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Delhi District Court

State vs 1. Ram Chander S/O Sh.Kishan on 28 May, 2009

                                        1             I.D.No.02402R0160282005

        IN THE COURT OF ADDITIONAL SESSIONS JUDGE
                  KARKARDOOMA :DELHI

SC No.29/08
FIR No.456/04
PS Mayur Vihar
U/S 302/34 IPC


                STATE vs         1. Ram Chander s/o Sh.Kishan
                                    r/o 24/336,Trilokpuri,Delhi
                                 2. Maan Singh s/o Sh.Sunder Singh
                                    r/o 24/282 ,Trilokpuri, Delhi
                                 3. Rajesh Kumar, s/o Sh.Kishan
                                    r/o 24/331,Trilokpuri, Delhi
                                 4. Rakesh, s/o Sh.Kishan
                                    r/o 24/331, Trilokpuri, Delhi

                                                Date of institution: 21.4.2005
                                                Judgment reserved on: 28.5.09
                                                Date of decision: 28.5.09

JUDGMENT

1. Briefly stated, the case of prosecution is that at about 9.23p.m. on 26.12.2004 ASI Ram Singh informed on wireless that a quarrel and pelting of stones has occurred in the first Gali at Cambridge School, 24 block, Trilok Puri in the area of PS Mayur Vihar . This information was recorded as DD No.24-A Ex.PW8/F which was marked to SI Mange Ram(PW19). SI Mange Ram reported vide DD No. 4-A dated 27.12.2004 Ex.PW8/G. As per DD Ex.8/G SI Mange Ram found that a quarrel after consuming liquor had taken place and Amit s/o Ram Lotan is already shifted to LBS hospital. His friend Manoj had taken him to LBS hospital 2 I.D.No.02402R0160282005 in unconscious condition. He left ct. Khurshid at the spot and went to LBS hospital. He procured the MLC of injured and found the injured admitted in the hospital in unconscious condition . Doctor gave opinion "under observation blunt". PW19 found no witness at the spot and nobody informed him about the person who caused the injury. On investigation ,Pw19 found that a quarrel after consuming liquor had taken place between themselves. The matter was reported to the SHO and DD was kept pending under investigation. Further investigation of case was carried out by Inspector Rajeev Midha(PW17). He alongwith SI Onkar Singh(PW16) and Ct. Sant Kumar(PW6) reached at GTB Hospital in a Govt. vehicle no.DL1CF-4250, where he came to know that Amit was admitted in the LBS Hospital on 26.12.04 . Amit was referred to GTB hospital, where he was declared dead. Sandeep(PW2) , the brother of deceased made statement to the IO(PW17) to the effect that he was residing along with his parents. On 26.12.04 Sunday, his brother Amit had gone to the market at about 7:30 P.M. along with his friend Rajender. PW2 was present in his house. At about 8:30 P.M. Rajender came and informed him that Rakesh @ Phatka, Rajesh , Ram Chander & Maan Singh were beating Amit . On that he reached at spot running. He saw that Rakesh @ Phatka & Ram Chander had caught hold of Amit, whereas Rajesh was beating his brother with a piece of stone silli and Maan Singh was beating with lathi.

Rajesh was uttering that "saley ka kaam tamaam kar do". He raised alarm . All the four persons fled away from the spot. His brother Amit fell down on the ground after sustaining injuries. He stated that he removed Amit to LBS hospital in a red colour Maruti Van belonging to Vipin with the help of Manoj . On 27.12.04, Amit was referred to GTB Hospital, where he expired on 28.12.04. On the statement of PW2 Sandeep FIR No.456/04 u/s 302/34 IPC was registered on 28.12.2004 at PS Mayur Vihar. IO called the crime team at mortuary and recorded the statement of Rajender S/o Sh. Mehar Chand at mortuary, GTB hospital. IO/inspector Rajeev Midha prepared inquest report and photographs of the dead body were taken by photographer . The Viscera and blood sample were preserved. The blood stained clothes of the deceased were produced by Sh. Ram Asrey before the IO which were taken into possession by IO. After the postmortem, the dead body was handed over to Sandeep. IO reached at the spot of occurrence which was photographed and prepared site plan . The blood stained sand/earth was lifted from the spot and seized. Accused were arrested on 28.12.04 and interrogated. Their foot wears were seized and disclosure statement were recorded by the IO. The accused Rajesh Kumar got recovered two pieces of stone/silly which were seized by the IO. Maan Singh got recovered one wood sticks from beneath the sofa at the ground floor of 24/282-83, Trilok Puri which were 4 I.D.No.02402R0160282005 seized and deposited in Malkhana. The wood sticks and silly were sent to GTB hospital for opinion. The opinion of autopsy surgeon GTB hospital was obtained . During the investigation the exhibits seized were sent to FSL Rohini. IO prepared the charge sheet on completion of investigation and filed the same in the court on 24.03.2005.

2. Upon committal of the case to the court of Sessions, on 8.7.05 charge u/s 302/34 IPC was framed against all the accused to which they pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as twenty one witnesses namely PW1 Rajender, PW2 Sandeep, PW3 Ram Asare, PW4 Dr. Ajay Kumar ,Sr.Resident , Safdarjung Hospital, PW5 Ct. Sanjeev, PW6 Ct. Sant Kumar, PW7 Ct. Satbeer, PW8 HC Rewti Prasad, PW9 HC Pratap Singh, PW10 Ct. Ramesh Kumar, PW11 HC Banne Singh, PW12 Manoj Kumar, PW13 Ct. Giriraj, PW 14 HC Jai Prakash, PW15 HC Somveer, PW16 SI Onkar Singh , PW17 IO/Inspector Rajeev Midha. PW18 is Ct. Sonu Kaushik, PW19 SI Mange Ram (Retired), PW20 Dr. Sushil Kumar,Casulty Medical Officer,LBS Hospital, PW21 Dr. R.K. Sareen,Deputy Director, CFL,Hyderabad .

Statement of accused

3. On conclusion of prosecution evidence, statement of accused persons u/s 313 Cr.P.C. was recorded. Accused stated 5 I.D.No.02402R0160282005 that they were innocent and falsely implicated in this case. Accused Ram Chander,Rajesh and Rakesh stated that before the alleged incident, deceased Amit alongwith his friends used to come in their gali and indulge in eve-teasing. and Amit and his friends used to pass indecent remarks to the girls. Accused stated that this was objected to by them, their father Sh.Kishan and the persons residing infront of their house. Amit and his friends uttered that they would visit the mohalla in the same fashion and nobody could stop them from indulging in their activities. Amit and his friends used to say to their father that if he would object too much, he and his friends would get him and his sons implicated in a false criminal case. Accused stated that on 26.12.04 at night time Amit alongwith his friends came in drunkard condition and they started pelting stones on their house and on the houses of persons living in front of their house indiscriminately. As a result of this pelting of stones, the door of their house also got damaged and due to the pelting of stones, their ladies members who were inmates of the house at that time, told them and to his father about the pelting of stones. Lady inmates closed the door and other people in front of our house, also closed the door of their house. Accused stated that Amit and his friends were drunk and they started quarreling with each other and started pelting stones on each of them among themselves. Amit sustained injury due to the pelting of stone by his friends 6 I.D.No.02402R0160282005 who were accompanying him at that time . Accused stated that Ram Chander had gone alongwith his father Sh.Kishan and his brother Rakesh for selling their wares on a rehari in Sunday Market at Mandawali on that day. Accused stated that they were not present at the house at the time of alleged incident and were not involved in the incident in any manner . They have been falsely implicated and were innocent.

Accused Maan Singh stated that he was innocent and victim of the atrocities of the police. The police had falsely implicated him in this false and fabricated case and nothing had been recovered or discovered at his instance at any point of time.

Accused produced defence witnesses namely Smt.Usha as DW1, Smt.Hasmukhi as DW2 ,Sh.Krishan as DW3 , HC Rishi Pal as DW4 , DW5 HC Braham Singh .

4. I have heard Sh.Taufiq Ahmed Ld.Additional PP for the state , Sh.A.K.Choudhary and Sh.A.K.Goel , ld. defence counsels and have perused the material on record carefully .

