashwani Khatri 
and Surender Khatri underArms Act.9.                PW17 Ct. Gunwant is  witness to the arrest of accused 
Praveen from his house on 26­06­2009 at 8.00 PM vide arrest and 
personal search memos Ex.PW17/A and Ex.PW17/B. Thereafter his 
disclosure statement Ex.PW17/C was recorded. PW21 Ct. Hardesh 
and   PW22   Ct.   Parveen   were   with   PW25   SI   Mahender   on 
02­08­2009 when accused Surender and Ashwani were taken out 
from   lockup   and   they   pointed   the   place   of   incident   and   joint 


State v.Surender etc. 182/09                                               11 of32
                                           

pointing out memo Ex.PW21/A was prepared.10.               PW25 SI Mahender is the sole IO.  He deposed that on 
24­06­2009 he alongwith Ct. Madan reached the spot.   He left Ct. 
Madan   at   the   spot   for   preservation   and   himself   went   to   SRHC 
hospital and found injured   Dharmender unfit to make statement 
and hence he recorded statement Ex.PW12/A of Meenakshi wife of 
Dharmender,   made   rukka   Ex.PW25/A   and   handed   over   to   Ct. 
Madan   who   got   registered   case   FIR   Ex.PW14/C.     He   prepared 
rough site plan Ex.PW14/D.  Sketch of three empty cartridges lying 
at   the   spot   was   prepared.     The   cartridges   were   put   into   plastic 
containers which were sealed with the seal of MSP and taken into 
possession vide memo Ex.PW14/D.   Broken lock and blood from 
two   places   were   taken   into   possession   vide   memo   Ex.PW14/A, 
Ex.PW12/B and PW12/C respectively.  He further deposed that he 
came to know the same evening that Dharmender had been shifted 
to Jaipur Golden hospital.  He reached that hospital and recorded 
his statement in which he disclosed that assailants were Surender, 
Ashwani, Parveen and Jitender. Then he deposed about the arrest 
of the accused.11.               PW3 Ankit deposed that injured Dharmender was his 


State v.Surender etc. 182/09                                                 12 of32
                                           

neighbour and he used to call him uncle.   There is only one house 
between their house.   He could not recollect the date or month of 
the incident but stated that next morning he came to know that 
someone had fired at Dharmender.  In cross­examination  by APP, 
he deposed that incident had taken place on 24­06­2009.   PW15 
Mandeep is the nephew of  injured  Dharmender.  He  deposed that 
he   had   come   to   the   house   of   his  mama    Dharmender   on 
24­06­2009. When  he was on the roof at 8.30­9.00 PM, he heard 
noise of firing  and when he came out he saw  Dharmender lying in 
a pool of blood.   He and PW12 took him to SRHC hospital from 
where was referred to LNJP hospital.   Next day he was shifted to 
Jaipur Golden hospital.PW12 Meenakshi is wife of PW13 injured  Dharmender.  She 
is   complainant   also.     She   deposed   that   on   24­06­2009   she 
alongwith her bhanja Mandeep was present at home. Her husband 
and children were also there.   She  heard noise from outside her 
house   at   10.30   PM   and   son   of   a   neighbour   told   her   that   their 
guests were standing outside.  The two boys were inquiring about 
her   husband.   She   told   them   twice/thrice   that   her   husband   had 
already slept but they were insisting to meet him claiming that they 


State v.Surender etc. 182/09                                                 13 of32
                                            

had   urgent   work.       She   went   inside   the   house   and   woke   up 
Dharmender   who   came   out   and   she   remained   inside   the   house. 
She heard noise from outside as if some crackers   had burst. She 
rushed immediately out and saw  Dharmender lying on the ground 
bleeding profusely from eyes and face.  He was dragged inside the 
house. The two boys who were earlier inquiring about her husband 
were   still   firing   at   him.     She   shouted   for   help   and   her  bhanja  
Mandeep came down stairs and thereafter the two boys fled away. 
Dharmender   was   taken   to   SRHC   hospital   where   her   statement 
Ex.PW12/A   was   recorded.     She   also   asserted   that   blood,   blood 
stained soil and blood stained floor were picked up by the   police 
from   her   house.   On   the   identity   of   the   accused   she   is   complete 
hostile as she deposed that it was dark outside and both boys were 
wearing helmet.   Face of one accused was fully covered with the 
helmet and face of other person was half covered and therefore she 
could not see them properly.PW13 Dharmender supported the prosecution in examination 
in chief.  He is complete hostile in cross­examination. He stated in 
the re­examination that he deposed the facts in cross­examination 
because he had arrived at compromise  with the accused as they 


