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IN THE COURT OF SH. RAJENDER KUMAR : ADDITIONAL

SESSIONS JUDGE : KARKARDOOMA COURTS : DELHI.

State Vs. Om Prakash Srivastava etc.

FIR No. 258/92

U/S 302 IPC

PS Shakarpur

Pr:-Sh. Zenul Abedeen APP for State.

Accused Om Prakash Srivastava in J/C with Sh. S.P. Singh

Choudhary advocate.

Accused Nitin Shah on bail with Sh. H.H. Ponda advocate.

Accused Manjeet Singh in J/C with Sh. J.P. Bansal advocate.

JUDGMENT :

1. Perhaps God seldom disturbs the destinies of men even for the

sake of his devotees. In the morning of 02.08.1992, one Lalit Suneja was

returning to his house after offering prayers to God, obviously for his well

being, but was shot dead by two unknown persons while nearing to his

house. A neighbourer namely Narender Pal Naresh, who happened to

pass through that street set the law into motion, by informing the police.

FIR 258/1992 was registered in PS Shakarpur about the incident.

During investigation, IO came across a complaint Ex. Pw15/A1 lodged in

the name of Lalit Suneja in PS Nizamuddin, New Delhi. Police picked

up a thread to undrape the mystery of death. After investigation, police

came up with following story :-

2. Accused Nitin Shah, was carrying on his business through a

proprietary concern M/s Simnit Enterprises. Same had employed Lalit

Kumar Suneja (deceased) as its distributor for the Northen Region. Both

the employer and employee (accused Nitin Shah and Lalit Suneja) were at

logger-head for sometime on account of some payment. When matter

could not be settled, accused Nitin Shah requested his friend, accused

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Om Prakash Srivastava @ Babloo Srivastava to eliminate Lalit Suneja

and assured to provide cash likely to be spent in doing the act. Accused

Om Prakash Srivastava intrigued with co – accused persons to bring his

design to fruition. Accused Manish Dixit was hired to execute the task for

Rs.1,00,000/-. On 02.08.1992, accused Virender Pant @ Chotu (since

deceased) took accused Manish Dixit to the spot on a motor - bike

Yamaha bearing no. DL-1SD-4680. Accused Manjit Singh @ Mangu

waited for them in a car bearing no. DL – 1 CB – 7874 at Yamuna Pusta

near Bank Enclave. Lalit Suneja was shot dead by accused Manish Dixit.

The latter fled away from spot on motor - bike described above being

driven by accused Virender Pant and reached to co-accused Manjeet Singh

who was waiting for the formers. They exchanged their vehicles and

rushed to accused Om Prakash Srivastava and returned to the latter the

motor bike and pistol used in the crime. The latter accused paid

Rs.50,000/- to each of accused Virender Pant and Manjeet Singh for

driving aforesaid motor bike and car, in order to facilitate accused

Manish Dixit in killing the deceased and to escape unhinderred.

3. Police filed challan against accused Manish Dixit and Manjeet

Singh on 27.10.1992. Accused persons namely Virender Pant, Om

Prakash Srivastava and Nitin Shah found place in column no, 2. Separate

charge sheet was filed against accused Nitin Shah on 23.01.1993, against

accused Om Prakash Srivastava on 03.01.1996 and against Accused

Virender Pant on 15.03.1995.

4. After considering the material on record and hearing their

counsels accused Om Prakash Srivastava, Nitin Shah & Manjeet Singh

were charged for offence punishable U/S 302/34 and 120 B IPC by order

of this court dated 06.1.2003. All of accused persons pleaded not guilty

and claimed trial, when the charge was read over and explained to them.

Accused Virender Pant and Manish Dixit were reported to have died till

then.

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5. In order to bring home its case, prosecution examined 32

witnesses in total. The accused persons in their statements U/s 313

Cr.PC, alleged all the evidence against them as false and wrong. Accused

Om Prakash Srivastava examined Sh. V.C Mishra a hand writing expert in

his defence.

6. I have heard Ld APP for the State & Ld counsels representing

accused persons at length and gone through the record on file.

7. It did not remain contentious during arguments that Lalit Suneja

died a homicidal death. Even otherwise, same is well proved from the

statement of PW1, PW2, PW3, PW5 and PW 20. Smt. Veena (PW1) ,

W/o Lalit Suneja stated to have found the latter, lying on the ground

unconscious, imbued with blood. Said witness also noticed injury on the

head of deceased, who was taken to the GTB Hospital by their

neighbours, where the same was declared as dead. Dr. S. K. Verma

(PW2) deposed to have conducted autopsy on the dead body of the

deceased Lalit Suneja. This witness observed following injuries during

post – mortem :-

(i) A circular firearm entry wound of size 0.7 cm in diameter surrounded by an abrasion collar of 0.2

cm thickness. The wound was placed 5 cm above the left mastoid process at 8.5 cm above the occiputin left tamporal region and entering into cranial cavity after producing a circular hole in the skullunder the wound, after passing through the left and right cerebral hamispheres, it produced an eliptrical exit wound of size 3.5 x 1cm.

(ii) Circular entry wound of a firearm of size 0.7 cm diameter surrounded by abrasion collar of 0.2 cm

placed on right tamporal region. It produced an exit wound in the right frontal region of size 1.5 x 0.5 cm.

(iii) A circular firearm entry wound with enverted regular margins of size 0.7 cm surrounded by an abrasion collar of 0.2 cm placed on left side back below and lateral to

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posterior exillary fold and 2 cm outer to inferior angle of scapula going into chest cavity through inter costal space and fracturing the rib and then entry into left lung, right lung, right axilla and upper region of shaft of humerous on right side with an impacted bullet was recovered from the madulla of right humerous in which it had produced fracture of the bone with effusion of side.

(iv) A lacerated wound of size 1.5 x 0.5 cm on left occipital region placed 3 cm above the occiput.

8. Sh. Chander Bhan Suneja (PW3) and Ashok Ahuja (PW5) were

father and brother – in – law (wife's brother) respectively of the deceased.

The former (PW3) deposed to have identified the dead body of

deceased. The corpus was received by this witness vide receipt Ex.

PW3/B. SHO Inspector Hem Chand (Pw20) stated to have reached GTB

Hospital from spot and received MLC of Lalit Suneja, who had expired

already.

9. Apart from said witnesses, the complainant gave a statement to

the police stating that at about 8.00 a.m. when he was going to temple on

his Moped, he heard the sound of shooting. As he proceeded in gali

before Kothi no. 210 and 211, he found a person lying on the ground and

two persons were on a motor cycle, one of them was having a revolver -

like weapon in his hand. The person who was lying dead was known as

Lalit Suneja.