5. PW1 deposed that on 26.12.04 at about 7.30p.m. or 8.00p.m. he alongwith Amit had gone for roaming in the market. Accused persons namely, Ram Chander, Rakesh and Rajesh caught hold of PW1 Rajender and Amit. They started giving fist blow to Amit. PW1 Rajender called Sandeep from his house. Ram Chander and Rakesh caught hold Amit and Rajesh gave a stone blow to Amit. In the mean time he gave stone blow on the 7 I.D.No.02402R0160282005 body of Amit. PW1 deposed that Rajesh exhorted Rakesh and Ram Chander that "Kam Tamam Kar Do". Consequently, Amit fell down immediately. PW1 Rajender raised alarm. All the aforesaid persons ran away from the spot. PW1 chased them. In the mean time, Sandeep and his friend Manoj came there and took Amit to LBS hospital. PW1 Rajender had also reached there subsequently. The injured was referred to GTB hospital and succumbed to injuries in the hospital. SHO reached there and recorded the statement of Rajender. Accused Rakesh was arrested from his house on the same day. Ram Chander was arrested from Sanjay Jheel Park. Rajesh was arrested from 18 Block Safeda Park. Maan Singh was also arrested. PW1 deposed that the quarrel had taken place in front of the house of Maan Singh. Maan Singh told them not to quarrel in front of his house and on his objection, the quarrel had taken place at some distance near his house. He brought out a danda. He was confronted by the ld.APP on the point of giving beatings to Amit and PW1 Rajender denied that accused Maan Singh was beating Amit. PW1 was cross examined by ld. Additional PP . PW1 denied that Maan Singh was beating Amit with lathi. He denied that he had stated to the police in his statement that accused Maan Singh had given beating to Amit with lathi. He denied that he joined hands with Maan Singh or was deposing falsely in order to save him. In the cross examination by ld.defence counsel PW1 deposed that on 8 I.D.No.02402R0160282005 26.12.04 they had gone to the market after having some drinks to take samosas. He deposed that one can arrive in the PS by walking between 5to 10 minutes but if somebody goes to the PS while running it will take 2-3 minutes. He did not lodged any report with the police on 26.12.04. He deposed that police had met him in the hospital on 26.12.04 but his statement was not recorded on that day .He had talked to the police in LBS on 26.12.04 .He did not go to the PS on 26.12.04 or 27.12.04. In his presence nobody lodged report on 26.12.04 or 27.12.04 . He could not tell the number of the maruti car belonging to Vipin. He stated that Manoj had helped him in lifting the injured. No police person had come to the spot in his presence. He arrived in the hospital after 15 minutes. It was approximately about 9p.m. Police was present in the LBS hospital when he arrived there. Mother of Amit and Sandeep was also present in the hospital. Vipin and Manoj were present. He deposed that one house was being constructed near the spot.

6. PW2 Sandeep deposed that deceased was his elder brother . On 26.12.04, his brother Amit had gone to market with PW1 Rajender. It was Sunday and PW2 Sandeep was present in his house at that time. At about 8.30 p.m. PW1 came to him running and informed that his brother was involved in a quarrel. PW2 Sandeep came to Gali no.24/331, alongwith Rajender and saw that Ram Chander and Rakesh had caught hold Amit. He 9 I.D.No.02402R0160282005 watched the incident from a distance. Accused Rajesh was armed with a stone silly and exhorted his associates by stating "iska kaam tamam kar do". Accused Maan Singh gave danda blow on the person of Amit but again stated on the head of Amit. Accused Rajesh also gave silly blow on his head . Vipin was having red colour Maruti car. Manoj helped him to take Amit to LBS Hospital in the car. In the evening Amit was referred to GTB hospital. On the next day, his brother succumbed to his injuries. He stated that his statement Ex.PW2/A was recorded in the hospital . PW2 Sandeep pointed out the place of occurrence and IO prepared site plan Ex.PW9/DA. In the cross examination,PW2 deposed that his house was situated at the distance of about half km from the spot. PW2 deposed that police met him in LBS Hospital and he had narrated the incident to them and he had told the names of the accused to the police on 26.12.04 in LBS Hospital. He deposed that he did not took the police to arrest the accused on 26.12.04 and he stayed in the hospital from 26.12.04 to 28.12.04. Police had come to record the statement of his brother on 26.12.04 at LBS Hospital, but his brother was unconscious and therefore , his statement could not be recorded . Police also came at LBS Hospital twice or thrice on 27.12.04 but did not come in GTB Hospital , after Amit was shifted to GTB Hospital in the evening of 27.12.04.Police did not took him to the spot on 27.12.04. He further stated that he was taken to spot on 10 I.D.No.02402R0160282005 28.12.04. PW2 deposed that Manoj and he together got the victim admitted in the LBS hospital and this incident took place 10/15 mts. away from the house of accused Maan Singh. PW2 deposed that he did not make any complaint in the P.S on 26th or 27th of December .He did not approach the higher police officials .PW2 and Manoj had told the Doctor , how the victim received injuries. Amit was bleeding at that time from his head . He deposed that they did not tell the name of the assailants to the Doctor. The victim and Rajender did not took drinks before leaving the house. PW2 deposed that his parents were also present in the house and his younger brother Neeraj aged 20 years was present. Rajender gave information to him only. He was called outside the house and was informed about the quarrel and he did not tell his parents that he was going to the spot and he could not tell the number of maruti car in which the victim was removed to the hospital. Vipin was driving the car. PW2 deposed that he saw Rajender in the hospital at about 8.45p.m. . He had asked Rajender to inform his parents before he left for the hospital. He deposed that one can reach the PS within five minutes from the spot. He did not ask anybody to report the matter to the police. He admitted that place of occurrence was thickly populated area and in his presence police did not make any enquiry from the local people. He did not know whether Rajender was accompanied by anybody else but he saw him alone. He denied that his brother Amit received injuries 11 I.D.No.02402R0160282005 due to pelting of stones by his friends who were drunk at that time. He denied that the accused did not caused any injury to Amit. PW2 deposed that after getting his brother admitted in the hospital, he again visited the spot with the police on 28.12.04. He did not remember if any police official were present at the spot to protect the spot.

7. PW3 Ram Asare deposed that on 28.12.04 he had gone to GTB hospital to see Amit son of his brother in law and came to know that he had already expired. In his presence the blood stained clothes of the deceased were seized by the police vide memo Ex.PW3/A. He identified the clothes of the deceased as P1 to P3 . PW4 Dr. Ajay Kumar testified that on 28.12.04 at about 3.05 p.m. he conducted postmortem on the dead body of Amit with alleged history of assault. PW4 deposed that smell of alcohol was coming from his mouth. He was referred to GTB hospital where he expired on the same day at about 6.07 a.m. On external examination of the body, Doctor found ante mortem injuries

-(i)Stich lacerated wound, 7 stiches, 7cms length obliquely place over the vertex of head 11 cms above tip of left pinna(ear). To left of mid line going backward upto 3cms to right of middle of vertex of head with underline fracture of the skull bone.

(ii)Superficial lafercated wound 1.1x05 cms over the right parietal eminence.(iii)Lacerated wound 1x1.04 and to wound deep over the left parietal region 5.5cms above the tip of left 12 I.D.No.02402R0160282005 pinna.(iv)Raddish brown abrasin 5.x1.5 cms over the left side of face just in front of left tragus and involving of pinna outside also.

(v)grazed raddish brown abrasin 4x2 cms placed 3cms above the left knee joint in the front.(vi)Grazed raddish abrasion 5x2.5 cms over the upper outer back of left forearm 6cms below tip of elbow joint.(vii)Grazed raddish abrasion 6x3.1cms over the lower one third of back of left forearm 4x3 cms above waist joing.(viii)Raddish abrasion 1x0.5cms over the dorsum of left hand 2cm below the waist joing outer side at the base of second metacarpal.(ix)Raddish abrasion 2x1 cms placed 1cm below injury no.8. PW4 deposed that after postmortem he prepared postmortem report Ex.PW4/A in his own hand. He opined that the cause of death was due to shock as a result of injury to head and spine. All the injuries were antemortem and caused by blunt force impact. Injury to head and spinal cord were sufficient to cause death in ordinary court of nature. PW4 deposed that on 14.1.05 an application was moved by SHO PS Mayur Vihar for obtaining opinion whether the injuries beard on the deceased head could be caused by danda and stone and any other opinion or information useful for investigation of the case.The SHO handed over him two sealed parcels said to be containing the weapon of offence in the abovesaid case i.e. P-1 and P-2A/P-2B.P-1 Parcel was sealed under the seal of RM and containing rounded wooden danda with on rectangular shape .Maximum length of rounded part was 69 13 I.D.No.02402R0160282005 cms aprox.and rectungar part 8.3cms.The circumfrance of rounded part was 10.5cms and of rectangular part was 14cms.Brownish blood like stains present over rectangular part,signed encircled. Parcel P-2 was sealed under the seal of RM bearing 9 intacts seals and contained two stones,P-2/A(Big stone) and P-2B(small).Weight of P-2/A,big stone was 4kg approx. and weight of small stone was half kg approx.Both stones were having brownish blood like stains at places encircled and signed. PW4 deposed that after examination of the weapons and considering the PM report the injury mentioned were caused by blunt force impact and could be caused by the weapons under the examination. PW4 gave his detailed subsequent opinion Ex.PW4/B. In the cross examination PW4 admitted that Professor A.K.Tyagi was senior doctor in the hospital at the relevant time and he was working under his supervision. PW4 deposed that Professor A.K.Tyagi was present when he had examined Ex.P2 . He admitted that Ex.P2 was a common wooden danda and easily available in the market . He admitted that the blood groups were easily available in the blood bank of the hospitals. He admitted that when the object/article like P2 are having blood stains wrapped with cloth or paper, the blood stains on the object also come on the wrapped paper or cloth. PW4 admitted that the cloth in which Ex.P2 was wrapped was not blood stained under outer or inner side both which are now 14 I.D.No.02402R0160282005 exhibited as Ex.P3/DA. He admitted that at the time of giving opinion, he had not received the sketch of Ex.P2 from the police. PW4 deposed that the blood stains could come on the stones when the body fall on the stones lying on the surface. He admitted that he had not mentioned in his opinion dated 14.1.05 that by which particular weapon the injuries were possible on the person of deceased and such types of stones were easily available in the market. He had not prepared the MLC.