State v.Surender etc. 182/09                                                  14 of32
                                            

had begged pardon from him and that he had forgiven them.12.               In   their  statements  u/s  313   Cr.  PC   accused  Surender 
Khatri   and   Ashwani   Khatri   denied   every   incriminating   material 
against them and claimed that they have been implicated falsely. 
Accused Jitender took the plea that he was not present in Delhi  in 
the night of incident and rather he was in village Sisoli, UP and he 
came to Delhi only on 25­06­2009 at 4.30 PM. Accused Parveen 
took the plea that on 24­06­2009 he was present in his home whole 
day   as   he   was   suffering   from   fever   and   typhoid.   They   claimed 
previous   familiarity   to   the   injured   and   his   wife   as   they   were 
residing in the same locality.13.               DW1   accused   Jitender   accused   deposed   that   he   was 
employed   in     Cluster   Telecom   Pvt.   Ltd.,   Company   from   August, 
2004 to June, 2010. The company was engaged in the business of 
installation   and   maintenance   of   Idea   Cellular   company   mobile 
towers.  He deposed that on 22­06­2009 he was detailed by general 
manager Mr. R.K. Yadav to install and repair tower in village Sisoli, 
district Muzaffar Nagar, UP.     He boarded the bus from Delhi on 
23­06­2009 and reached village Sisoli at 6.00 PM.     He remained 
there till 25­06­2009.   He left village Sisoli for Delhi at 10.00  AM 


State v.Surender etc. 182/09                                               15 of32
                                            

on 25­06­2009 and reached Delhi at 4.30 PM on the same day.  He 
further deposed that during those days he was using Idea post paid 
mobile phone No. 9911274747 for which company used to issue 
him bill after one month of usage. Mobile phone bill is Ex. DW1/D 
and   CDR   of   that   phone   from   15­06­2009   to   29­06­2009   are 
Ex.DW1/E (8 pages).   He further deposed that he and his sister 
DW3 Savita published a  notice in the newspaper titled as Punjab 
Kesri     dated   22­07­2009   for   disowning   their   brother   accused 
Surender   Khatri.   He   further   deposed   that   he   had   moved 
anticipatory bail application in the Sessions court on 31­10­2009 in 
which   he   had   annexed   certificate   of   employment   mentioning 
therein that he was present in village Sisoli in the night intervening 
24/25­06­2009.14.               DW2   accused   Parveen   Kumar   deposed   that   he   was 
engaged  in   poultry   farming  from   2001   to  2010.     Basically   he   is 
resident of village Khera Khurd but due expiry of his parent­in­laws 
and also due to fact that accused Jitender was   minor, he started 
residing   in   the   parental   house   of   his   wife   in   village   Narela.   He 
deposed that he was knowing injured and his wife Meenakshi as 
they were their neighbour in village Narela.   Their house was only 


State v.Surender etc. 182/09                                                   16 of32
                                           

3­4 houses away from his house.   He further deposed that he was 
summoned by two police officials in PS Narela on 26­06­2009 on 
the pretext that SHO wanted to inquire some facts from him about 
his brother­in­law accused Surender Khatri.  Accordingly he visited 
PS   on   26­06­2009   where   he   was   detained   saying   that   a   person 
namely Dharmender had been injured and in that case his name 
was also figuring.   He further deposed that co­accused Surender is 
his brother­in­law(sala) and police officials used to visit his  and his 
wife's house frequently to know whereabouts of Surender.   Due to 
this harassment, his wife Savita DW3 had filed a writ petition in 
the Hon'ble High Court of Delhi against the police.DW3 Savita deposed that accused Surender and Jitender are 
her real brothers and accused Parveen is her husband. In 2009 she 
used   to   reside   in   her   parental   H.   No.174,   Nai   Basti,   Panna 
Mammurpur,   Narela,   Delhi   and   PW13   Dharmender   also   used   to 
reside   in   their   vicinity   about   2­3   houses   away   from   her   house. 
They are related to her in line of ascendancy from parental side. 
She   further   deposed   that   her   husband   Parveen   fell   ill   before 
24­06­2009 and on 24­06­2009 also he was ill as he was suffering 
from   fever.     He   was   present   at   home   whole   day.       She   further 