10. The complainant, when was summoned for deposition in court,

was reported to have expired. Same was resident of Bank Enclave where

deceased used to reside. The complainant has disclosed in his statement

given to the police immediately after the incident that assailants were two

in numbers having come on a motor cycle of Mehroon colour. The

murderer was a non Sikh having slim body and wearing blue colour T-

shirt. Both of them fled away from the spot towards Yamuna Pusta.

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11. Ld. defence counsel questioned the admissibility of statement

given by the complainant. True, the complainant could not be subjected

to cross – examination, having died before the same was summoned to

depose in the court. He was not withheld by the prosecution deliberately.

Being neighbour residing near the spot, the complainant appears to be a

natural witness. Neither names of the assailants nor the number of the

motor - bike used in the crime found mentioned in his statement. There

is nothing in that statement like hyperbole or improbity which could

make the same incredible. PW 20 also stated on oath that after obtaining

the MLC of Lalit Suneja, he (Pw20) came back at spot. One Narender

Pal Naresh met him there and claimed himself to be an eye witness. He

(Pw20) recorded his statement Ex.Pw20/A correctly which was attested by

him at point 'A'. It bears signature of complainant Narender Pal Naresh at

point 'X'. Pw16 also verified recording of statement of complainant by

SHO i.e Pw20, Pw16 had gone to spot accompanied with SHO Inspector

Hem Chand i.e Pw20.

12. Impending all this, in my opinion complaint Ex. Pw20/A cannot

be thrown away as a waif, even if complainant was not cross – examined

by accused. It was held by the Apex Court in a case titled as Inder

Singh and another Vs State (Delhi Administration) AIR 1978 SC

1091 that court is not precluded from assessing veracity of a witness

even in the absence of his cross – examination.

13. Sh. S. P. Singh Chaudhary advocate reminded me at the outset

that in a case based on circumstantial evidence, prosecution has to

establish a chain of circumstances which lead to the only conclusion that

it would have been the accused, who had committed crime alleged in the

case and none else. Sh. H. H. Ponda advocate also harped on the same

string. Ld counsel referred a score of authorities on this point, I have

gone through all of these cases. Shorn of unnecessary details, may I

reproduce ratio rendered by the Apex Court in one of such landmark

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judgments. It was mandated in case Shard Birdhi Chand Sarda Vs.

State of Maharashtra AIR 1984 SC 1622 :-

The following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to fullly established :-

(i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concrned 'must or should' and not 'may be' established. (ii) the facts to be established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other

hypothesis except that the accused is guilty.

(iii) the circumstances should be of a conclusive nature and tendency.

(iv) they should exclude every possible hypothesis except the one to be proved and

(v) there must be a chain of evidence so completeas not to leave any reasonable ground for the conclusionconsistent with the innocence of the accused and mustshow that in all human probability the act must have beendone by the accused.

14. May I assess the evidence on record to ascertain whether

prosecution has succeeded in establishing its case or not.

15. Accused Nitin Shah rejected unequivocally the assertion that

same had employed deceased Lalit Suneja or had any money dispute with

any such person.

16. The record of case reveals that two applications were filed by

accused Nitin Shah mense proceedings. One is an application U/S 340

r/w Section 195 of Cr. P. C. dated 10.07.1995 with a request to initiate

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proceedings under aforesaid provision of law against the Investigating

Officer of this case and the other application was filed by the same

accused U/S 317 (2) of Cr. P. C. with a prayer for separation of his trial.

There are almost similar averments in both of these applications like

that :-

the applicant (accused Nitin Shah) wascarrying on business through proprietaryconcern called M/s. Simnit Enterprises. Saidconcern had appointed late Lalit Suneja as itsdistributor for the Northern Region. In the monthof June, 1992, the applicant being the Proprietor/ Director of the aforesaid concernterminated the appointment of late Sh. Sunejaas distributor .

That after termination of the services, late Sh. Suneja from time to time contacted the applicant particularly on phone & daily demanding exhorbitant sums of money, the figure of which varied on every occasion. He had claimed that the sums were not due to the said concern, M/s. Simnit Enterprises from him. That initially applicant entertained his telephone calls to convince him that the amount was not due to him but said Sh. Suneja persisted with his demand and thereafter the applicant refused to talk him as his claims were totally unwarranted and ridiculous in the extreme.

17. This application is supported by an affidavit of applicant, the

latter having sworn on oath that it was drafted by his counsel on the

instructions of himself (applicant). The latter has also verified the facts

mentioned in said application as true and correct to the best of his

knowledge.

18. From these applications, it is clear that deceased Lalit Suneja

was employed with M/s Simnit Enterprises being run by accused Nitin

Shah and there was a dispute about payment of some money between

deceased Lalit Suneja and accused Nitin Shah. Being an admission on the

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part of accused Nitin Shah, prosecution was not required to prove said

facts. As per Section 58 of the Indian Evidence Act, admitted facts need

not to be proved,

19. Application Ex. Pw15/A1 is like a puncheon which holds entire

case of the prosecution. It is contended that during investigation of this

case, wife of deceased Lalit Suneja had disclosed about this complaint to

the IO of this case.

20. Ld. defence counsel struck at the very base of this application.

In the opinion of ld. counsel, it was a forged document put on file later

on by the prosecution to buttress its case against the accused. Ld. defence

counsel pointed out as how cleverly an entry about filing of this

complaint is made at Srl. No.605/2 in the register no.12. Otherwise

complaint of some Khusmida was recorded against serial no. 605/2 but

the register is tempered in such a way that complaint of said Khusmida

appears to have been entered against a number 604A which was given

later on by manipulating the register and actually there was no such entry

as 604A. Ld counsel pointed out that in the entire register no. 12, there

was no entry with serial no. A, except the one under dispute.

21. Ld. defence counsel also challenged the veracity of PW15

(Hanuman Dan). It is contended that there was no post of Reader to

SHO in any Police Station in Delhi and that Sh. Vijay Sule never

remained SHO of PS Nizamuddin.

22. Apart from recounting, tempering in register no. 12, Sh. H. H.

Ponda advocate pointed out that as per his own admission, PW 15 made

two entries in register Roznamcha on 23.7.92 one at 1.30 p.m. (noon) and

other of his return at 10.00 p.m. Said witness has claimed himself to

have gone Jucasso Inn on that date at 8.00 pm. But there is no entry in

said register in this regard. Similarly, it is also disclosed by the said

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witness i.e. PW15 that he had sent Ct. Bir Singh and Ct. Joginder to

Jucasso Inn to watch the proceedings of meeting between accused persons

and deceased Lalit Suneja. There is no entry about said constables in

aforesaid register. Moreover, none of said two constables was examined

in this case to verify said fact.

