Delhi District Court
State vs . (1) Dinesh Sharma on 25 April, 2016
-: 1 :-
IN THE COURT OF SH. RAKESH KUMARIII,
ADDITIONAL SESSIONS JUDGE03, (WEST)
TIS HAZARI COURTS, DELHI
Unique Id. No. 02401R0295642011
SC No. 68/3/14
FIR No. 96/11
U/S 302/307/34 IPC
PS Nihal Vihar
State vs. (1) Dinesh Sharma
(2) Vikash Sharma @ Vicky
JUDGMENT
1. Sl. No. of the case : 68/3/14
2. Date of Committal to Sessions : 11.08.2011
3. Received by this court on transfer : 21.02.2014
4. Name of the complainant : Ms. Isha
5. Date of commission of offence : 23/24.01.2011
6. Name and Parentage of accused : (1) Dinesh Sharma,
S/o Sh. Satya Prakash Sharma,
R/o H. No.792, Shaheed
Bhagat, Singh Colony, Karawal
Nagar, Delhi
(2) Vikas Sharma, S/o Sh. Satya
Prakash Sharma, R/o H. No.792
Shaheed Bhagat, Singh Colony,
Karawal Nagar, Delhi
7. Offence complained of : 302/307/34 IPC
8. Offence charged : 302/307/34 IPC
9. Plea of guilt : Pleaded Not Guilty
10.Final order : Convicted
FIR No. 96/11 State vs. Dinesh Sharma Etc. 1 of 77
-: 2 :-
11. Date on which order reserved : 25.04.2016
12. Date on which order announced : 25.04.2016
BRIEF REASONS FOR DECISION :
CASE OF THE PROSECUTION :
(1) Case of the prosecution as per the charge sheet is that on 02.04.2011, a call vide DD No. 8A was received at PS Nihal Vihar and the same was marked to ASI Dalbir Singh who alongwith Ct. Mahipal reached at H. NO. 8, Yadav Park Extension, Kamruddin Nagar, Najafgarh Road, Delhi where it came to the notice that the patient had already been removed to Satya Bhama Hospital. ASI Dalbir Singh left Ct. Surender at the spot and reached at Satya Bhama Hospital and found Smt. Krishna Devi and Nancy with no cardiac activity. He also found one Isha and Rishabh under treatment and MLCs were collected and statement of Ms. Isha recorded.
(2) Ms. Isha in her statement stated that she is 9 year old and residing at H. No. 8, Yadav Park Extension, Najafgarh Road, Kamruddin Nagar alongwith his father, mother, brother and sister and she is studying in 4th standard at Nathuram Convent School. She stated that yesterday evening, her parents had gone to the house of her "Bua" at Pehwa, Haryana and her grand mother Krishna, her sister Nancy, brother FIR No. 96/11 State vs. Dinesh Sharma Etc. 2 of 77 -: 3 :- Rishabh and son of Bua namely Ajay were present and they were preparing to sleep. She stated that at about 10.30 pm, her brother in law (Jeeja) Dinesh and Vicky came to her house and prior to that day, they used to come at her house and after serving the tea, both of them, I (Isha), her sister Nancy, brother Rishabh, Grand mother, brotherin law (jeeja) Dinesh and Vicky slept in the inside room and Ajay slept in outer room of her house. She stated that she along with Nancy and Rishabh slept on the double bed and her grand mother namely Krishna slept on the cot and Dinesh and Vicky slept on the small bed and the small bulb of the room was lighting. She stated that in the night, she heard the noise of her grand mother as she was screaming and she saw that Dinesh was strangulating the neck of her grand mother with a cloth and Vicky had put a pillow on the mouth of her grand mother and was pressing it. She stated that she was scared and due to fear, she did not open her eyes and after some time, the noise of her grand mother stopped coming. She stated that Dinesh tied the mouth and neck of Nancy with one cloth and he started pressing her mouth with the pillow and her sister Nancy started gasping. She stated that she got up and tried to go out but accused Dinesh caught hold her neck and started pressing her neck. Her sister Nancy again tried to got up but FIR No. 96/11 State vs. Dinesh Sharma Etc. 3 of 77 -: 4 :- Dinesh again caught hold her neck but she (Isha) was fallen down and ran away from that room and she came to the room of Ajay and narrated the entire story to Ajay who closed the door. After some time, Dinesh and Vicky told them to open the door but they did not open and Vicky and Dinesh left the house. She stated that at about 04.00 am, they opened the door and they found that grand mother and Nancy were unconscious and her brother Rishabh was also scared and he was having injuries on his eye and neck and Ajay made a phone call to his uncle Roshan. Roshan reached her house immediately and took Nancy and her brother Rishabh to the hospital and she prayed for necessary action.