State v.Surender etc. 182/09                                                 17 of32
                                            

deposed   that   Parveen   was   summoned   by   SHO   in   PS   Narela   on 
26­06­2009 on the ground that Dharmender @ Cheeku had been 
fired at by somebody and names of his brother and husband were 
figuring.   He was arrested on that very day.  She further deposed 
that her brother Surender's name had figured in a case in 2004 and 
due   to   that   reason   police   used   to   visit   her   house   frequently   to 
inquire about   him.   Due to frequent visits of the police, she and 
her brother accused Jitender disowned Surender and published a 
disownment   notice   in   Punjab   Kesri   on   22­07­2005   Ex.DW1/C. 
Also   she   had   filed   a   petition   in   the   High   Court   of   Delhi   for 
restraining Delhi Police from visiting her house frequently on which 
order  dated 20­07­2005 and 29­08­2005 Ex.DW2/C were passed 
by the High Court.DW4 Sagar Tirath  is resident of Panna Mammurpur, Narela, 
Delhi.  He was born there in 1974 and is residing in that area since 
then.  He deposed that Nai Basti and Rajiv Colony are the names of 
one   and   the   same   locality.     He   further   deposed   that   he   was 
knowing Meenakshi and Dharmender as they were also residing in 
Nai Basti. He further deposed that they were residing  in that very 
house   even   on   the   day   of   his   deposition.     He   knows   accused 


State v.Surender etc. 182/09                                                  18 of32
                                               

Jitender,   Parveen,   Savita   and   Surender.     Parveen   is   husband   of 
Savita and  was 'gharjamai' of the village. About accused Surender 
and Jitender, he deposed that they had a house in Nai Basti where 
Parveen   alongwith   his   wife   Savita   used   to   reside.     He   told   the 
distance between the house of PW12 and PW13 on one side and of 
accused on the other side as 3­4 houses.15.               APP   argued   that   case   is   hinging   on   the   testimony   of 
injured  witness PW13 Dharmender @ Cheeku.  He supported the 
prosecution case in examination in chief but he resiled completely 
from his previous statement in writing in cross­examination.  When 
he was was re­examined by the APP, he deposed that he had stated 
facts in cross­examination due to compromise with the accused as 
they had begged mercy from him and he had pardoned them.   APP 
further argued that re­examination of PW13 shows that  he did not 
support   the   prosecution   case     in   cross­examination   due   to 
compromise.     He argued that only examination in chief of PW13 
be taken into account.   APP also relied upon a strong circumstance 
against   accused   Ashwani   and   Surender   Khatri   that   .38   bore 
revolver     and   five   live   cartridges     were   recovered   from   accused 
Surender and a pistol of 7.62 bore and two live cartridges were 


State v.Surender etc. 182/09                                                     19 of32
                                            

recovered from accused Ashwani   by Special cell on 25­07­2009. 
IO of the present case had lifted three fired bullets from the spot. 
The   doctors   of   Jaipur   Golden   hospital   had   handed   him   over   a 
complete   lead   and   two   lead   pieces   removed   from   the   body   of 
PW13.  Fired bullets, lead and recovered arms were sent to the FSL 
and   FSL   report   is   to   the   effect   that   those   were   fired   from   the 
revolver and pistol recovered from accused Surender and Ashwani.On   the   other   hand   defence   counsels   argued   that     most 
competent witness about the identity of the accused was PW12 as 
she had more opportunity to see them but she could not identify 
them.     They   referred to the testimony of neighbouring boy PW3 
who also did not identify any of the accused.   Their contention is 
that   accused   Jitender   and   Parveen   had   no   occasion   to   support 
accused   Surender   and   Ashwani   as   they   had   already   disowned 
Surender and disownment notice was published in Punjab Kesri. 
About accused Jitender it is argued that on the night of incident, he 
was present in village Sisoli, District Muzaffar Nagar, UP.   About 
accused Parveen, it is argued that he was ill throughout the day on 
24­06­2009   and   ailing   person   cannot   participate   in   the   crime. 
About accused Surender and Ashwani it is argued that three fired 