23. It is urged by ld. defence counsel that all this was enough to

raise doubt about having filed complaint like Ex. PW15/A and also about

the meeting stated to have been held in Jucasso Inn.

24. Ld. APP did not confront the assertion about tempering of

register no. 12 by the police, rather conceeded that the police very often

desists to register an FIR or even avoid making entry in relevant register

of complaints being received in police station. But when events take

unexpected turn, they try to fill up lacunae by inserting post-hoc entries

here and there. Even if all this exercise results in tempering of records

maintained in the police station. In the opinion of ld. APP, same does

not falsify filing of complaint. In the same way, in view of ld. APP in

not making entries in the rojnamcha by PW15 or by the constables who

went to Jucasso Inn about their visit there, sheer negligence of said

witnesses was the only reason. I find weight in the submission of ld.

APP. The court cannot put kibosh on the matter by rejecting a complaint

merely because the same was not entered in a register, maintained in the

police station properly or by making some false entries, record of

police station was tempered with, if the filing of such complaint is well

proved on the record otherwise.

25. It is manifest that entry about complaint Ex.Pw15/A1 in register

no. 12 was made later on by tempering said register. The asseveration as

expressed by Ld APP, if it is true, such inexplicable conduct on the part

of a law enforcement agency like police is highly depricative which can

never be pardoned. Despite all this, police is not dystopia where

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everything is bad. It is reminded by Goa High Court in case Golappa

Avana Niak Vs State 1968 Criminal law Journal 929 that the police

officers like other state functionaries are expected to exhibit impartiality in

discharge of their function and detached view in the situations they are

called upon to tackle day in and day out and be fair both to prosecution

and the accused. Their lordships of the Supreme Court of India also

observed in case State of Assam Vs Muhim Barataki 1987 Criminal

Law Journal 152 that evidence of police officer cannot be undermined

merely because he is a police officer.

26. May, the deposition of Pw 15 be not free from condemnation but

same cannot be discarded as a rotten whole. The court is duty bound to

segregate uninfected portions from the rest. Admissible pieces so

discerned and concatenated may give an identifiable shape to the case.

Like any other witness, law presumes a police officer a reliable witness.

27. The higher courts in India have rejected time and again the

maxim 'falsus in uno falsus in omnibus' which means false in one

particular, false in all or false in one thing false in all. It was mandated by

the apex court in Sohrab Vs State of MP AIR 1972 SC 2020 that

falsus in uno falsus in omnibus is not a sound rule for the reason that

hardly one comes across a witness whose evidence does not contain a

grain of untruth or at any rate, exaggeration embroideries or

embellishments. In most cases, the witnesses when asked about details,

venture to give some answer, not necessarily true or relevant for fear that

their evidence may not be accepted in respect of the main incident which

they have witnessed but that is not to say that their evidence as to the

salient features of the case after cautious scrutiny cannot be considered

through where the substratum of the prosecution case or material part of

the evidence is disbelievable it will not be permissible for the court to

reconstruct a story of its own out of the rest.

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28. The Supreme Court of India in case State of UP Vs Anil Singh

1989 Cr.L.J 88 has held in clear terms that:-

If there is a ring of truth in the main, the case should not be

rejected. It is the duty of the court to cull out the nuggets of

truth from the evidence unless there is reason to believe that the

inconsistencies of falsehood are so glaring as utterly to destroy

confidence in the witnesses.

29. There can be no denial that a person was murdered. If a police

officer connected to case is found having tempered the record, same can

never be treated as a defeasance to undo an abominable felony.

30. Ld. defence counsel had called PW15 as an interested witness

being police officer. Will it be proper to label such witness as a witness

interested for conviction of the accused?

31. Self-interest is the main force which impells a person to do

some act. The other factor being an external force, which is not imputed

here. What PW15 could earn from this case even if it results in

conviction of accused. Trite it to say that PW15 is not the IO of this

case, who could have got some credit on success of the case. Is result of

this case more important for a police witness (Pw15) than running the

risk of accusation, having tempered with the official record. If non –

feasance of PW15 is weighed on this golden scale, I find tilt towards the

prosecution. No diligent person can be supposed to have invited trouble

of prosecution for a peltary. On the basis of this reason, I do not think

that complaint Ex. PW15/A was a fictitious document or was introduced

later on. The testimony of PW15 can not be marginalizd in this respect.

32. It is deposed on oath by PW15 that on 23.7.92 he received a

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complaint of Lalit Suneja, infact the complaint was given to him by SHO

PS Nizamuddin. At that time Lalit Suneja was also present who told him

that there was money dispute between him and Mr. Nitin Shah and the

latter had threatened him to settle the dispute and that he had received

telephone calls from one Mr. Babloo. He (Lalit Suneja) further told that

on that date at about 8.00 pm he was called at Jucasso Inn at Sunder Nagar

by Nitin Shah and his associates for settling dispute. It is further disclosed

by PW15 that at Jucasso Inn, Lalit Suneja had introduced him (PW 15) to

Nitin Shah and O.P Srivastava. Nitin Shah had disclosed that he was a

business-man and was staying at Oberoi Hotel, while Om Prakash

Srivastava had disclosed that he was an advocate and residing at G-128,

Moti Bagh. Manish, Vimal Bhai, Satnam @ Fauzi and Virender pant

were also with Nitin Shah on that day. Again that Lalit Suneja and Nitin

Shah had told him (PW15) that further date for their settlement had been

fixed as 30.7.92. PW15 when was called for re-examination on an

application filed by APP, again disclosed that he had verified the facts of

complaint from the complainant and also the signatures of latter on it.

33. Complaint Ex. PW15/A1 is stated as having been marked to

PW15 for investigation by the SHO. Complaint is prima facie endorsed

in the name of SHO. The latter, when summoned as a witness by court

was reported to have expired. Signatures of same i.e SHO PS

Nizamuddin namely Inspector Vijay Sule are also identified by PW15,

stating that he had worked with him (SHO) and had seen the same writing

and signing before him.

34. I find no reason to doubt the integrity of PW15 in this regard also.

Similarly, there is no evidence to establish that Inspector Vijay Sule had

not worked as SHO PS Nizamuddin on 23.7.92 as stated by PW15 though

disputed by Ld defence counsel. Ex. PW15/A1 is a statement relating to

cause of death of deceased Lalit Suneja and the same is admissible in

view of Section 32 of the Indian Evidence Act.

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35. Inspector Ram Mehar Singh (Pw31) deposed that in year 1995 he

received information about accused Babloo Srivastava who was detained

in Singapore and he prepared a proposal for extradition of said accused.