(3) The dead bodies of Krishna and Nancy were sent to SGM Hospital, Mortuary under the supervision of Ct. Mahipal and ASI and SHO came back to the spot and found crime team present there. Crime team inspected the spot and case u/s 302/307/34 IPC was got registered. Crime team took the photographs of the spot and exhibits were lifted from the spot and seized and site plan was prepared and on 09.04.2011, accused Dinesh Sharma was arrested by PS Anand Vihar vide DD No. 16A dated 09.04.2011 u/s 41.1 (a) Cr.PC and information about his arrest was given to PS Nihal Vihar. On 10.04.2011, accused FIR No. 96/11 State vs. Dinesh Sharma Etc. 4 of 77 -: 5 :- Dinesh Sharma was arrested in this case and his disclosure statement was recorded. On 15.04.2011, accused Vikas Sharma was also arrested and his disclosure statement was recorded and at his instance, motorcycle was recovered and pointing out memo was prepared. On 23.04.2011, statements of Ms. Isha and Master Rishabh u/s 164 Cr. PC were recorded and on 21.006.2011, blood samples of both the accused persons were taken at DDU Hospital and exhibits were deposited in FSL Rohini, Delhi for expert opinion. During the investigation, it was revealed that accused Dinesh Sharma and Vikas Sharma were doing the business of property and they suffered losses in the business and they had borrowed Rs.3,50,000/ from their relative Satpal and Satpal was demanding his money back and being relative, they had excess to the house of Satpal and they came to know about selling of a plot by Satpal in Sonipat (Haryana) and also aware about the fact that Satpal had kept Rs.5,00,000/ in his house and in the absence of Satpal, both the accused reached at the house of Satpal and murdered Smt. Krishna Devi and Ms. Nancy.
CHARGE: (4) After completion of investigation, charge sheet u/s 302/307/34 IPC was filed in the court and after compliance of Section 207 Cr.P.C., FIR No. 96/11 State vs. Dinesh Sharma Etc. 5 of 77 -: 6 :- case was committed to Sessions. During the course of trial, both the accused were charged for commission of offence, punishable under Section 302/307/34 IPC on 07.09.2011, to which both the accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE: (5) To prove its case, prosecution examined 31 witnesses followed by recording the statements of accused persons under 313 Cr.P.C. vide which accused persons claimed to be innocent but did not opt to lead evidence in their defence.
Ld. APP for the State and Ld. Defence Counsel, have relied upon the following Judgments:
1. Dalbir Singh & ors. Vs. The State of Haryana, 2003 (1) RCR (Crl.) 727
2. Ratansinh Dalsukhbhia Nayak Vs. State of Gujarat (2004) 1 SCC 64
3. Dattu Ram Rao Sakhare & Ors. Vs. State of Maharashtra, (1997)5 SCC 341
4. State of Karnataka Vs. Shantappa Madivalappa Galapuji & Ors. 2009 Cr. L.J. 2442 FIR No. 96/11 State vs. Dinesh Sharma Etc. 6 of 77 -: 7 :-
5. Suryanarayana Vs. State of Karnataka (2001) 9 SCC 129
6. Dharnidhar vs. State of U.P.( 2010) 7 SCC 759
7.Dayal Singh & Ors. Vs. State of Uttaranchal AIR 2012 SC 3046
8. Dhari Vs. State of U.P. 2013 AIR (SC) 311
9. K. Venkateshwarlu Vs. State of A.P. 2012 AIR SC 2955
10. Rajesh Govind Jagesha Vs. State of Maharashtra AIR 2000 SC 160
11. Darwara Singh Vs. State of Punjab 2012 (79) ACC (SC)
12. Promode Dey. vs. State of West Bengal, AIR 2012 Supreme Court 1598
13. Alagupandi Alias Alagupandian Vs. State of Tamil Nadu Air 2012 Supreme Court 2405 (6) I have heard the arguments of Ld. Addl. P.P. for the state and Sh.