8. PW5 Ct. Sanjeev deposed that he received seven sealed parcels in the sealed condition for onward transmission to FSL Rohini. He deposited five sealed parcels in FSL Rohini and stated that remaining two parcels could not be deposited due to objections. He handed over the copy of RC and two remaining parcels to MHCM. PW5 deposed that he did not know as to what was the objection raised by the concerned clerk at FSL Rohini for not depositing those two pulandas . PW6 deposed that on 28.12.04, on the receipt of DD no.11-A, he alongwith SI Onkar Singh and SHO Inspector Rajeev had gone to GTB mortuary. SHO handed over rukka to him and he got recorded the FIR. He went again to mortury at about 1.45 p.m. and handed over copy of the FIR and rukka to inspector Rajeev Midha. PW6 remained with dead body in the mortuary during the postmortem. In his presence Ram Aasre handed over the clothes of the deceased which were seized by the IO vide Ex.PW3/A. He identified the 15 I.D.No.02402R0160282005 clothes of the deceased Ex.P1 to P3. PW6 in his cross examination deposed that he did not notice on whose statement the rukka was prepared by IO, but it was recorded by the SHO inspector Rajeev Midha in the mortury. It was not recorded in his presence. PW7 had taken exhibits to MHCM for onward transmission to FSL Rohini, but same could not be deposited due to some objection. He gave these exhibits to MHCM. In cross examination,PW7 deposed that he did not know what objection were raised by the officials at the FSL.PW8 was working as duty officer on 28.12.04 . At about 10.00 a.m. he received information from HC Gyanender Singh of GTB hospital that Amit had expired at about 8.07 a.m. He recorded DD no.11-A vide Ex.PW8/A and handed over the same to SI Onkar. On the same day, at about 1.15 p.m. he received rukka , on the basis of which he recorded the FIR vide Ex.PW8/B. He recorded the substance of FIR vide DD no. 14 & 15 vide Ex.PW8/C and Ex.PW8/D. He sent the said DD to SHO and made endorsement on the rukka vide Ex.PW8/E. PW8 produced DD record containing DD no.24-A dated 26.12.04 and DD no.4-A dated 27.12.04 Ex.PW8/F and Ex.PW8/G. In the cross examination PW8 deposed that firstly he recorded the substance of FIR and then he recorded DD NO.14 at about 1.15p.m. He admitted that there was overwriting on the rukka in the figure bearing the house no. and also on the word ''dt'' at point X and X-1. PW9 deposed that on 28.12.04 he 16 I.D.No.02402R0160282005 alongwith SI and IO Rajeev Midha reached at 24 block infront of house no. 331 where IO prepared site plan at the instance of brother of the deceased. IO collected blood stained earth and seized the same vide memo Ex.PW9/A. On the same day at about 5.00 p.m. the accused Rajesh was apprehended by him at the instance of Rajender and Sandeep . When accused Rajesh was being interrogated by the police party an information was received that accused Rakesh is present in a park near Trilok Puri, 18 Block and at the instance of Rajender and brother of deceased , Rakesh was arrested. Thereafter, police party received information that accused Maan Singh is moving in the area of 36 Block, Indra Market. The accused Maan Singh was apprehended at the instance of Rajender and brother of the deceased. All the accused persons were taken to PS and interrogated. They were arrested . Accused Ram Chander was arrested near Sanjay Jheel, 13, Block, Trilok Puri . The disclosure statement of accused Maan Singh, Ram Chander, Rakesh and Rajesh were recorded . PW9 deposed that accused Maan Singh pointed out the place of occurrence i.e. 24 Block, in front of house no.331, Trilok Puri, Delhi vide Ex.PW9/L. One pair of Hawai chappal worn by accused Ram Chander and one pair of shoes of accused Maan Singh was taken into possession vide Memo Ex.PW9/M and Ex.PW9/N .One pair of shoes each of accused Rakesh and Rajesh were also seized vide memo Ex.PW9/O and Ex.PW9/P. 17 I.D.No.02402R0160282005 Two pieces of stones (silly) were lifted from the spot vide memo Ex.PW9/Q. PW9 deposed that accused Maan Singh led the police party to his house at 24 Block Trilok Puri and produced one danda lying beneath the Sofa Set in his house which was taken into possession vide memo Ex.PW9/R. In cross examination , PW9 deposed that he had not signed the site plan prepared by inspector Rajeev Midha. Rajender and Sandeep were present when the site plan was prepared. He deposed that the IO prepared the site plan while standing at the spot roughly. He did not remember whether any public witness was called by the IO when the site plan was prepared by him. PW9 did not remember whether the site was protected through any body or through placing of any barricades. There was no hindrance or any restriction for going to the spot by the public persons or any body else. PW9 deposed that blood sample and earth control were lifted from two places but at that time no public person was joined in the proceedings. No arrival entry was made in the rojnamcha when they returned to PS. PW9 stated that the memo regarding the seizure of the stone was prepared by him at the instance of IO. PW9 admitted that these type of stones were easily available in the market as well as on the road. PW9 deposed that the seizure memo of stones were prepared at around 7:30 and the police party was not having knowledge regarding the stones. The stones were not concealed but were lying open and the place was accessible to 18 I.D.No.02402R0160282005 all. PW9 admitted that shoes which were worn by accused Rakesh Kumar and Rajesh and pair of chappal of accused Ram Chander were easily available in the market. He could not tell the reason why shoes and chappals were seized by the IO. PW9 did not remember to whom the seal was handed over by the IO.PW9 admitted that the seizure memo does not mentions that whom the seal was handed over. He did not remember when IO got back his seal and from whom. PW9 deposed that no public witness was joined near Sanjay Jheel from where accused Ram Chander was apprehended. He admitted that stones produced from malkhana does not bear any specific mark for identification. PW9 admitted that he was having information about the incident on 26.12.04 itself. He had not seen whether the SHO had visited the spot or hospital on 26 or 27 December 2004 however PW9 was present in the PS. PW9 was not aware whether any of the relative of the deceased visited the PS on 26/27 December, 2004 regarding the incident. He deposed that on the relevant time SI Mange Ram was posted in the PS. He admitted that he had the information about the quarrel in the 24 block on 26.12.04but it was not for pelting stones amongst the public. After seeing Ex.PW8/F he admitted that the facts about pelting stones were mentioned in the DD No.24A dated 26.12.04. PW9 deposed that at 2.45/3p.m. he received a call on his mobile phone from Chittah Munshi/DO of the PS Mayur Vihar regarding the murder of deceased and he 19 I.D.No.02402R0160282005 was directed to reach at the spot. PW9 admitted that when he reached at spot, number of people had gathered there. Mohalla people who gathered there were 5-7 persons.There were dwelling houses of both sides of gali and people used to live there with their families.

9. PW10 Ct.Ramesh Kumar deposed that on 28.12.04 he took the photographs Ex.P1 to P11 . He had brought negative of photograph Ex.P12 to P22. PW11 HC Banne Singh was MHCM on 28.12.04 . He received 9 sealed parcels from SI Onkar with the seal of RM vide entry no.1272 of register no.19 vide copy Ex.PW11/A . On 2.3.05 he handed over 5 sealed parcels to ct.Sanjeev Kumar vide RC No.153/21 for sending the same to FSL Rohini. On 25.2.05 five sealed parcels were deposited at FSL Rohini through ct.Jai Prakash vide RCNO.150/21 . On 29.3.06 sealed parcel containing viscera was sent to CFSL Hyderabad through ct.Balwan vide RCNO.146/21. On 30.5.05 he received five parcels from FSL Delhi through ct.Balvir alongwith FSL report which were sent vide RCNO.150/21. He deposed that on 28.6.06 five sealed pulanda were deposited in malkhana with the seal of FSL Delhi brought by ct.Rambir. The photocopy of entry of 5 sealed parcels sent to FSL Rohini through ct.Sanjeev Kumar vide Ex.PW11/B and the entry regarding sending the viscera on 25.2.05 to CFSL Hyderabad through ct.Balwan made at at Sl.No.929 of register no.19 pertaining to year 20 I.D.No.02402R0160282005 January,2005 vide Ex.PW11/C. PW12 Manoj deposed that on 26.12.04 when he was returning after having chicken from Block-26 he saw gathering of people at gali . He found his friend Amit lying on the road having head injury. He removed Amit to LBS hospital with the help of Rajender and Sandeep in a red colour maruti van and got him admitted . Sandeep had brought Vipin who was the owner of maruti van no.2347.PW12 deposed that some blood fell on the floor of the maruti van as well as their cloths were smeared with blood. PW12 did not give his blood smeared clothes to the police. PW13 ct.Giriraj deposed that he took 12 sealed parcels from malkhana for depositing the same at FSL Rohini but due to some objections raised by FSL Rohini he could not deposit the same on that day which were handed over again to MHCM . PW14 HC Jai Prakash deposed that he received 12 sealed parcels from MHCM for depositing the same at FSL Rohini. Out of the said 12 parcels seven were returned with objection and 5 were deposited.He returned the remaining 7 parcels to MHCM.PW15 HC Somveer has deposed that on 28.12.04 he alongwith inspector Rajeev Middha , SI Onkar Singh , HC Pratap Singh and Rajender Singh reached at house no.24/331, Trilokpuri . PW15 in cross examination deposed that the recovery memo of stone was prepared by PW17 . PW15 deposed that only one seizure memo of the recovered stone was prepared and PW17 Rajeev Midha himself prepared the memo of 21 I.D.No.02402R0160282005 stone. The writing work was done by Rajeev Midha by sitting on the stairs of house and memo was prepared by sitting there. The I.O himself prepared the sealed pulanda of the stone. PW15 further deposed that the place where the pieces of silli were lying in open space was accessible to all public persons. He further stated that the stones were brought to P.S around 7:30 P.M. H.C. Somveer deposed that he did not know whether any specific mark of identification was given by the Inst Rajeev Midha on the stones. HC Somveer deposed that the I.O had sealed the pulanda with the seal R.M. He did not remember whether I.O had kept the seal with himself or he handed over the same to other police person. HC Somveer deposed that he could not say since when the pieces of stone were lying there, neither any investigation was made by Inst Rajeev Midha in this regard. He stated that the spot was not protected through any police official. He deposed that the sealed pulanda of blood stained earth and earth control soil were sealed with the seal of R.M., but he did not know whether I.O retained the seal with himself or handed over to some police official . The aforesaid memo was prepared by the I.O himself.