State v.Surender etc. 182/09                                                   20 of32
                                           

bullets  were not seized from the spot by the IO.        It is further 
submitted that a complete lead and two lead pieces were recovered 
from the body of PW13 Dharmender by doctors of Jaipur Golden 
hospital on 26­06­2009 but those were handed over to the IO only 
on 29­06­2009.   Nobody knows in whose custody the lead were 
between   these   two   dates.     Last   reliance   is   on   the   testimony   of 
MHC(M) PW5 HC Suresh Kumar who has completely spoiled the 
prosecution case.16.      CASE AGAINST ACCUSED JITENDER & PARVEEN
         Criminal   justice   system   had   come   into   motion   on   the 
statement of PW12 Meenakshi.   In statement Ex.PW12/A she had 
stated   before   the   police   that   a   neighbour   boy   told   her   on 
24­06­2009 at 10.30 PM that two guests were standing outside her 
house.  In  evidence  also  she  deposed that  when  she  went  to the 
main gate, the two boys inquired about her husband Dharmender. 
She told them 2­3 times that her husband had already slept but 
they   were   insisting   to   meet   him   claiming   that   they   had   urgent 
work.    She went inside and woke up her husband who came out 
and she remained inside the house. She heard the noise of burst of 
crackers and when she came out she saw her husband lying near 


State v.Surender etc. 182/09                                                 21 of32
                                          

the main gate bleeding profusely  from eye  and  face and at that 
time two boys were still firing at him.  She further deposed that it 
was dark outside and both the boys were wearing helmets.  Face of 
one accused was fully   covered with the helmet and the face of 
other  accused  was  half  covered   and  therefore   she   could  not  see 
them   properly.     These   two   accused   have   been   identified   in 
examination   in   chief   by   PW13   Dharmender.     As   per   statement 
Ex.PW12/A,   she   had   three   occasions   to   see   the   accused.     First 
occasion was when she went to the main gate on the call of the 
neighbouring boy. Second time she went to the main gate when 
her husband asked her to inquire names and  addresses of two boys 
who   were   standing   outside   the   main   gate.     Third   occasion   was 
when she came out after hearing the sound of firing.  At that time 
also the two accused were firing at her husband.   Despite having 
three   opportunities,   she   could   not   identify   them.     It   has   been 
deposed by DW1, DW2, DW3 and DW4 that PW12 and PW13 were 
their neighbourers.  Moreover complainant and accused party are 
the ascendant of the common ancestor in parental line.   Accused 
Parveen was  gharjamai  residing in village  Narela Nai Basti(Rajiv 
Colony).     PW12   can   be   presumed   to   have   known   the   accused 


State v.Surender etc. 182/09                                               22 of32
                                            

Jitender   and Parveen even. Though she could not see their faces 
due   to   helmet,   she   could   have   identified   them   by   physique   and 
voice.  But she could not identify  them.  PW3 is also the neighbour 
of   accused   and   complainant   party.     He   also   could   not   identify 
them.It has been deposed by DW1, DW2 and DW3 that name of 
accused Surender  had  figured in a case in 2004 and police used to 
frequently   visit   their   house   to   inquire   about   him.       They   were 
feeling harassed due  to  frequent  visits of the  police.  In  order  to 
save themselves from such harassment, they had got published a 
public   disownment   notice   Ex.DW1/C   in   the   newspaper   titled   as 
Punjab   Kesri   dated   22­07­2005   circulated   in   the   area   of   Delhi. 
They were already scared of police as well as of accused Surender 
and that is why they took that extreme step.     So they cannot be 
expected to associate with the person who was already  disowned 
by  them four years ago.Case of accused Jitender Khatri is that he was not present in 
Delhi   in   the   night   of   the   incident.     His   claim   is   that   he   was 
employed   in   M/s   Cluster   Telecom   Pvt.   Ltd.,   engaged   in   the 
business of erection, installation and repair of telecom towers of 