Gurmeet Singh Hans for both the accused and perused the record carefully.
(7) At the onset, it would be appropriate to have a glance at the gist of the deposition of the witnesses examined by prosecution. (8) PW 1 HC Ishwar Singh recorded the FIR No. 96/11 u/s 302/307/34 IPC on 02.04.2011.
FIR No. 96/11 State vs. Dinesh Sharma Etc. 7 of 77 -: 8 :- (9) PW 2 Rishabh is an eye witness of the case.
(10)PW 3 Satpal is the son of deceased Krishna Sharma and father of deceased Nancy, eyewitnesses Rishabh & Isha.
(11) PW 4 SI Ram Kishore on 21.06.2011, took both the accused persons to DDU Hospital for medical examination.
(12) PW 5 SI Kuldeep Singh was the Incharge of Crime team on 02.04.2011.
(13) PW 6 Dr. Gopal Sharma examined Smt. Krishna Devi and Nancy and declared them brought dead.
(14) PW 7 Ct. Rajesh supplied the copies of FIR to Ld. MM, Joint CP, DCP West, Addl. DCP West, Addl. DCP West - I, DCP WestII and ACP Nangloi.
(15) PW 8 SI Mahesh Kumar prepared the scaled site plan on 09.06.2011. (16) PW 9 SI Rajbir Singh received the information regarding the death of two ladies during the intervening night of 1/2.04.2011 and he communicated this information to duty officer of PS Nihal Vihar. (17) PW 10 Isha Sharma is also an eye witness.
(18) PW 11 Dr. Shalini Girdhar conducted the postmortem on the body of Nancy on 02.04.2011.
(19)PW 12 Dr. Manoj Dhingra alongwith Dr. Deepak Sharma conducted FIR No. 96/11 State vs. Dinesh Sharma Etc. 8 of 77 -: 9 :- postmortem on the dead body of Smt. Krishna Devi on 02.04.2011. (20)PW 13 Ct. Sukhram Pal took photographs of the place of incident vide Ex.PW 13/A1 to Ex PW 13/A12.
(21) PW 14 Roshan Lal is the brother in law of Satpal who after receiving information on 02.04.2011, at about 04.00 am, took Nancy and Krishna Devi to Satya Bhama Hospital.
(22)PW 15 Ajay is also the eye witness of the case. (23) PW 16 Dr. Rishi proved the MLCs of accused Dinesh Sharma and Vikas Sharma.
(24) PW 17 Ct. Surender Kumar on 02.04.2011, reached at the spot and he took the rukka to the PS and came back to the spot with the copy of FIR.
(25)PW 18 Ct. Mahipal Singh went to the hospital alongwith ASI Dalbir and dead bodies were shifted to SGM Hospital, Mangolpuri under his supervision.
(26) PW 19 ASI Dalbir Singh recorded the statement of Isha Ex. PW 10/A and inspected the spot and prepared rukka Ex. PW 19/B. (27) PW 20 Mukesh identified the dead bodies of Nancy and Smt. Krishna and received the dead bodies vide receipts Ex. PW 3/B and Ex. Pw 3/C. FIR No. 96/11 State vs. Dinesh Sharma Etc. 9 of 77 -: 10 :- (28) PW 21 Ct. Yudhvir deposited the sample seals in FSL Rohini. (29) PW 22 HC Naresh handed over the exhibits to Ct. Krishan to deposit in the FSL on 24.06.2011.