10. PW16 deposed that DD NO.11A was handed over to him for investigation on 28.12.04 .Inspector Rajeev Midha recorded the statement of brother of deceased and prepared rukka. He got the case registered . Ram Ashray handed over the clothes to 22 I.D.No.02402R0160282005 inspector Rajeev Middha. same were taken into possession by the IO vide seizure memo Ex.PW3/A. IO also conducted the inquest proceedings u/s 174 Cr.P.C. of the deceased and after getting the postmortem conducted on the dead body of deceased same was handed over to Sandeep. He received the sealed parcel of viscera and blood sample and taken into possession vide Ex.PW16/A . He further deposed that he along with inspector Rajeev Middha and other police officials started search of accused persons and conducted raid at Block 24 Trilokpuri along with complainant Sandeep and Rajender and arrested the accused . He identified the blue colour jeans pant , T-shirt of pink and greyish colour, one banyan of white colour vide Ex.P1 to P3. PW16 SI Onkar Singh stated in his cross examination that they received DD Entry no. 11-A around 10:00 a.m. and left P.S. within 5 to 7 minutes. He along with cont. Sant Kumar was on scooter and Inst. Rajeev Midha was on Gypsy. He did not accompany them . PW17 Inspector Rajeev Midha deposed that on 28.12.04 on the receipt of DDNO.11A , he went with SI Onkar Singh to GTB hospital where he verified the facts mentioned in DD and met Sandeep the brother of the deceased and Rajender the friend of the deceased in the hospital. Statement of Sandeep was recorded and on the basis of which he prepared rukka and the case was got registered. The crime team was summoned and the photograph of place of occurrence were taken. PW17 conducted the inquest 23 I.D.No.02402R0160282005 proceeding . He got conducted the postmortem and the viscera was got preserved . PW17 got prepared the site plan at the instance of complainant vide Ex.PW9/DA . The accused persons were later on arrested and their disclosure statement were recorded . PW17 identified wooden danda Ex.P2 ,stones as Ex.P1 one grey colour chappal make Relaxo of accused Ram Chander as Ex.P3 collectively , shoes of accused Ex.P4 to P6 and clothes Ex.P7 .PW17 Ins. Rajeev Midha in his cross examination deposed that the place of recovery of silli was accessible to all. Ins. Rajeev Midha PW17 deposed that the handwriting of disclosure statement of all the accused were in the hand of HC Pratap Singh. PW17 deposed that the memo Ex.PW-9/Q was in the hand of HC Pratap. Ins Rajeev Midha had deposed the seal after use was handed over to HC Pratap. PW17 Inst Rajeev Midha deposed that the seiziure memo of concrete i.e PW-9/A was also in the handwriting of H.C. Pratap. He admitted that it has not been mentioned to whom the seal after use was handed over. Inst Rajeev Midha deposed that he got recorded the statement of Sandeep from S.I. Omkar Singh. He dictated SI Omkar Singh the statement of Sandeep outside the mortuary while sitting on bench. PW17 deposed that the endorsement was in the handwriting of SI Omkar Singh as he was having problem in his finger. Ins. Rajeev Midha, PW17 deposed that he along with the staff in his govt. vehicle and SI Onkar Singh and cont.

SantKumar, went to GTB Hospital. PW17 admitted that the death report EX.PW-17/A-1was not in his handwriting. He admitted that EX.PW-17/A-1 does not bear his signatures. He admitted that EX.PW-17/A-2 was not in his handwriting and was in the hand of S.I Onkar Singh, however it bears his signature . He deposed that he did not make any separate DD entry for his departure to the hospital on 28-12-04. Pw17 deposed that he had not shown the position of Sandeep and Rajender in the site plan in EX.PW-9/DA. Pw17 deposed that there was no specific mark of identification on sillies . He further deposed that no public witness was joined at the time of recovery of silli from the gali. Pw17 could not tell whether there were any blood stained marks on the shoes, chappals of the accused persons. He admitted that such type of shoes, chappals are easily available in the market. PW17 deposed that he did not make any local enquiry from house no. 24/330 and 24/329 and 24/328 or from any other house regarding the alleged incident. He did not make any enquiry from house no. 24/282/283, 24/284, 24/285, 24/286, 24/287, 24/289 and 24/290 regarding the alleged incident. PW17 did not know the name of the residents of the above houses as he did not make any enquiry from the residents of above houses .PW17 deposed that the pieces of stones sillies were sealed by him and cloth was procured from the market. PW17 deposed that he had sealed the stone sillies while placing the same on the bonnet of the jeep. He 25 I.D.No.02402R0160282005 came to know about the incident on the morning of 28-12-04 and prior to that he had not made any enquiry or investigation about this incident. He further deposed that he was on casual leave and returned from C.L. on 27.12.04. PW17 deposed that he recorded only the statements of Manoj and Vipin in his hand and the pulandas which were sent to FSL Rohini for five times for depositing the same and same were returned back during that period. Pw17 did not know by which constable the weapon of offence was sent to the concerned Doctor for getting his opinion. He had not gone personally for these weapons to the Doctor. PW17 did not remember the DD entry no. vide which these weapons were sent to Doctor for opinion. He did not remember whether he had given any authority letter to any constable for taking these weapon for opinion .Pw17 had not personally collected these weapons from the Doctor and had not given any authority to SI Onkar Singh for the collection of the same however he had orally directed him to collect the same. Pw17 admitted that the report u/s 173 /challan had been signed by him at three places , but it does not bear any date on these places. He admitted that the challan also does bear any date, where the signature of ACP Kalanpuri appear. PW17 deposed that he did not join any independent public witness, when he arrested the accused persons Rakesh, Rajesh and Ram Chander.

11. PW18 ct.Sonu Kaushik deposed that he accompanied IO-

PW17 to the spot at H.No.331 Block24 Trilokpuri, Delhi. At the instance of witness Sandeep he took rough note and measurement at the spot and prepared draft scaled site plan vide Ex.PW18/A. In the cross examination,PW18 admitted that he had not mentioned about the fact that the SHO was accompanying with him and instructed or pointed out the place of occurrence. He admitted that references B and C in Ex.Pw9/DB(Ex.PW18/A) had not been mentioned in rough unscaled site plan which was Ex.PW9/DA. He admitted that reference A of Ex.Pw9/DB(Ex.Pw18/A) was differently pointed out in rough unscaled site plan which was Ex.Pw9/DA. PW19 SI Mange Ram deposed that on 26.12.04 DD NO.24A from PCR was marked to him for investigation . He alongwith ct.Khursheed went at Block24 Cambridge School Gali No.1 Trilokpuri and came to know that injured has already been shifted to LBS hospital .He left ct.Khursheed at the spot and he went to LBS hospital where one Sandeep met him and informed that injured has been shifted to GTB hospital. He tried to search the parents of injured in the hospital. Thereafter he went to GTB hospital and met the injured in emergency ward who at that time he was in unconscious condition and the foul smell of alcohol was coming from the mouth of injured. On his return he got recorded DDNO.4A vide Ex.PW8/G. In cross examination PW19 deposed that on 26.12.04 he reached at the spot at about 9:30 P.M. The call was regarding 27 I.D.No.02402R0160282005 the throwing of stones and quarrel and he did not find any eye witness at the spot . He reached at LBS Hospital on the night of 26.12.04 at about 9:45 p.m. . The injured was found to be unfit for statement .He enquired Sandeep who was the brother of the injured about the incident but he showed his ignorance about the quarrel . That is why he did not recorded his statement as he had shown ignorance about the incident of quarrel if any. PW19 deposed that he also met the parents of the injured Amit at LBS Hospital and after visiting the GTB Hospital Sandeep did not met him in the GTB Hospital. Then he returned to the police station .He also visited the spot later on and from the enquiry he came to know that Amit had sustained injuries as he had a fight with his friend and he sustained injuries due to pelting of stones by his friends , so Amit sustained injuries. He also told these facts to SHO, Rajeev Midha, and he told him to keep the DD entry pending. PW19 recorded DD No. 4-A dated 27.12.04 at about 00:20 hrs[12:20 a.m. night]. This DD entry was in his hand.He deposed that he had perused the case diary before deposing in the court. He admitted that IO had not recorded his statement so it was not placed in the judicial file. PW19 remained at the spot about 15 minutes in total on 26.12.04. He admitted that he had not mentioned the fact that in the LBS hospital one Sandeep met him and informed that injured had been shifted to GTB hospital in DD No.24A dated 26.12.04 already exhibited as Ex.PW17/A3 and 28 I.D.No.02402R0160282005 DD No.4A dated 27.12.04 which was already exhibited as Ex.PW3/G. However the parents of injured met him outside LBS hospital but they did not tell him about the assailants or their whereabouts and similarly Sandeep did not tell him about the name of assailants. He admitted that in the GTB hospital also nobody including Sandeep and deceased parents had told him about the assailants. PW20 deposed that on 26.12.04 Amit s/o Ram Lotan aged about 24 years male was brought by his relative Manoj. He examined the injured vide MLC NO. 10848/04 Ex. PW20/A. The injured was admitted and referred in emergency ward under department of surgery for further management and detailed examination and also for medical opinion. PW21 Dr.R.K.Sareen Deputy Director CFSL Hyderabad deposed that on 28.3.06 he received one sealed wooden box containing viscera , 2 glass jars , 2 glass phials mark in CFSL Ex.1,2,3 and 4 respectively stated to be viscera of deceased Amit vide PM 1224/2004 dated 28.12.04. He examined the exhibits and analysed by physico chemical and chromotographic technique based upon the observation and found that common poison could not be detected in Ex. 1,2,3 and 4 and after the examination the remnants of the exhibits were sealed with the seal of CFSL, Toxicology Hyderabad . His report is Ex.PW21/A. Defence Evidence