State v.Surender etc. 182/09                                                   23 of32
                                          

Idea company.   On 22­06­2009 he was asked by the company to 
village Sisoli, District Muzaffar Nagar, UP for erection of a tower. 
He left Delhi for Sisoli on 23­06­2009 and returned Delhi at 4.30 
PM on 25­06­2009.   During that time he was using mobile phone 
No. 9911274747. Ex.DW1/D is the bill of the  phone showing that 
it was owned by accused Jitender Khatri.   CDRs from 15­06­2009 
to 29­06­2009 are Ex. DW1/E.   As per CDR, his phone left home 
territory i.e. Delhi and was in roaming from 23­06­2009at 12.34 
PM.   It   kept   on   roaming   till   25­06­2009.     It   entered   the   home 
territory only at 10.39 AM of 25­06­2009. From these CDRs it is 
conclusively proved that accused   Surender was not in Delhi in the 
night   intervening   24/25­06­2009.   Also   there   is   certificate 
Ex.DW1/B issued by   Cluster Telecom Pvt. Ltd. to the effect that 
Jitender Khatri was working in that company since August, 2004 as 
a technical engineer. It is further mentioned that from 22­06­2009 
to   26­06­2009   he   was  out   of   Delhi  for   technical   duties.   He   had 
taken   all   these   pleas   in   anticipatory   bail   application   Ex.DW1/A. 
The police should have verified those documents.   But it thought it 
unnecessary to go into the details and straightway charge­sheeted 
the accused.   So it is held that   Jitender was not in Delhi in the 


State v.Surender etc. 182/09                                                24 of32
                                            

night of the incident.Statement   u/s   161   Cr.   PC   of   PW13   Dharmender   was 
recorded on 25­06­2009 in the hospital.  In that statement he had 
alleged that accused Surender @ Samunder and Ashwani had fired 
at him and accused Jitender and Parveen had exhorted them to fire 
at him. He made a major improvement in examination in chief by 
deposing that accused Jitender had also fired at him.In view of above discussion, the police has failed to bring any 
evidence on record against accused Jitender and Parveen.17. CASE AGAINST ACCUSED SURENDER & ASHWANI KHATRI
                  Both   these accused have been identified by PW13 as 
the   same   person   who   had   fired   him.   His   cross­examination   was 
deferred and it was conducted on 25­06­20012 and on that day he 
completely   overturned   the   prosecution   case.       He   deposed   that 
when he came out in the night of 24­06­2009 at 10.00 PM, there 
was complete darkness outside.   He further deposed that the two 
boys   who   had   fired   at   him   were   wearing   helmet   and   hence   he 
could not see their faces.  He answered in affirmative that he had 
given the names of two persons to the police on the information 
given   by   police   itself.     He   further   deposed   that   on   the   day   of 


State v.Surender etc. 182/09                                                  25 of32
                                          

incident he had seen only two persons and not the four.  He further 
clarified   that he had named accused Jitender and Parveen at the 
instance   of   IO.     In   re­examination   by   APP   he   deposed   that   his 
statement recorded on that day was the only correct statement.  He 
further added that his earlier statement i.e. examination in chief 
was also correct.   In further clever re­examination, he stated that 
he had deposed facts in cross­examination because he had arrived 
at compromise with the accused who had begged  pardon from him 
and that he had forgiven   them. In further cross­examination   by 
the   defence   counsel   he   deposed   that   accused   Surender   and 
Ashwani being co­villager, were on visiting terms with him and his 
family. His wife was also knowing them.Defence   counsel   argued   that   testimony   of   PW13   is   of 
wavering in nature and such a witness is never credit worthy. In 
Anil & Ors. v. State of Maharashtra, Crl. Appeal No.1324/2008  
decided by Supreme Court on 24­01­2013,  the complainant had 
three versions  to tell­ one in FIR, second in examination in chief and  
third  in cross­examination.  Her evidence was not relied upon by the 
Apex Court.   Other eye witnesses were hostile and the accused were  
acquitted.State v.Surender etc. 182/09                                                26 of32
                                        