He got production warrants of said accused from a TADA court at

Kanpur, U.P. After extradition, accused Om Prakash Srivastava was

produced in this case. On being interrogated by permission of the court,

accused Om Prakash Srivastava gave a disclosure statement Ex. Pw26/A.

It is also disclosed by this witness that he collected original guest register

of Kanishka Hotel through SI Manoj Dixit. Again this witness stated that

he took sample hand writing of accused Om Prakash Srivastava

Ex.Pw26/B, Pw26/B1- Pw26/B15, Ex.Pw26/C, Ex.Pw26/C1 –

Ex.Pw26/C3 and guest registration certificate Ex.PW29/A. It is disclosed

by Pw31 that accused Om Prakash Srivastava gave his sample hand

writing voluntarily and it was made clear to the accused that he was free to

give or deny. Further that sample hand writing of accused and the

documents seized from Kanishka Hotel were sent to FSL, Malviya Nagar

and he collected report after expert opinion on the same, which is

Ex.Pw29/C. All these facts are tautologized by inspector Manoj Dixit

(Pw32) in his statement.

36. Inspector Ram Mehar (PW31) further told that in view of

disclosure statement of Om Prakash Srivastava, he collected record of

motor bike and car No. DL -1CB – 7874 from the Registration Authority

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Underhill Road, Delhi. It is disclosed by this witness, in his cross –

examination that aforesaid car was purchased in the name of Om Prakash

Srivastava while the motor bike was registered in the name of Arun

Kumar Aggarwal. Inspector Badal Singh, deposed to have verified from

Registration Authority, Rajpur Road about registration of car no. DL

-1CB – 7874 in the name of Om Prakash Srivastava and also the motor

cycle no. DL – 1SD – 4680 in the name of Arun Kumar AggarwalSh.

Vipin Talwar PW27) who was working in Transport Authority Underhill

Road as head clerk stated that he handed over original file of car no. DL

-1CB – 7874 to the police which was seized vide memo Ex. PW27/A.

Similarly Mrs. Swatantra Pahwa (PW 28) who was working in Transport

Authority, Rajpur Road admitted to have handed over the original file of

vehicle no. DL – 1SD -4680 to the police which was seized vide seizure

memo Ex. PW28/B and that said motor cycle was registered in the name

of Arun Kumar Aggarwal.

37. Inspector Hem Chand (Pw20) who was posted as SHO in PS

Shakarpur stated about disclosure statements given by accused Manish

Dixit (since dead) i.e Ex.Pw20/F and accused Manjit Singh Ex.Pw20/G.

Retired SI Jai Prakash (Pw22) who is stated to have accompanied SHO

Inspector Hem Chand verified about disclosure statement given by

accused Manish and Manjit Singh on being interrogated. This fact is

verified by retired SI Jai Prakash (Pw22) and Ct. Salim Ahmad (Pw24)

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who stated to have accompanied SHO (Pw20) at the time when aforesaid

accused persons gave disclosure statements.

38. Inspector Badal Singh (Pw25) deposed that in view of disclosure

statement given by accused Manish Dixit and contents of letter dated

23.7.92 he went to hotel Oberoi on 11.8.92 and collected record of stay

of accused Nitin Shah in said hotel on 23.7.92. This witness claimed to

have collected guest card of Hotel Oberoi in the name of Nitin Shah

about room no. 820 which is Ex.Pw25/A and photocopy of telephone call

bill marked Pw25/B which was seized vide seizure memo Ex.Pw17/D. All

this is also corroborated by SI Bakhtawar Singh (Pw17). Inspector Badal

Singh (Pw25) also stated to have seized record of hotel Kanishka in view

of disclosure statement given by accused Manjit Singh.

39. Needless to say that it was accused Om Prakash Srivastava who is

alleged to have stayed in hotel Kanishka and not accused Manjit Singh on

whose disclosure statement the record of said hotel was seized. Similarly,

record of hotel Oberoi was seized after disclosure statement of accused

Manish Dixit while not the latter accused but accused Nitin Shah was

stated to have stayed in said hotel on 23.7.92. It is urged by Ld defence

counsel that even if any fact was discovered on the basis of admission of

an accused, same cannot be admissible against other accused who had not

given the disclosure statement. Ld. counsel Sh. Ponda placed reliance

upon a case titled as Nabi Mohd. Vs. State of Maharashtra 1979

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Bom. C.R. 680 on this point.

40. Retired ACP Gurmakh Singh (Pw26) deposed to have joined

investigation of this case on 29.10.95 and verified disclosure statement of

accused Babloo Srivastava Ex.Pw26/A. It is also stated by this witness

that on 30.10.95, Investigating Officer (IO) of the case obtained

specimen hand writings of accused Babloo Srivastava in his presence

which are Ex.Pw26/B running into 15 pages. Again specimen hand

writing of same accused was also taken on 03.11.95 which is Ex.Pw26/C

and Ex. Pw26/C1 – Ex.Pw26/C3, all bearing his signatures at point A.

41. As per Inspector Manoj Dixit (Pw32) the same, on the direction

of Inspector Ram Mehar, the IO of case (Pw31) received a certificate

issued by Kanishka Hotel. Pw32 further stated that on 14.11.95 Inspector

Ram Mehar (pw31) handed over to him the case file exhibits i.e specimen

hand writing of accused Om Prakash Srivastava and the admitting hand

writing of latter accused in the register of Kanishka Hotel and original

registration file Ex.Pw27/B of vehicle i.e Car no. DL1CB 7874 containing

nine documents marked Pw32/X1 to Pw32/X8, to him and he deposited

the same in FSL office, Malviya Nagar, Delhi.

42. The specimen hand writings of accused Om Prakash Srivastava

were compared with the hand writing written in the name of same accused

in the record of Kanishka Hotel as well as in registration authority Under

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Hill Road, Delhi where a car DL1CB 7874 is stated to have been

registered. Sh. A.K. Gupta (Pw29) deposed that he was working as Asst.

Director (documents), FSL, Delhi. He received documents in this case for

opinion on 14.11.95. The questioned hand writings were enclosed with red

pencil and were marked by him as Q1 to Q4 in Ex.Pw29/A and Q5, Q6,

Q61, Q62 and Q7 in Ex.Pw29/B which is in two sheets. The specimen

hand - writing of Sh. Om Prakash Srivastava was also sent to him for

comparison with above mentioned hand writing and were enclosed by him

by red pencil as marked S1 to S16 in Ex.Pw26/B and Ex.Pw26/B1 to

Ex.Pw26/B15 respectively and specimen hand writing marked S17 to S20

in Ex.Pw26/C and Ex.pw26/C1 – Ex.Pw26/C3 respectively. This witness

after examination of aforesaid hand writings submitted a report

Ex.Pw29/C signed by the same at point A. It is deposed on oath by this

witness that according him, the person who wrote the writing marked S1

to S20 was responsible to write and sign documents marked Q1 to Q6,

Q61, Q62 and Q7.