(30) PW 23 HC Ram Avtar received certain articles on 15.04.2011, 21.06.2011, 25.05.2011 and 15.06.2011.
(31) PW 24 Ct. Kishan Kumar was present when accused Vikas Sharma was apprehended/arrested.
(32) PW 25 HC Umesh Singh was present at the bus stop from where accused Dinesh Sharma was arrested.
(33) PW 26 Sh. M.P. Singh, Ld. MM Karkardooma Courts recorded the statements of child witnesses Ms. Isha and Mr. Rishabh u/s 164 Cr. PC.
(34) PW 27 ASI Vijender was present in the court on 10.04.2011 alongwith Insp. Jai Singh when Dinesh Sharma was interrogated and arrested. Accused Vikas Sharma was also apprehended in his presence.
(35) PW 28 SI Bhim Singh apprehended accused Dinesh Sharma with the help of other raiding team members.
(36) PW 29 Insp. Jai Singh is the IO of the case.
(37) PW 30 Dr. Shubhra Kumar Paul gave the FSL report Ex. PW 30/A FIR No. 96/11 State vs. Dinesh Sharma Etc. 10 of 77 -: 11 :- and Ex. PW 30/B. (38) PW 31 Ms. Seema Nain examined and prepared the biological and serological report Ex. PW 31/A and Ex. PW 31/B. (39) The prosecution examined 31 witnesses and proved the following documents:
(1) Ex.PW 1/A : FIR (2) Ex. PW 1/B: Endorsement on rukka (3) Ex. PW 2/A Statement of Rishabh u/s 164 Cr.PC (4) Ex. PW3/A Identification statements of dead bodies (5) Ex. PW3/B & PW3/C Handing over Memos of dead bodies (6) Ex. PW 4/A Seizure memo (7) Ex. PW 5/A Crime Team Report (8) Ex.PW 6/A MLC of Nancy (9) Ex. PW 6/B MLC of Krishna (10) Ex. PW 6/C MLC of Rishabh (11) Ex.P W 6/D MLC of Isha (12) Ex.PW 8/A Site plan (13) Ex. PW 9/A Information to Duty Officer (14) Ex. PW 10/A Statement of Isha (15) Ex.PW 10/B Statement of Isha u/s 164 Cr. PC FIR No. 96/11 State vs. Dinesh Sharma Etc. 11 of 77 -: 12 :- (16) Ex. P2 Colored pillow and printed pillow (17) Ex. P3 Two pillows and printed cloth (18) Ex. P4 Scarf/cloth (19) Ex.PW 11/A Postmortem report of Nancy (20) Ex. PW 12/A Postmortem report of Krishna Devi (21) Ex. PW 13/A1 to Negatives of photographs Ex.PW 13/A12 (22) Ex.PW 13/B1 to Photographs Ex.PW 13/B 12 (23) Ex. PW 16/A MLC of Dinesh Sharma (24) Ex. PW 16/B MLC of Vikas Sharma (25) Ex.PW 18/A Seizure memo (26) Ex. PW 18/B Seizure memo (27) Ex.PW 19/A DD No. 8A (28) Ex.PW 19/B Rukka (29) Ex. PW 19/C Seizure memo of patila, chalni and katori (30) Ex.PW 19/D Seizure memo of pillow and cloth (31) Ex.P W 19/E Seizure memo of pillow and bedsheet (32) Ex. PW 19/F Seizure memo of glasses and gloves (33) Ex.PW 19/G Brief facts FIR No. 96/11 State vs. Dinesh Sharma Etc. 12 of 77 -: 13 :- (34) Ex. PW 19/H Request for conducting the postmortem of Nancy (35) Ex. PW 19/J and 19/K Form 25.35 (36) Ex. PW 19/L Request for conducting postmortem of Krishna