         In the case in hand also, PW3 and PW12 are hostile.  In his 
statement u/s 161 Cr. PC, PW13 had stated that accused Surender 
and Ashwani had fired at him and other two accused Parveen and 
Jitender had exhorted them.  When he appeared in witness box, he 
deposed in examination­in­ chief that accused Surender, Ashwani 
and Jitender Kumar fired at him.  The third version came in cross­
examination that he could not identify the persons who had fired at 
him as it was darkness and also the accused were wearing helmets. 
The fourth version is coming in re­examination by APP in which he 
deposed   that   he   did   not   support   prosecution   case   due   to 
compromise   with   the   accused.     He   further   deposed   that   facts 
deposed by him in examination in chief were the correct facts.  He 
further changed story and fifth version is coming in further cross­
examination   by   the   accused   in   which   he   deposed   that   he   had 
named the accused at the instance of IO.   In the cited case, the 
complainant had three versions and in the case in hand, injured 
witness have five versions.   So the authority of Supreme Court is 
covering the case of the accused squarely.InMrinal Das & Ors. v. State of Tripura(2011) 9 SCC 479  
the Supreme Court held as under:State v.Surender etc. 182/09                                            27 of32
                                              

         "It is a settled law that corroborated part of  evidence of hostile  
witness regarding commission of offence is admissible.    However, the  
Court has to be very careful, as prima­facie, a witness who makes  
different statements at different times, has no regard for the truth.  
The Court should be slow to act on the testimony of such a witness, 
normally, it should look for corroboration with other witnesses."18.               APP   argued   that   though   PW13   is   hostile   but   he   has 
been corroborated by the FSL report because it has been opined by 
the laboratory that three fired bullets collected from the spot and 
three led pieces recovered from the body of PW13 were fired from 
the arms recovered  from both the accused.  Regarding seizure  of 
three fired bullets from the spot, evidence of PW14 Ct. Madan is 
highly relevant.     He deposed in cross­examination that they had 
noticed   three   shells   lying   near   the   gate.       They   had   seen   those 
shells   when   they   had   reached   there   at   11.30   PM.     They   were 
encircled with the chalk  by the IO but were not lifted till  return of 
IO from hospital.  He further added that IO had lifted those shells 
before going to the hospital and handed them over to him while 
going to the hospital.   He kept them in a bag till the returning of 


State v.Surender etc. 182/09                                                   28 of32
                                            

IO from   hospital.  Seizure  memos were  prepared before  going to 
hospital.  In further cross­examination he deposed that he had not 
taken the case property in PS at the time of taking of rukka.   So, 
the   evidence   of   PW14   regarding   the   seizure   of   three   fired 
cartridges   from   spot   is  highly   defective.     The   IO   lifted   the   fired 
bullets without making pullanda of them,  he gave custody of those 
bullets to PW14.   He kept them in bag.   These were seized after 
return   of   IO   from   the   hospital.     Moreover   he   prepared   seizure 
memos before going to the   hospital but seized the bullets after 
return from hospital.  It is also beyond comprehension why he did 
not hand over that case property to PW14 when he was going to PS 
with rukka for registration of FIR.Seizure of three led pieces from the doctors of Jaipur Golden 
hospital is also defective.  Those pieces were handed over to IO by 
PW13   Dr.   Deep   Kamal   on   29­06­2009.   In   cross­examination   he 
deposed that the led pieces were recovered from the body of PW13 
during treatment.   He is not aware in whose possession the three 
led pieces were  between 26­06­2009 to 29­06­2009.  He could not 
recollect   whether   the   led   pieces   were   in     sealed   or   unsealed 
condition when the same were produced before him.   Prosecution 