12. Dw1 Usha w/o Maan Singh deposed that on 27.12.04 in 29 I.D.No.02402R0160282005 the evening at about 8p.m. two police persons came at their house and asked about her husband. Her husband had gone with the said police persons. Thereafter she came to know that her husband was falsely implicated who was innocent and has no concern with the present case. She was cross examined by ld.Additional PP for the state. She deposed that she could not tell the name of the police officials who visited her house. She had gone to police station alone to enquire regarding her husband later on. Police did not informed her that her husband was wanted in the present case. She remained in the police station for about 2 hours. She stated that police informed her that they would not release her husband and her husband can be released only after court order. She did not know Sandeep s/o Ramlotan, brother of deceased. Her family had no enmity with complainant Sandeep and she could not say why complainant Sandeep had named her husband in the present case as an accused. She did not made any written complaint to any higher police official to the effect that her husband had been falsely implicated in the present case. Dw2 Hasmukhi deposed that on 26.12.04 at about 7/7.30p.m. it was Sunday , 4-5 boys namely Malli, Rajsh, Amit(deceased) and other 2-3boys used to meet each other for a drinking sessions. They also used to come in the gali. They used to speak filthy language after taking drinks. she used to told them not to do such type of bad things. Sh.Krishan , father of Rajesh, Rakesh and Ramchander used to 30 I.D.No.02402R0160282005 object regarding their drinking as well as abusing in the gali as she was having her young daughters in the family. She deposed that the aforesaid boys alongwith the deceased Amit got annoyed when she and other neighbourers objected to their visit and abusing in the gali. They took ill of aforesaid objections raised by the mohalla persons including herself and Shri Krishan father of accused persons namely Ramchander,Rajesh and Rakesh, Amit and his friends threatened Shri Krishan as well as to her that they would involve them and their children in a false criminal case. She deposed that Amit and other boys who were accompanying him started pelting stones toward her house as well as at the house of accused persons mentioned above. Thereafter they started quarrelling with each other as they were in heavily drunkard condition. They also hit a stone upon Amit and dragged him as a result of which he sustained grievous injury. Accused persons Rajesh, Ramchander and Rakesh were not present at the spot at the time of incident .In their family, only ladies were present at the time of incident. They bolted their doors from inside as Amit and his friends were pelting stones at their house.She also bolted her door. She had gone to police station to narrate the aforesaid facts but police did not give any heed to her words. In the cross examination by ld.Additional PP, Dw2 deposed that nobody of the locality made any complaint against the persons having drinking sessions in the gali . One month prior 31 I.D.No.02402R0160282005 to date of incident she as well as Shri Krishan objected to the visit of Amit and his friends in the gali .She was not conversant with Amit as well as his friend Sandeep as they used to reside in the other galis of the same locality. There was no enmity between family members of deceased Amit as well as family of accused Rakesh, Rajesh and Ram Chander. DW2 deposed that there were large gathering of neighbours gathered in the gali at the time of apprehension of accused persons mentioned above.

13. Dw3 Sh.Krishan stated that before the alleged incident, deceased Amit alongwith his friend Malli, Babu Khan, Manoj, Banti, Anil etc.used to come to their gali. They used to drink there and pass obscene remarks upon the females of the gali. He deposed that they stopped residents of the gali not to interfere otherwise they would face dire consequences .Dw3 stated that on the date of incident i.e. 26.12.04 he alongwith his son Rakesh and Ramchander had gone to Saptahik Bazar at Mandawali to sell their goods in the market around 2p.m. and returned from there around 12.30midnight.When they returned , they saw brick-bats and stones lying in the gali and main doors of several residents of the gali were having mark of stones. Dw3 deposed that in the morning he came to know that one Amit had received injuries and he was beaten by his friends. He deposed that on the day of incident Rajesh was not present in the house. He deposed that his sons had not caused any injury to Amit. Dw3 stated that he was 32 I.D.No.02402R0160282005 aware about the name of Amit as his friends used to call him by his name whenever they came in their gali for hooliganism. The house of Suresh was under construction that is why stones were lying in the gali. In the cross examination ,Dw3 deposed that Amit and his friends were committing illegal activities in the gali for about 2/3 months prior to incident and used to visit in the gali in the evening time . Dw3 deposed that nobody of the gali made a call to PCR or made complaint against Amit and his associates as he as well as Amit used to reside in the same block and that is why he had not made any complaint to the police . Babu Khan,Malli,Bachchan used to visit in the gali alongwith Amit. He never made complaint to the family members of Babu Khan, Malli, Bachchan. Dw3 deposed that he was not having any enmity with Amit and his family members and was not aware about Rajender who had deposed falsely against his sons. Dw3 stated that he was not having any enmity with Rajender. He stated that he had informed SHO that his sons had been falsely implicated in the present case and they had not done any incident. SHO had threatened him to run away otherwise he would implicate him in the present case. Dw3 denied that his sons had beaten Amit .Dw 4HC Rishi Pal stated that on 30.11.05 Rajender was booked u/s 93/97 D.P.Act as he was making noise as well as abusing outside court no.1. DD No.17 of the roznamcha was in his handwriting. In the cross examination Dw4 denied that there 33 I.D.No.02402R0160282005 was cutting at Roznamcha at serial no.17. Dw4 could not say at what time and to whom accused was abusing on that day. Dw4 deposed that he had asked several public persons outside court no.1 to become witness but nobody agreed . Dw4 denied that he had made a false kalandra against Rajender Kumar at the instance of accused persons as he was material witness to the case .Dw4 stated that he had produced the accused before the chowki incharge at about 1p.m. He denied that the entry no.17 was antedated and ante time. Dw5 Braham Singh had brought the original kalandra register which he maintained at Police station Anand Vihar of dated 30.11.2005 and at serial no.213/396 of the said register, there was entry of DD No.17KKD on that day. He deposed that the said DD was regarding the arrest of Rajender Kumar s/o Meer Chand r/o 15/366, Trilokpuri,Delhi. The arrest was made by HC Rishi Pal of police post Karkardooma. The copy of said register was Ex.Dw3/1. He also brought the roznamcha register dated 30.11.05 and in the said register there was an entry at serial no.17 made by HC Rishi Pal No.417, East and the said entry is regarding kalandra u/s 93/97 D.P.Act against Rajender Kumar s/o Meer Chand. The said register shows the arrival of HC Rishi Pal after making the kalandara as well as arrest of Rajender s/o Meer Chand. Photocopy of said register was Ex.Dw3/2.In the cross examination , HC Braham Singh admitted that the record produced by him was not in his handwriting and 34 I.D.No.02402R0160282005 he was not posted at that relevant time at police post Karkardooma. He admitted that there was cutting at point X of Ex.Dw3/2.