(37) Ex.PW 20/A and 20/B Statement of Mukesh regarding identifications of dead bodies (38) Ex. PW 22/A Photocopy of RC register (39) Ex. PW 22/B Photocopy of receipt (40) Ex. PW 23/A Entry in register no. 19 regarding sample seals (41) Ex. PW 23/B Entry in register no. 19 regarding motorcycle (42) Ex. PW 23/C Entry in register no. 19 regarding sealed pullandas (43) Ex. PW 23/D RC regarding exhibits (44) Ex.PW 23/E Receipt regarding deposit of articles at FSL (45) Ex. PW 23/F RC regarding exhibits of sample seal (46) Ex. PW 23/G Receipt of deposit of articles at FSL (47) Ex. PW 23/H RC of exhibits/sample seals (48) Ex. PW 23/J Receipt FIR No. 96/11 State vs. Dinesh Sharma Etc. 13 of 77 -: 14 :- (49) Ex. PW 24/A Arrest memo of Vikas Sharma (50) Ex. PW 24/B Personal search memo of Vikas Sharma (51) Ex. PW 24/C Disclosure statement of Vikas Sharma (52) Ex. PW 25/A Arrest memo of accused Dinesh Sharma (53) Ex. PW 25/B Personal search memo of accused Dinesh Sharma (54) Ex. PW 26/C Application of IO regarding supply of statements u/s 164 Cr.PC (55) Ex. PW 27/A Disclosure statement of Dinesh Sharma (56) Ex.PW 27/C Pointing out memo (57) Ex. PW 27/D Seizure memo of motorcycle (58) Ex. PW 27/E Pointing out memo (59) Ex. P5 Motorcycle (60) Ex. P6 Helmets and keys (61) Ex. PW 28/A Arrival entry (62) Ex. PW 29/A Site plan (63) Ex. PW 29/A1 DD NO. 30A (64) Ex.PW 29/B1 Kallandra u/s 41.1 Cr.PC (65) Ex. PW 30/A FSL Reports (66) Ex. PW 30/B FSL Report FIR No. 96/11 State vs. Dinesh Sharma Etc. 14 of 77 -: 15 :- (67) Ex.PW 31/A and Biological and serological report Ex. PW 31/B (40) Ex.PW 31/C and Biological and Serological report Ex. PW 31/D FINDINGS :
(40)The case of the prosecution is that in the intervening night of 1/2.04.2011, Smt. Krishna and Ms. Nancy were murdered by accused Dinesh Sharma and Vikas Sharma and they also caused injuries to Ms. Isha and Master Rishabh and they were charged for the offence punishable u/s 302/307/34 IPC and to prove its case, the prosecution examined the following witnesses.
(41) PW 1 HC Ishwar Singh, on 02.04.2011, was posted at PS Nihal Vihar as duty officer and on receiving a rukka from Ct. Surender, he recorded FIR No. 96/11 u/s 302/307/34 IPC Ex. PW 1/A. He also made endorsement on the rukka Ex. PW 1/B. (42)PW 2 Master Rishabh is the eye witness of the case and at the time of deposition, he was in 6th Standard and as per the observation of Ld. ASJ, he was capable of understanding the questions and giving rational answers and the witness was examined without oath as he was under 12 years of age.