State v.Surender etc. 182/09                                                   29 of32
                                          

has failed to account for the custody of led pieces from 26­06­2009 
to 29­06­2009.The prosecution case has been made doubtful by the evidence 
of   PW5   HC   Suresh   Kumar   who   was   posted   as   MHC(M)   during 
those days. Prosecution case is that  the spent bullets and led pieces 
were sent to FSL on 23­09­2009 vide RC No.132/21/09.  But it has 
been deposed by PW5 in cross­examination that six pullandas (four 
pullandas of spent bullets and two pullandas of lead pieces) were 
sent   to   FSL   on   23­09­2009     vide   RC   No.131­132/21/09.     Four 
pullandas   were   not   accepted   by   the   FSL   as   there   was   some 
objection given by FSL in writing. The pullandas were  again sent 
on   24­09­2009.   Cross­examination   of   PW5   shows   that   when   six 
pullandas   (including   four   pullandas   of   spent   bullets   and   two   of 
lead   pieces)   were   sent   to   FSL   on   23­09­2009   vide   RC   No.
131/21/09, they were returned by the FSL on technical ground. It 
further   shows   that   all   six   pullandas   were   sent   vide   same   RC 
number.  That RC has not been placed on record.   The objection of 
FSL was in writing and that objection has not been mentioned in 
register   no.19.     In   further   cross­examination,   PW5   deposed   that 
objection of the FSL was that seal was not proper and this single 


State v.Surender etc. 182/09                                               30 of32
                                           

sentence   is   eating   away   the   whole   prosecution   case.   Due   to 
improper seal, the pullandas were returned to MHC(M).  It seems, 
thereafter,the   MHC(M)   prepared   another   RC   no.132/21/09   Ex. 
PW5/C and sent two pullandas of  spent bullet and led to the FSL 
on 23­09­2009. Proper  course for the prosecution was to place on 
record   RC   No.131/21/09   and   also   the   objections   of   FSL   which 
were in writing. But it concealed both   documents and the only 
reason may be that these might be going against them.Three fired cartridges were taken into possession from spot 
on 25­06­2009 and three led pieces were  seized on 29­06­2009. 
There is no explanation with the police why it sent those pullandas 
to   FSL   on   23­09­2009   and   24­09­2009   i.e.   after   elapse   of   three 
months.InSurender   @   Babli   v.   State   (GNCT   of   Delhi)   Crl.  
Appeal   No.1547/2010   decided   by   Supreme   Court   on  
28­07­2011, the facts were that the fired  bullet recovered from dead 
body   matched   with   the   revolver   recovered   at   the   instance   of   the  
accused. Hon'ble High Court of Delhi had acquitted the two accused  
who were  not  identified by the  complainant  but had convicted the  
accused   on   whose   instance   revolver   was   recovered.     The   Supreme  
Court reversed the finding of the High Court on the ground that bullet  


State v.Surender etc. 182/09                                                 31 of32
                                              

was recovered from body on 08­02­2001, revolver was recovered at  
the instance of accused on 28­02­2001 but the bullet and revolver  
were sent to FSL on 03­04­2001 i.e. after elapse of one month and  
three   days.   Another   defect   in   the   cited   case   was   that   there   was  
contradiction about preparation of seizure memo of the pistol.   Two  
prosecution witnesses had stated that it was written by a person X  
and some other PWs had stated it was written by Y. In the case in 
hand  the    defect   was  pointed  out   by  FSL  and  as  per PW5,   that 
defect was in seal.  So the cited case is fully applicable on the facts 
of the present case.  Hence prosecution has failed to prove its case 
even against accused Surender and Ashwani.18.                        CONCLUSION
                  In   view   of   above   discussion,   all     the   four   accused 
persons are acquitted  of the charges levelled against them.  They 
be set at liberty if not wanted in any other case. Their  bail bonds 
are cancelled.   Surety bonds discharged. Endorsement, if any,   be 
cancelled. File be consigned to record­room.Announced in the Open Court 
On day of 7th June, 2014.(UMED SINGH GREWAL)
                                              ASJ/Special Judge (NDPS)
                                           North Distt: Rohini Courts: Delhi 

State v.Surender etc. 182/09                                                   32 of32