Submissions

14. Sh. Taufiq Ahmed, Ld. Additional PP for the state submitted that on 26.12.2004 when PW-1 Rajender alongwith Amit had gone for roaming at about 7.30 or 8 pm to the market, accused Ram Chander, Rakesh and Rajesh caught hold of Rajender and Amit (deceased). They started giving fist blows to Amit. Ram Chander and Rakesh caught hold of accused Amit and accused Rajesh gave a stone blow to Amit. Accused Rajesh exhorted the remaining accused persons namely Ram Chander and Rakesh to kill Amit . At the same time accused Rajesh gave a stone blow to Amit. In the meantime, Sandeep,brother of deceased and Manoj also came to the spot . They took the injured Amit in a red colour Maruti Van of Vipin to LBS hospital at about 9.30 pm. PW-1 Rajender also arrived in the hospital. The deceased Amit succumbed to injuries in the hospital. SHO Rajeev Midha came in the hospital and recorded the statement of Sandeep Kumar on 28.12.2004. On the basis of which SI Omkar Singh recorded the rukka and the case was registered. Ld. Additional PP has argued that the incident had taken place on 26.12.2004 and a DD No. 4-A to this effect was lodged to the Police Station at about 00.20 hours on 27.12.2004 . DD no. 24-A 35 I.D.No.02402R0160282005 was kept pending. Manoj had taken the injured to the hospital and MLC also bears his name as the person who brought the injured to the hospital. He was examined as PW-12 who stated that on 26.12.2004 he was returning after eating chicken from 26 Block via 24 Block, Gali No. 24. He saw gathering of people at gali. He saw his friend Amit lying on the road having head injuries. He removed Amit to LBS hospital with the help of Rajender and Sandeep and got him admitted there. The fact of removing the injured Amit has also been stated by PW-1 Rajender and Sandeep in their statements. In the cross examination ,PW-12 admitted that Rajender and Sandeep were standing at a distance of 10/15 yards from the place of incident. Sandeep brought Vipin who was owner of Maruti van No. 2347 and some blood fell on the floor of maruti van as well as their clothes were smeared with blood. He submitted that the occurrence of this case has taken place on 26.11.2004 and the case was registered on 28.12.2004 and till then the DD was kept pending till the gaining of consciousness of the deceased to avoid wrongful involvement or false implication of any accused . It is submitted that police official might have thought that on regaining of consciousness of the injured the name of assailant would be known by the police official but on the death of Amit on 28.11.2004, finding no option, the police recorded the statement of Sandeep and Rajender who were present at the spot. PW2 stated that he 36 I.D.No.02402R0160282005 alongwith his brother Amit had gone to market with Rajender on 26.11.2004. It was Sunday. PW2 has proved that accused Rajesh who was armed with a stone silli and exhorted co-accused by saying that ''Iska kaam tamam kar do''. Maan Singh gave danda blow to Amit. Rajesh gave silly blow on the head of Amit. Ld.Additonal PP submitted that all the witnesses i.e. PW1 Rajender and PW2 Sandeep have correctly identified accused persons and have specified the role of each accused person. Thus,the presence of Sandeep and Rajender is very well established by the prosecution. Ld. Additional PP argued that as per the deposition of these witnesses it is proved that PW Rajender met the police in the hospital on 26.12.2004 but his statement was not recorded on that day though he had talked to the police at LBS hospital on 26.12.2004. PW1 Rajender was very much present at the spot and had given the true fact to the police on that very day. PW2 Sandeep corroborated the version of PW1 Rajender by saying that police met him in LBS hospital and PW2 had narrated the incident to the police. He deposed that he had told the names of accused persons to police on 26.12.2004 at LBS hospital. PW2 Sandeep deposed that police had come to record the statement of his brother on 26.12.2004 at LBS hospital but his brother was unconscious and therefore his statement could not be recorded. Ld.Additional PP submits that it shows that Sandeep was very much present in the hospital and 37 I.D.No.02402R0160282005 gave the true version of the incident to the police. He proved that he along with Manoj had informed the doctor as to how the victim received the injuries which shows that Sandeep is a natural eyewitness. Ld. Additional PP contended that the accused persons namely Ram Chander, Rakesh, Rajesh and Maan Singh were apprehended on 28.12.2004 and made their disclosure statements separately which corroborates each other and pursuant to disclosure statement made by Rajesh Kumar two silly (stones) were got recovered by him stated to be the same which were used in the assault and were taken into possession on 28.12.2004. Ld.Additional PP relied upon Ashok Kumar Choudhary & Ors.vs State of Bihar,2009II AD(cr.)(SC)248 and State of HP vs Gian Chand (2001)6 SCC 71. It is submitted that delay in lodging of FIR is not fatal for the case of prosecution.

15. On the other hand, Sh.A.K.Choudhary ld.counsel for accused Maan Singh submitted that the prosecution story is totally unbelievable .It is quiet strange that the alleged incident occurred on 26.12.04 but till 28.12.04 no report was recorded in the police station .Sh.Choudhary submitted that recording of FIR is totally manipulated , belated and concocted one, because there is unexplained delay of more than 36 hours . There are contradictions in the testimony of PW19 SI Mange Ram, PW1 Rajender ,PW2 Sandeep which makes the witnesses uncreditworthy . PW1 Rajender categorically stated that Maan 38 I.D.No.02402R0160282005 Singh was not present and had not given any beating to the deceased which clearly is indicative of fact that the accused Maan Singh was not present at the spot . PW1 claimed that the other witness namely PW2 Sandeep and PW12 Manoj Kumar reached at the spot when the accused persons fled away ,meaning thereby the claim of PW2 Sandeep and PW12 to be the eye witness of the incident is totally against the claim of the PW1 Rajender . The testimony of PW1 and PW2 are contradictory on every material point which shows that the witnesses were introduced later on by the police . Even as regards the alleged recovery, the material witnesses examined on this aspect PW9 HC Pratap Singh and PW15 HC Somveer have materially contradicted each other on the point of arrest, preparation of memos , sealing of pulandas and recording of statement of witnesses . On one hand, both these witnesses have claimed that there statement u/s 161 Cr.P.C. was recorded by the IO at the spot but on the other hand the testimony of these witnesses clearly indicates that the statements of these witnesses were recorded at the police station and were not recorded by the IO. Sh.Choudhary ld.defence counsel submits that Dr.Ajay Kumar who conducted the postmortem of the deceased has not specified about the use of alleged weapons . Dr.Ajay has stated that the overall length of the alleged danda 77.3cm but on the other hand the police in their memo of recover danda and pointing out memo have given the over all length as 39 I.D.No.02402R0160282005 77cm which means that the alleged weapon of offence was planted on the accused because the police had not prepared any sketch of this alleged weapon of offence.