43. Not satisfied with the report given by Sh. A.K. Gupta (Pw29)

accused Om Prakash Srivastava opted to take a second opinion of a hand

writing expert, of his choice. The accused got his specimen hand writing

taken by the IO of the case compared with the hand writing on questioned

documents seized by IO in this case. Sh. V.C Misra (Dw1) deposed to

have submitted his report Ex. Dw1/A after thorough examination of said

documents/hand writings/signatures. In the opinion of Sh. V.C. Misra

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(Dw1) Q1 to Q4 were written by one person, Q5 to Q7 were written by

another person and S1 to S20 had been written by a 3rd person. In the

opinion of DW1, all these documents were not written by one and same

person.

44. It is contended by Ld APP that Sh. V.C Misra was a person of

accused and same had given an opinion favorable to his client i.e accused

while A.K.Gupta (Pw29) was a responsible Govt. officer serving as

Assistant Director of a prestigious institute like Forensic Laboratory,

Delhi. Same cannot be expected to have given wrong opinion.

45. I do not find much substance in this submission of Ld APP.

Testimony of the witnesses examined by accused carry same weight as

the testimony of witnesses examined by prosecution. May I refer here few

precedents as under:-

The Apex Court has held in case Dudh Nath Pandey Vs. State

of U.P. AIR 1981 SC 911 that the defence witnesses are entitled to

equal treatment with those of the prosecution. And courts ought to

overcome their Traditional instinctive disbelief in defence witnesses, quite

often they tell lie but so do the prosecution witnesses. The following

was observation in case Satya Narain Vs. State 1985 Cr. L. J. 1966 :-

The evidence of witneses in trial whether they depose for the prosecution or defence is to be judged by the courts with the same standard of the reliability. The defence evidence should not be bypassed or overlooked by the courts simply because the

19

witnesses had deposed in favour of accused.

46. There are two contradictory reports about the handwritings of

accused Om Prakash Srivastava on questioned documents. Even if both

i.e. Dr. A.K. Gupta (PW29) as well as Sh. V. C. Mishra (DW1) claimed

themselves to be handwriting experts having examined a bevy of

documents, ultimately it is for this court to decide as the report of whom

from aforesaid experts was reliable. It is well settled that the court can take

a prima facie opinion after perusing the documents. Even otherwise, in

case of two contradictory reports of experts on same subject, this court

has no option but to rely upon one and eventually ignore the other.

47 After careful consideration of both of reports i.e Ex.Pw29/C and

Ex.Dw1/A mejudice Ex.Pw29/C is more reliable due to following

reasons:-

A minutia of report Ex. DW1/A reveals that the examiner of

handwriting has reached at finding mainly on the basis of size and

proportion of letters and also the process of writing of letters i.e. use of

ink, line quality, pen pressure etc. In his (DW1) observation, disputed

hand writing mark Q1 to Q4 shows line quality defects i.e. concealed

retouching and joining, unnatural pen lifts and pauses, halty and slower

execution etc. A detailed comparison of Q1 – Q4, Q5 to Q7 and S1 to

S20 by DW1 as described by him under titles 1 to 14 shows the

inclination of examiner towardes a particular mode.

20

48. On the other hand, Dr. A. K. Gupta (PW29) appears to have had

reached at a conclusion mainly on the basis of “manner of writing” letters.

This witness seems to have compared almost each of letters written in

questioned documents with the admitted handwriting of accused Om

Prakash Srivastava. It appears to be more accurate and reliable method.

Most of letters present apparent resemblance. For example:-

49. Minute but detailed similarities of letters in both handwriting

questioned i.e. Q1 to Q4 and Q5, Q6, Q62, A6/2 and Q7, on the one hand.

S1 to S20, on the other hand are well shown in the report Ex. Pw29/C. I

see no need to reproduce the same here.

50. Hand is not a printing machine containing blocs of letters where

by simply putting it on a paper, one can find figures printed exactly same

in size, formation and distances. It is natural to have minor variations in

size and formation of letters. Paucity of space on paper or of the time for

the writer may sometimes be responsible for variations in the size of

letters. Moreover, natural and unconscious writing bring more

similarities than the writings when the writer is cautious like in this case

where the writer (accused) was asked to write specific letters / words for

21

some specific purpose i.e. comparison of handwriting. It would have been

in the mind of the writer in this case that if his handwriting is found

resembling with the questioned handwriting, the same may lead to his

conviction in an offence like murder.

51. So far as the opinion of DW1 about formation of letters 'G' in

Q1, of 'L' in Q2, 'M' and 'B' in Q3 are concerned, these are sparing

examples of minor deviation which are natural. There are so many

variations in formation of same letters even in the admitted handwritings

of accused Om Prakash Srivastava.

52. So far as contention of Ld defence counsel that a fact disclosed

by one accused cannot be used against co-accused is concerned, I do not

agree with ld. counsel on this point. In case Nabi Mohd. Vs. State of

Maharashtra (SUPRA) one of accused disclosed “I was given two

knives by accused Nabi Mohd. .......” and knives were recovered at his

instance. Disclosure statement of this accused was held inadmissible

against co – accused by the Bombay High Court stating that

“.............the informant being known and information being admissible because of the resultant discovery, these may be raised and used appropriately against the informant. But these illustrative inferences that can be drawn as a result of the facts discovered cannot further be stretched so as draw similar inculpatory inferences against the persons who are in the position of co-accused (p. 23) for reason -

(a) ...............on the principles evident herein, such incriminating information could effectively be

22

used only against the maker as admissible having assurance of its truth coming from the facts discovered pursuant thereto. With regard to co-accused, nothing of the kind is available, and it would not be safe to use such information involving the co-accused. (p.25)

(b) In fact, such an information even if proved would not strictly be evidence against the non- maker for the maker is not a witness nor can be subjected to

cross – examination.

53. It is also clear from the bare language of Section 25 & 26 of

The Indian Evidence Act, 1872 that both of these provisions make

confession by an accused before the police officer inadmissible, against

the maker of statement i.e. accused. There is no controversy that

Section 27 of the same Act is under the nature of provisio to said

sections but unlike former sections, Section 27 of the Act does not

mention 'against such person' i.e. person who makes admission before the

police. Moreover, like Sector 25 or Section 26, Section 27 of the Act

provides not only about the confession or admission. It allows every

such information, which relates distinctly to the fact that discovered, in

consequence of information received from an accused, to be proved. It

is immaterial that such information amounts to confession or not.