16. Sh.Chaudhary, ld. defence counsel relied upon Thulia Kali Vs. State of Tamil Nadu,AIR 1973 SC 501 in support of his submission about delay in lodging the FIR. It is submitted that their Lordship of the Hon'ble Supreme Court held that first information report is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. It is submitted that there is no complaint or report lodged by any public person or any relative of the deceased on 26.12.04 till 40 I.D.No.02402R0160282005 28.12.04 when the actual FIR was lodged. He referred Rai singh Vs. State 1996 (3) C.C.C. 141 (HC) to show that where the subsequent information was recorded after the earlier information in the daily diary, which leads to the inevitable conclusion that there were interpolation, addition and alteration and doubt regarding authenticity of the case . He submitted that in this case allegedly Rajinder and Sandeep with Manoj had taken the injured to hospital. There is nothing on record to show that clothes of these witnesses had any blood stains. No such clothes had been seized or given by these witnesses to the police. In , Sultan & Anr. Vs,. State of Haryana ( P & H) (D.B.) 1996 (1) CCC 377 (HC) , witnesses had seen a gruesome murder being committed before their own eyes but did not disclose the occurrence to anyone , not only that evening but even till the third day after the occurrence. It was held that their conduct was most un-natural which creates a serious doubt about their credit worthiness It is submitted that name of none of the alleged eye- witnesses finds mention in the MLC. A3 If testimony of eye witnesses suffers from such infirmity and drawbacks, then testimony of such witness should be scrutinised carefully . Sh.Choudhary referred Dinesh Kumar Vs. State 1998 (1) JCC (Delhi) 173. He submitted that recovery of danda is doubtful and it cannot be accepted that the accused Maan Singh would hide the danda after commission of offence in his house instead of hiding 41 I.D.No.02402R0160282005 or destroying it. In Preetam Singh Vs. State , 1998 (1) JCC (Delhi) 94 it was held that if recoveries are not made in the presence of independent witnesses if available such recoveries may not be considered by the court in evidence. In this case ,police had recorded the disclosure statement of accused and thereafter effected recovery on the same date. He referred Kochu Maitheen Kannu Saleem Vs. State of Kerela, 1998 (2) JCC (SC) 158 wherein PW1 who had lodged a FIR was not found present on the scene. The trial court did not believed him to be a trust worthy witness. It was held that such FIR cannot be believed. The recovery of the knife was doubtful and no independent witnesses were present when recovery was made and in these circumstances, it was held that prosecution had not proved the case beyond reasonable doubt and the benefit was given to the accused. Relying upon this case, Sh.Choudhary submitted that accused Maan Singh was apprehended from market but it is not clear who identified him and at whose instance he was arrested. PW9 HC Pratap Singh deposed that witness Rajender was with them but there is nothing on record to show that he was present and if he was present then why he had not put his signature on arrest/disclosure and recovery/jamatalashi memos. PW9 admitted that he had prepared all these memos at the police station and IO put his signature . PW15 HC Somveer had not seen the blood stains on 28.12.04 then how blood was collected from spot on 42 I.D.No.02402R0160282005 28.12.04. PW15 has contradicted PW17 and PW19. Ld.defence counsel relied upon Harbans Lal Vs. State of Punjab 1 (1996) CCR 224 (SC) and submitted that in the present case no statement of so called eye witnesses has been recorded on the same day and it raises doubt about the authenticity of contents of the FIR. It is submitted that as per the testimony of Rajender, PW Sandep and Manoj had come later on when they were called by PW Rajender and there evidence is hearsay. In support Jagarnath Maharana vs State of Bihar ,1(2000) CCR 460(DB) Patna High Court was referred . He submitted that there was no definite opinion of PW4 Dr.Ajay to show whether the injuries which caused the death of Amit were caused by stone,danda or lathi. Professor A.K.Tyagi who had actually conducted the postmortem had not come in the witness box as PW4 admitted that he prepared report at the instance of Professor Tyagi. As per MLC injured was brought by Manoj and he was the important witness and there is no reason why his statement was recorded on 23.3.05 . Sh.Choudhary ld.counsel relied upon Kunju Mohammed @ Khumani & Anr. Vs. State of Kerela 2003 (3) JCC 1549 . He submitted that there is a contradiction regarding the place of occurrence shown in rough site plan Ex.PW9/DA and scaled site plan Ex.PW9/DB and the evidence of so called eye-witnesses apart from being interested is full of improbabilities . He cited State of Punjab Vs., Harbans Singh & Anr.(2003) 11 SCC 203. in 43 I.D.No.02402R0160282005 support of this submission that in this case it was observed that no blood stained clothes were recovered from the possession of these witnesses which throws considerable doubt about the presence of these witnesses. It is submitted that there is material contradiction in the testimony of PW9 , PW15 and PW17 IO and the testimony of PW5, PW7 and PW11 also creates doubt. Ld.defence counsel referred Ram Sewak & Ors. Vs. Stae of M.P. 2004 (2) JCC 1957 to show that contradiction between ocular evidence and the medical evidence makes story of prosecution doubtful. It is further submitted that as per the case of prosecution in the present case danda was recovered in the presence of public witnesses but none of them have joined and seal after seizure of danda had not been handed over to any public person through available. He relied upon Manpret Singh & Anr. Vs. State 2004 (1) JCC 1 to show that recovery was doubtful and the benefit must go to the accused. Kavinder & Ors Vs, State (NCT of Delhi) 2005 (1) JCC 53 was referred in support of his submission that disclosure and recovery of the alleged weapons is doubtful .It is submitted that as per prosecution story PW Sandeep has stated that injuries were caused by stones and danda whereas doctor could not express specifically by which weapon injuries were caused or which weapon caused the death of Amit. He also referred State of U.P. Vs. Chanderpal & Anr. 2009 (1) JCC 206. Lastly , Sh.Choudhary referred State of Tamilnadu Rep. by 44 I.D.No.02402R0160282005 Secretary to Govt. Vs. Subair & Ors.2009 (1) JCC 681, in support of his submission about the conduct of witnesses that they had left Amit in the hospital and did not inform about the occurrence to anybody till they were asked by police on 28.12.04. It is submitted that it was held in this case that the conduct of witnesses was unbelievable and unnatural and there presence at the time of occurrence was doubtful and the testimony of these witnesses could not be accepted. It is submitted that there is no evidence on record to convict the accused Maan Singh .

17. Sh.A.K.Goel ld.defence counsel relied upon Rakesh Khan vs State, 2006(2) RCR CRL.243 Punjab & Haryana High Court about the delay in lodging of FIR. He referred Khushia @ Happy vs State, 2007 (1) RCR CRL.557 Punjab & Haryana High Court . He submitted that recovery of weapon of offence was effected from a place which was accessible to everyone. Therefore no reliance could be placed on this to base conviction. He relied upon Gian Chand vs State, 2007(2) JCC,1292 Delhi High Court and submitted that in this case weapon of offence i.e. kirpan was recovered at the instance of accused but no blood group has been detected on the kirpan by CFSL. Hence, it could not be held that there was any connection of the accused with the circumstances of the crime. Sh.A.K.Goel ld.defence counsel argued that the case of the prosecution is not believable because of several discrepancies and contradictions in the statement of 45 I.D.No.02402R0160282005 prosecution witnesses. He submitted on the lines of Sh.Choudhary, ld.counsel that the alleged occurrence took place on 26.12.08, but the police registered the case on 28.12.04 after the delay of 2 days, for the reasons best known to police. It has also come in the statement of PW1 Rajender PW2 Sandeep, that police met them in the hospital after the alleged occurrence, but these witnesses had also not lodged any complaint with the police about the said incident. The police opted to register the case after the death of Amit on 28.12.04 , which clearly shows the police had introduced Rajender and Sandeep as false eye witnesses in the present case, when actually they knew nothing about the alleged incident. Had they known any thing about the incident , they would have lodged the complaint to the police , which was not done by them. The conduct of these witnesses as well as the conduct of the police in this regard clearly shows that a false case was registered against the accused persons. Dalip Kumar vs The State of Delhi, 2004(2)JCC 709 was relied upon by Sh.A.K.Goel ld.defence counsel in support of his submission that there are contradiction and probabilities in the evidence of various witnesses. Recovery of stone was made from open place and accessible to all and sundry and no blood stained clothes of the so called eye witnesses who had accompany the deceased to the hospital were seized. Witnesses were the residents of the near by locality residing at a mere distance from the place of occurrence 46 I.D.No.02402R0160282005 who reached at spot later on . From the depositions of these witnesses and from the conduct of police and because of the delay in lodging of the FIR ,it is clear that the case is manipulated one and PW1 Rajender and PW2 Sandeep knew nothing about the alleged incident and they have been falsely introduced by the police in the present case, because they are the most interested witnesses. Sh.Goel submitted that the alleged weapon of offence i.e small piece of Silli was never shown to PW1 Rajender or PW2 Sandeep for the purpose of identification as the alleged weapon of offence. The alleged incident took place on 26.12.04 but the alleged weapon of offence i.e small piece of Silli along with other piece of silli were allegedly recovered by the police , near from the house of accused at the instance of accused Rajesh from the gali in front of his house, from the place , which was accessible to all . It is submitted that a false recovery of silli has been shown at the instance of accused Rajesh. Sh.Goel, ld.counsel submitted that any article of offence , which is alleged to have been used in the commission of crime, if recovered from the public place accessible to all carries no value. PW1 could never tell the number of Maruti car in which the deceased was allegedly removed to LBS Hospital. He never informed to the police about the alleged occurrence. He never met SI Mange Ram either at the spot or at the LBS Hospital.From the above facts and circumstances, it is clear that this witness knew nothing about the 47 I.D.No.02402R0160282005 alleged occurrence and he was not present at the spot and police has falsely introduced him as witness in the present case. He submitted that the presence of PW2 Sandeep the brother of the deceased stands falsified at the time of alleged occurrence . Testimony of Rajender shows that Sandeep reached at the alleged place of occurrence later on and Sandeep knew nothing about the alleged occurrence.The MLC of deceased Amit by LBS Hospital does not show that injured was ever removed by Sandeep. Ld.Defence counsel submitted that being the brother of the deceased Sandeep has been falsely introduced as complainant in the present case by the police. In fact he was never present in GTB Hospital.