54. All this shows that any such information which qualifies the test

of Section 27 of The Indian Evidence Act, can be proved even if same

relates to an accused other than accused of its maker.

23

55. Turning to the case in hand, police is alleged to have known

about stay of accused Om Prakash Srivastava in Kanishaka Hotel from

disclosure statement of co accused Manish Dixit and Manjit Singh.

Similarly, the stay of accused Nitin Shah in Hotel Oberoi came to the

knowledge of police from the disclosure statement of co-accused namely

Manish Dixit. Portions of statements disclosing about the stay of co-

accused in some hotel, in their strict sense, were neither admission nor

confession on the part of the said accused. Same were not incriminating in

themselves either for the maker of statement or for any of co-accused.

The same simply provided a path to the police to proceed with the

investigation . Suppose, some birdie had given this information through

an ananimous call to the Investigating Officer, was the latter forbidden

to act upon the same? No. Varily it was an evidence collected by the

IO after getting clue from disclosure of an accused which if proved

makes it incriminating, but not the information in itself was not

incriminating.

56. So far another reason cited by Hon'ble Judges is concerned,

even if the maker of statement was not a witness and hence could not be

subjected to cross – examination. It is not the disclosure of co-accused

which is used as evidence against accused Om Prakash Srivastava or Nitin

Shah about their stay in Kanishka Hotel or hotel Oberoi respectively,

rather the record of said hotels, precured by the IO though after getting

information from that accused, which is used as evidence. The IO as well

as officials of said hotels deposing about said record, were subjected to

24

cross examination by accused persons.

57. Even otherwise, being a fact necessary to explain or introduce a

fact in issue, i.e. stay of an accused near the place of occurrence on the

night of incident / meeting and also a fact which supports an inference

suggested by said fact in issue, becomes admissible in view of Section 9 of

the Indian Evidence Act. Further, from the evidence on record, there are

reasons to believe that accused persons in this case had conspired each

other to commit an offence and hence anything said, done or written by

one of such persons is admissible for the purpose of proving conspiracy

between them, as per section 10 of The Indian Evidence Act.

58. As per Guest Registration Card, mark PW25/A, someone in the

name of Arun Kumar Aggarwal had stayed there in room no. 919.

STD card Ex. PW17/C also shows that telephone calls were made in the

name of Arun Kumar Aggwral. As discussed above, entries in the Guest

Registration Card of Kanishka Hotel in the name of Arun Kumar

Aggarwal were made by accused Om Prakash Srivastava. Said record

was maintained by the hotel in its ordinary course of business. When it

is proved that entries in Guest Registration Card etc. were made by

accused Om Prakash Srivastava, it can be presumed that it was the latter

i.e. accused Om Prakash Srivastava who had stayed in that hotel on

2.8.1992 / 3.8.1992 Similarly Guest Registration Card of Hotel Oberoi

Ex. PW25/A and copy of telephone bill mark PW25/B show that accused

Nitin shah stayed in said hotel on 23.07.1992.

25

59. As discussed earlier, it is well proved on the file from the

statement of PW29 that Form 20 (Application for Registration of a motor

vehicle no. DL -1CB – 7874 ) was signed by accused Om Prakash

Srivastava. Said record is being maintained by the Registration

Authority in its ordinary course of business, it can well be presumed that

accused Om Prakash Srivastava was owner of said vehicle.

60. There is no gainsaying that the prosecution has failed to prove

that any of said two vehicles was used in the crime in question. Om

Prakash Srivastava denied in his statement recorded U/S 313 Cr. P. C. to

have owned any of said two vehicles. The assertion of accused Om

Prakash Srivastava has been proved as false. In such a case, an adverse

inference can be drawn against accused Om Prakash Srivastava. May I

refer a case on this subject titled as Peresadi Vs. State of U.P AIR

1957 SC 211. The accused was facing a murder charge and the same

had denied several relevant facts, which had been conclusively

established. In such a circumstance, it was held by the Apex Court of

India that the court shall be justified in drawing an adverse inference

against the accused.

61. During proceedings of this case, it came on record that accused

Om Prakash Srivastava is facing trial in many cases.

(i) Ex. Pw32/mark X i.e a copy of letter / order of the Minister

for Law, Republic of Singapore dated 30.8.95, mentions accused Om

26

Prakash Srivastava @ Arun Kumar Aggarwal @ Bablu as accused of

following offences:-

(a) Conspiracy to commit murder of one I D Arora an offence punishable U/s 120B IPC r/w section 302 IPC.

(b) Murder of one Ram Partap Singh Chauhan punishable U/s 302 IPC 1860.

(c ) Conspiracy to commit murder of one Lalit Kumar Suneja an offence punishable U/s 120B r/w section 302/34 IPC (case in hand).

(d)Conspiracy to Kidnap one Vishwanath Mittal an offence punishable U/s 120B r/w section 341/365/324/307 IPC of 1860.

(ii) A case before a TADA court at Lucknow (U.P.) as told by Ld

counsel for accused Om Prakash Srivastava on 21.01.06.

(iii) It is also to be noted that accused Om Prakash Srivastava is being

produced before this court from Central Jail Baraily, U.P. and as per the

warrants of this accused same is facing trials while in judicial custody at least

in following case:-

FIR no. 33/03 U/s 364A/387/120 B IPC P.S. Special Cell, Delhi.

This warrant is signed by the trial judge.

62. Now, it is proved on record that Lalit Suneja (deceased) was an

employee of Simnit Enterprises being run by accused Nitin Shah, both of

them had a dispute over some payment. Complaint Ex. Pw15/A1 was

lodged by the deceased, apprehending risk of life from accused Om

Prakash Srivastava and Nitin Shah. The complainant had disclosed about

a meeting with said accused at Jucasso Inn, Sunder Nagar on 23.7.92

which actually took place and is verified from the statement of Pw15. It

27

was attended by accused Om Prakash Srivastava and Nitin Shah, apart

from deceased and some others. Matter could not be settled and a further

meeting was fixed for 30.7.92. Said Lalit Suneja was murdered by two

unidentified persons on 02.8.92 i.e two days after the date of further

meeting to resolve the dispute. Accused Om Prakash Srivastava was in

Delhi on 02.8.92 i.e day of murder. It is pertinent to point out that accused

Om Prakash Srivastava does not claim to be a resident of Delhi. Accused

Nitin Shah who is residing in Mumbai, stayed in Hotel Oberoi, New Delhi

on 23.7.92 i.e day on which above mentioned meeting was held in Jucasso

Inn. Accused Om Prakash Srivastava told a lie before this court in his

statement recorded U/s 313 Cr PC about having purchased a car no.

DL1CB 7874 and motor bike no. DL1SD 4680 and also having stayed in

Hotel Kanishka on 02.8.92. Said accused is involved in several cases of

heinous offences as disclosed above.

63. Accused Nitin Shah also denied wrongly the fact about

employment of deceased Lalit Kumar Suneja with Simnit Enterprises being

run by him i.e accused.

64. Can in these circumstances, it be presumed that accused Om

Prakash Srivastava and Nitin Shah were involved in the murder of deceased

Lalit Suneja ?

65. The Code of Criminal Procedure 1973 lays down procedure for

trial of all criminal cases except any special form of procedure prescribed by

any other law for the time being in force. The Indian Evidence Act, 1872

28

applies to all judicial proceedings here in India. Our lawmakers did not

implant any principle in criminal law like 'Res Ipsa Loquter' which means

'the thing speaks for itself' when the evidence explains only one thing and i.e

that the accident could not ordinarily occur unless the defendant had been

negligent. The law raises a presumption of negligence on the part of the

defendant. Though certain circumstances are enumerated by The Indian

Evidence Act where court can or has to presume existence of certain facts.

66. Section 114 of The Indian Evidence Act is one of such examples.

Before pondering over the presumptions which can be drawn in this case, I

think it will be apt in the circumstances to peek in the question as how a

fact is taken as proved.

67. Section 3 of The Indian Evidence Act defines as '' a fact is said to

be proved when, after considering the matter before it, the court either

believes it to exist , or considers its existence so probable that a prudent man

ought, under the circumstances of the particular case, to act upon the

supposition that it exists''.

There can be anyone of two propositions that-

(i)The court either believes it to exist or

(ii)Considers its existence so probable that a prudent man, underthe circumstances of the particular case act upon the supposition

that it exists.

68. All this makes it clear that for a fact to be proved, it is not

necessary that court should believe its existence at all costs, rather it will

suffice to establish a circumstance, when a person possessing simply a

29

motherwit can act upon it thinking that it exists.

69. The law adopts yardstick of a ''prudent'' and that '' an ordinary

prudent'' person and not of a ''reprehending critic'', perhaps because law is

not cloned in vacuums of laboratories. It develops in public, aired by

customs, traditions and general behaviour of masses exposed while

interacting with others. In this way, subject matter of law is laity and not the

experts only.

70. There is no denial that cardinal principle of criminal law is that,

prosecution has to prove its case beyond reasonable doubts. The reasonable

doubt means that there is some reason, to doubt existence of fact in issue.

Even if there is any scope of doubt, but if it is a doubt not supported by any

reason, the court is not obliged to conclude that fact remained doubtful. If

prosecution has established a fact prima facie, now it shifts to the other side,

to give some fact supported by a reason pointing towards doubt upon the

probity of fact. Commenting upon presumptions, which court can draw U/s

114 of The Indian Evidence Act, it was held by the apex court in Sajjan

Singh Vs State of Punjab AIR 1964 SC 464 (467-468).

This is a deliberate departure from the ordinary principleof criminal jurisprudence, under which the burden of provingthe guilt of the accused in criminal proceedings liesall the way on the prosecution. Under the provisionof this sub section the burden on the prosecution toprove the guilt of the accused must be held to bedischarged if certain facts as mentioned there in areproved and then burden shifts to the accused and theaccused has to prove that in spite of the assets beingdisproportionate to his known source of income, heis guilty of the offence.

30

71. Though there appears some conflict between the presumption

which court can draw in view of Section 114 of the Indian Evidence Act

with the presumption of innocence of accused but same is not true in fact. It

is clarified by the apex court in case Hitel P Dalal Vs Bratinder Nath

Banerjee (2001) 6 SCC 16.

Presumes are rules of evidence and do not conflict with presumption of innocence, because by the latter, all that is meant as that the prosecution is obliged to prove the case against the accused beyondreasonable doubt. The obligation on thepresumption may be discharged with thehelp of presumptions of law or fact unlessaccused adduces evidence showing thereasonable possibility of the non existenceof the presumed fact.

72. It has been well settled that '' beyond reasonable doubts'' never

means that “beyond probability of any doubt''. All this makes it clear that

law tolerates scope of a slight doubt. Writing a judgment for the apex court

in case Inder Singh and Another Vs State (Delhi Administration)

(SUPRA) Hon'ble Justice V.R. Krishna Iyer while stressing upon the

principle of proof beyond reasonable doubt held that-

While it is necessary that proof beyond reasonabledoubt should be adduced in all criminal cases, it is notnecessary that it should be perfect. If a case is provedtoo perfectly, it is argued that it is artificial; if a casehas some flaws, inevitable because human beings areprone to err, it is argued that it is too imperfect. Onewonders whether in the many guilty men must becallously allowed to escape. Proof beyond reasonabledoubt is a guideline, not a fetish and guilty mancannot get away with it because truth suffers someinfirmity when projected through human processes.Judicial quest for perfect proof often accounts forpolice presentation of fool-proof concoction. Why

31

fake up? Because the court asks for manufacture tomake truth look true? No, we must be realistic.

73. Sure enough, if an offender is allowed to beat the rap, it is a

mistrust to the society and if an innocent person is punished, it means an

attack on the fundamental right of life and liberty of a person. The court has

to watch both of these ends simultaneously. An even balanced scale of

justice should not be tilted towards accused by using personal liberty of an

accused as makeweight, at the risk of lives and properties of millions of

unrepresented masses.

74. In a case State of U.P Vs Anil Singh 1988 (3) Crimes 367 (370-

371), their Lordships of Supreme Court of India cautioned that it is

necessary to prove that a judge does not presides over court not to see that no

innocent is punished. A judge also presides to see that guilty man is not

escaped. One is as important as the other.

75. The use of words ''may presume'' in section 114 of The Indian

Evidence Act leaves it to the discretion of courts to draw an inference.

Guiding lines for the courts are enumerated as that they may presume

existence of any fact which was likely to have happened in regard to-

(a)the common course of natural events

(b)human conduct

(c)public and private business.

76. If it is established on record that an event took place in India in

the month of December or January of a year, the court can presume that it

32

was season of winter and there is no need to adduce evidence in this regard,

even if 'season of incident' was in issue. Similarly the court can infer about

the human conduct as how a person behaves in any particular circumstance.