18. PW6 has testified that he did not notice on whose statement the rukka was prepared by IO, but it was not recorded in his presence which indicates that no statement of Sandeep was recorded in the hospital and no ruqua was prepared there and PW6 Sant Kumar never took rukka to the police station .There are material contradictions and discrepancies in the statement of PW9 HC Pratap Singh, PW15 HC Somveer Singh and PW17 Inst. Rajeev Midha, who are the witnesses of the arrest of the accused persons and of the alleged recovery. PW15 HC Somveer Singh stated that IO recorded the disclosure statement of all the accused persons .But in cross-examination Ins. Rajeev Midha PW17 stated that the handwriting of disclosure statement of all the 48 I.D.No.02402R0160282005 accused were in the hand of HC Pratap Singh. As per PW9 the memo regarding the seizure of the stone was prepared by him at the instance of the IO but as per PW15 HC Somveer Singh the recovery memo of stone was prepared by Insp. Rajeev Midha . Only one seizure memo of the recovered stone was prepared and Ins. Rajeev Midha himself has prepared the memo of stone. The writing work was done by Rajeev Midha by sitting on the stairs of house and Memo was prepared by sitting there. The IO himself prepared the sealed pulanda of the stone. Whereas PW17 stated that the memo Ex.PW9/Q is in the hand of HC Pratap. PW15 H.C. Somveer is silent about the presence of Sandeep on 28.12.04 with the police party . The aforesaid memo of blood stained earth & earth control soil was prepared by the IO himself but PW17 Rajeev Midha stated that the seizure memo of concrete i.e PW- 9/A were in the handwriting of HC Pratap. Had there been any truth in the prosecution story, these material contradictions and discrepancies would not have occurred in the testimonies of these witnesses. PW16 SI Onkar Singh stated that Insp Rajeev Midha recorded statement of Sandeep, prepared rukka and handed over to cont. Sant Lal for registration of the case. Whereas Inst Rajeev Midha in his cross examination stated that he got recorded the statement of Sandeep from SI Omkar Singh. He dictated SI Omkar Singh the statement of Sandeep outside the mortuary while sitting on bench. He also stated that the endorsement was 49 I.D.No.02402R0160282005 in the handwriting of SI Omkar Singh as he was having problem in his finger. From these discrepancies , it appears doubtful that Inst Rajeev Midha visited the hospital or recorded the statement of Sandeep or any recovery was affected and all the documents were prepared in the police station and he signed the memo's in the police station later . As per Ins. Rajeev Midha, PW17 he along with the staff in his govt. vehicle and SI Onkar Singh and cont. SantKumar, went to GTB Hospital. Whereas PW16 SI Onkar Singh stated in his cross examination that they received DD Entry no.11-A around 10:00 a.m. and left P.S. within 5 to 7 minutes. He along with cont. Sant Kumar were on scooter and Inst. Rajeev Midha was on Gypsy. He did not accompany them. DDNO. 11-A, was marked to SI Onkar Singh and other staff, who went to the hospital along with const. Sant Kumar. His presence in the hospital also stand belied from the fact that in cross examination PW17 admitted that the death report EX.PW-17/A-1 was not in his handwriting. Admittedly he did not made any separate DD entry for his departure to the hospital on 28.12.04. PW17 had not shown the position of Sandeep and Rajender in the site plan in EX.PW-9/DA, which shows that Sandeep and Rajender were not the eye witnesses of the alleged occurrence and they have been falsely introduced as the witness of the alleged occurrence later on. PW17 stated that for sealing the stones /sillies cloth was procured from the market, whereas HC 50 I.D.No.02402R0160282005 Pratap Singh stated that the cloth was kept inside the police gypsy. The defence story is that accused did not cause any injury on the person of deceased Amit and Amit sustained injuries due to pelting of stones by his own friends, who were drunk at that time and deceased and his friends quarreled amongst themselves and they pelted stones at the house of accused Rakesh, Rajesh and Ram Chander and other houses of the gali on 26.12.04 at night time. The defence story finds support from the testimony of the prosecution witness PW19 SI Mange Ram .

Conclusions

19. As per the prosecution version PW19 SI Mange Ram had reached at the spot first of all and nobody had met him at the spot. PW19 has deposed that on 26.12.04 he reached at the spot at about 9.30p.m. The first information is DD No.24-A. PW19 who reached first at the spot has deposed that call was regarding throwing of stones and quarrel.PW19 reached at LBS Hospital on the night of 26.12.04 at about 9.45p.m. He enquired Sandeep PW2, brother of deceased about the incident who expressed his ignorance about the quarrel and that is why PW19 did not recorded his statement. Thus,testimony of PW19 makes the presence of PW2 Sandeep at the spot doubtful.Even otherwise the conduct of PW2 Sandeep is un natural in not lodging any FIR on 26.12.04. FIR is recorded on 28.12.04 . PW2 admitted that he had not made any complaint to the PS on 26.12.04 or 27.12.04 .

Admittedly PW2 had not approached the higher police officials if his complaint was not lodged . PW2 admitted that he did not tell the name of assailant to the doctor. Furthermore assuming that PW1 Rajender was present at the spot ,he has deposed that all the accused ran away, he chased them and in the mean time Sandeep and his friend Manoj came there and took Amit in red colour maruti van in LBS hospital which shows that Sandeep had reached at the spot of occurrence later on after accused had run away. PW2 has deposed that police had met him in LBS hospital and he had narrated the incident to them. He had informed about the name of the accused to the police on 26.12.04 in LBS hospital.Admittedly, there is no statement of PW2 dated 26.12.04 and the accused had not been arrested on 26.12.04. PW1 deposed that quarrel took infornt of the house of Maan Singh who told them not to quarrel infront of his house. On his objection the quarrel then took place at some distance near his house. This shows that the quarrel was going on for quite some time initially infront of house of Maan Singh and then at some distance from his house. PW1 stated that in order to deter the abovesaid persons quarrelling Maan Singh had brought a danda and PW1 stated that Maan Singh had not given any beating to the deceased.PW1 was cross examined by the ld.APP. In the cross examination he categorically denied that Maan Singh was beating Amit with lathi. He denied that he had joined hands with Maan Singh or was 52 I.D.No.02402R0160282005 deposing falsely in order to save him.Vipin had taken the injured to the hospital in his red van . He has not been produced by the prosecution. That witness could have stated about the presence of PW Sandeep and Rajender at the spot. There is no explanation as to why no investigation was carried on about the vehicle in which deceased was taken. Testimony of PW2 stands contradicted by PW19 SI Mange Ram who deposed that PW2 had showed ignorance about the quarrel.In his testimony , PW1 deposed that public had collected there. He could not tell the name of those persons who had collected at the spot. Police has not examined any public witnesses regarding the incident.It was an inhabited area and the public had collected there. IO did not make any proper enquiry by recording the statement of neighbours from houses in the vicinity of spot of occurrence. PW17 Rajeev Midha admitted that he had not made any enquiry from nearby house no.24/330,24/329,24/328 or from 24/282/283, 24/284,24/285,24/286,24/287,24/289 and 24/290.There is no explanation why no such local enquiry was made by the IO. PW1Rajender testified that injuries were caused by Rajesh with the stone on the body of Amit whereas PW2 stated that injuries were caused on his head. PW1 stated that he had gone to the hospital. There is nothing on record to show that he was present at the hospital. PW19 SI Mange Ram has stated that he had not met PW1 Rajender at the hospital. PW1 has admitted that he did not 53 I.D.No.02402R0160282005 lodged any report with the police on 26.12.04. Police had met him in the hospital. PW1 stated that he had talked to the police in LBS hospital on 26.12.04 which is contradicted by PW19 SI Mange Ram. If PW1 had gone to hospital on 26.12.04, his conduct that he remained silent after witnessing the incident is unnatural . There is nothing on record to show as to what PW1 had done after witnessing the assault on the deceased. In State of Rajasthan vs Bhanwar Singh 2005(1)JCC 73, their lordships of Apex Court have observed that it is unnatural that PW's who are allegedly witness to incident remained silent after witnessing the assaults and no explanation is given as to what they did after witnessing the assault on the deceased. Additionally the unexplained delay of more than one day in lodging the FIR casts serious doubt on the truthfulness of prosecution version. Thus, the fact that PW1 Rajender did not inform the police regarding the alleged incident makes his presence at the spot doubtful. PW12 Manoj has stated that the clothes of Rajender got blood stains when the injured was being taken to the hospital. Admittedly no blood stained clothes of the Rajender were seized by the police. There is no explanation as to why the clothes were not seized if the witness was present at the hospital. PW1 in the cross examination deposed that he had gone to the market after taking some drinks. The MLC of deceased Ex.PW20/A dated 26.12.04 shows that smell of alcohol was coming from his mouth and 54 I.D.No.02402R0160282005 breath, which makes the defence story probable that Amit and his friends had come after drinking liquor . This version also finds support from the initial DD entry 24-A and DD entry 4A recorded by PW19 SI Mange Ram . Defence story particularly seems probable in the light of the testimony of SI Mangey Ram PW 19 who had gone to the spot i.e. at 24 block, first street, near Cambridge School , Trilok puri, and he found that injured Amit S/o Ram Lotan , R/o 24/58 Trilokpuri aged about 24 years had quarreled after taking liquor and he was admitted at LBS Hospital. When SI Mangey Ram PW19 went to LBS Hospital and found the injured in unconscious condition, having injuries on his person with blunt object . No eyewitness was available at the spot , who could have told him how the deceased sustain injuries. SI Mangey Ram wrote in his report " daryaft par sharab pikar aapas mey jhagara hona paya gaya, ab majroob key hosh aaney par jaisey bhi surat hogi karyavahi amal me layi jaygee". Facts were brought in the knowledge of SHO . All these observations were recorded by SI Mange Ram in DD entry NO. 4-A, DT 27.12.04, EX.PW-8/G. PW4 Dr.Ajay Kumar who prepared post mortem report Ex.PW4/A admitted that he had not specified in his opinion that by which particular weapon injuries were possible on the person of deceased. Admittedly the spot was not guarded or protected since the time of incident till 28.12.04 when the stones/silles were lifted and sealed by the 55 I.D.No.02402R0160282005 PW17 .It was an open place and accessible to everyone. There was no hindrance or any restriction for going to the spot by public persons or anybody else. Hence, lifting of stones two days after the incident and sealing them was meaningless. IO admitted that there were no specific marks of identification on the stones/sillies. The alleged weapon of offence has not been identified by PW1 and PW2. These witnesses have not stated about the weapon with which the alleged injuries were caused to the deceased.

20. On considering the totality of evidence on record and in view of the foregoing reasons , I am satisfied that prosecution has failed to bring home the guilt of accused beyond the shadow of reasonable doubts .Consequently, accused are hereby acquitted from the charges against them . Accused be released from J/c forthwith if not required in any other case. File be consigned to RR.

  Announced in the                          (Vinay Kumar Khanna)
  open court on 28.5.09                 ASJ-4/East/KKD Courts/Delhi
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