77. In the opinion of Huesmann 1994, the aggression is an

intentional inflictions of some form of harm on others and is an all too

common form of social behaviour.

78. Karnard Lorenj, a noble prize winning scientist proposed that

aggression springs mainly from an inherited fighting instinct that human

beings share with many other species.

79. It was observed by Barnard Bersoln and Garry A. Steiner in

their book ''Human Behaviour, An Inventory of Scientific Findings'' that

human behaviour is far more variable and therefore less predictable, then

that of any other species. The repertoire and range of behaviour available to

any given man, as well the range that exists across men is far broader than

anywhere else in the animal kingdom. This is because Human behaviour is

more dependent upon learning and less regulated by instinct or other innate

behavioral predispositions than the behaviour of lower animals. Man has

few if any specific, innate behavioral responses of that kind.

80. Jammes, (1844/1890) talked about 32 different instinctive

behaviour tendencies while Mc Dougal (1908) spoke about dozen such

instincts. Barnard (1924, 1926) detected 5684 behaviour patterns that were

designated as instinctive. Not surprisingly, than hostile and aggressive

33

behaviours were subsumed under this heading.

81. Adler (1927) for example proposed that all human behaviour, in

final analysis derives from one single instinct- “the will to power” which he

later referred to as the ''striving for superiority''.

82. Ardrey (1966) posited that human behaviour is spurred by one

major force i.e. possession or property instinct so called territorial

imperative.

83. Schultz-Hencke (1940,1951) acknowledged these two instincts

and added sexuality as a third, thus arriving at a three instinct proposal of

sex, power and possession to accommodate all human behaviour.

84. May I reiterate here, even as per admission of accused Nitin Shah

same had a dispute with deceased Lalit Suneja on some payments, it can be

taken to be a motive to to obviate such an employee. Without accepting any

such intention on the part of said accused, it is argued by Sh. Ponda advocate

that motive, even if established, was not sufficient for conviction of an

accused. Ld counsel referred here a case titled as Nasir Yusuf Shaikh Vs.

State of Maharastra 2005 All. MR (Cri.) 318 where it was held that-

Motive by itself would not be sufficient to secure a conviction,court must consider if there are other supporting circumstanceswhich form further links in order to complete the chain of circumstantial evidence.

85. There is no dispute over this finding of Bombay High Court but

motive is not the only fact established in this case, hence cited authority is of

no help to accused Nitin Shah.

86. As per complaint Ex.Pw15/A1, the deceased had apprehended

34

danger to his life. Accused Om Prakash Srivastava and Nitin Shah were

alleged to have threatened him. As discussed earlier, it is proved that both of

said accused had participated in that meeting, held in Jucasso Inn, Sunder

Nagar, New Delhi. All this is enough to show the eagerness of both of said

accused in settling the dispute. It is observed here that when a man intends to

do some task, mind proposes certain ways and methods to fulfill the design

and the intender strives to achieve the desired result. May I repeat here that

accused Om Prakash Srivastava is facing trials in many cases of murder,

conspiracy to commit murder etc as it is disclosed earlier.

87. Considering the basic instincts and behaviour of a human being

in particular circumstances, as discussed above, in my opinion an ordinary

prudent person could have presumed only the assertion that both of said

accused i.e Om Prakash Srivastava and Nitin Shah were responsible in the

killing of deceased Lalit Suneja.

88. It was directed by the Supreme Court of India in case M.

Narsinga Rao Vs. State of A.P 2001 (Criminal Law Journal) 515 (220)

SC that unless presumption is disproved or dispelled, the court can treat the

presumption as tentamount to proof.

89. Both of accused persons namely Om Prakash Srivastava and

Nitin Shah are hence convicted for offence of entering into a conspiracy to

commit murder of Lalit Suneja (deceased) punishable U/s 120 B IPC r/w

section 302 IPC.

90. There is nothing on record to implicate accused Manjit Singh for

any offence as is alleged against him, same is therefore acquitted for all the

35

offences charged with.

91. Pw15 Inspector Hanuman Dan claimed to have received a

complaint Ex.Pw15/A1 for investigation. It is admitted by this witness that

said complaint prima facie disclosed a cognizable offence punishable U/s

506 IPC. No FIR was got registered. Although Pw15 stated to have kept

watch on the circumstances pursuant to said complaint. I am unable to

restrain myself from commenting that it was a clear case of dereliction from

duty by a senior police officer like Pw15. A precious life could have been

saved if this witness had prompted to initiate legal proceedings after getting

FIR registered on said complaint.

92. If the police does not register FIR on the basis of a complaint

disclosing cognizable offence, the complainant has a remedy provided U/s

154 (3) Cr. PC by sending the substance of such information, in writing by

post to the Superintendent of police concerned. It does not absolve the

police officer concerned from his responsibility and this is not the sweet-

will of police officer to record the information about a cognizable offence or

not. The use of word ''shall be reduced to writing by him'' casts a duty

upon the incharge of police station to register the information in the relevant

register. If such officer denies or neglects in the recording such information,

in my opinion, the same amounts non performance of his duty, prescribed

by the law.

93. Let a copy of this judgment be sent to Commissioner of Police,

Delhi who may take legal action against erring police officer concerned, if

the same thinks it proper to do so.

36

94. May I express my disappointment over the callous

attitude of IO in investigation of the case, as per record, accused

Om Prakash Srivastava disclosed in the police custody through a

disclosure statement Ex.Pw26/A that he purchased the pistol used

in the crime in this case from one Satnam Fauzi r/o Vishnu Garden

and the same was concealed by him in the house of one

Member of Parliament, who in turn took said pistol along with

car used in crime to Ghonda, UP, from where the weapon

was sent to Nepal. The IO appears not to have investigated this

case from that angle and did not try properly to recover the weapon of

offence.

95. As discussed above, register no. 12 maintained in police station

Nizamuddin, New Delhi was tempered with and the same was

produced before this court in evidence. Section 193 of The Indian

Panel Code provides punishment for giving false evidence in

judicial proceedings. Moreover, section 194 and section 195 of IPC

also prescribe for punishment for giving or fabricating false evidence

though with intention to procure conviction of an accused. Apart

from that, section 196 IPC makes it an offence to use evidence known

to be false. Considering all this, I think a prima facie offence is made

out under aforesaid provisions for giving and fabricating false evidence

and also using the same as true though known to be false. A proper

complaint is being sent separately to the court of Ld ACMM, KKD, Delhi

37

with a request to take cognizance of offence and to try the accused of such

offence as per law.

Announced in the open court. (RAJENDER KUMAR)On this 3rd day of July, 2006. Additional Sessions Judge

Karkardoodma Courts, Delhi.