FIR No. 96/11 State vs. Dinesh Sharma Etc. 15 of 77 -: 16 :- (43)Master Rishabh deposed that at the time of incident, he was living at Nangloi along with his younger sister Isha, elder sister Nancy, his grand mother Krishna Sharma and son of his bua namely Ajay. He stated that on 01.04.2011, his parents had gone to Pehwa at the house of his "bua" namely Usha and he along with his cousin Ajay, his two sisters Nancy and Isha and his grand mother was present in the house. They took the meal in the night and thereafter, they had ice cream and slept. He stated that his father was running a shop in front of the portion of the house and his cousin Ajay slept in that shop and they all family members slept in one room. His both the sisters alongwith him slept on the double bed and his grand mother slept on the cot near the double bed. He deposed that when he was sleeping, he heard the screaming of his sister Nancy and on hearing her screams, he and Isha shouted "BibbiBibbi". He stated that they used to call their grand mother as Bibbi. He deposed that he and Isha opened their eyes and saw that a shawl was wrapped around the neck of their grand mother and both the accused persons namely Dinesh and Vicky were pressing the face and neck of his elder sister Nancy. (Witness correctly identified both the accused persons). He stated that when he and Isha shouted, accused Vicky caught hold him and they put something on FIR No. 96/11 State vs. Dinesh Sharma Etc. 16 of 77 -: 17 :- his mouth also and they also pressed his neck. He deposed that accused Dinesh present in the court today, had caught hold of Nancy and on seeing them, his sister Isha tried to run away from there and accused Dinesh also caught hold Isha. Isha kicked accused Dinesh and ran away to the shop where Ajay was sleeping. He stated that after some time, Ajay came to the room in which both the accused persons had caught hold him and Nancy and he switched on the light. Both the accused persons shouted on Ajay to put off the light and Ajay put off the light due to fear and he again switched on the light the next moment. He deposed that Ajay asked from both the accused persons that "yeh bacche paer kyun maar rahe hain". On this, both the accused persons replied that "bacche sapne mein dar gaye hain". On hearing this reply, Ajay again switched off the light and went back to the shop. He stated that he heard Nancy saying "mujhe saans lene do"
and after some time, he stopped hearing the voice of the Nancy. He further deposed that accused Vicky was sitting on (Rishab's) his body and was pressing his neck and after some time, Vicky put his face beneath the metress of the bed and he could see what the accused persons were doing. He saw that accused persons opened the box of the bed by putting him and Nancy on the side of the bed and they did FIR No. 96/11 State vs. Dinesh Sharma Etc. 17 of 77 -: 18 :- something in the box of the bed and again closed the box of the bed and went to the shop. After some time, they returned and he saw that accused persons were cleaning the body of Nancy and his body also with wet cloth. He deposed that after some time, he heard somebody going upstairs and Vicky followed him and after some time, Vicky returned and he told Dinesh that Ajay had run away and that they would be in trouble. He stated that after some time, he heard the voice of motorcycle and saw that both the accused persons had left. He went upstairs and saw that Ajay was shouting "saare bacchon ko maar diya pata nahin kya kar diya". He stated that he told Ajay that accused persons had left and told him to accompany him to downstairs. Isha had bolted the shop from inside and they told Isha to open the shop and told her that accused persons had left and then Isha opened the shop and they started searching the mobile of Ajay and Ajay dialed mobile phone to his father but it was switched off. He deposed that, he searched the telephone number of his uncle (fufa) namely Roshan and Roshan reached there after 5 minutes and Roshan tried to wake up his grand mother and Nancy but they did not wake up. Roshan had come to their house on motorcycle and he took Nancy in his lap and sat on the back of the motorcycle and Roshan drove the motorcycle and they FIR No. 96/11 State vs. Dinesh Sharma Etc. 18 of 77 -: 19 :- took Nancy to nearby hospital. He stated that after leaving Nancy in the hospital, his grand mother was taken to the hospital in the auto by Roshan and Ajay with the help of the driver of the auto and after some time, they came to know that Nancy and his grand mother had died. He deposed that after some time, police officials reached there and they made inquiries from them and his statement was recorded by the Magistrate in the court.
This witness was cross examined by Ld. APP and in the cross examination, PW 2 Rishabh admitted that both the accused persons namely Dinesh and Vicky used to visit their house several times prior to the incident. He also admitted that accused persons had visited their house at 10.30 pm. PW 2 also admitted in the cross examination that when he heard the noise in the night, he woke up and saw that Dinesh was putting the cloth around the neck of his grand mother after tying the same around her neck. He stated that he had seen accused Vicky pressing her mouth with pillow. He stated that when the noise of his grand mother stopped, he saw that accused persons pulled the cloth around the neck of Nancy after tying the same around her neck and thereafter, accused Vicky pressed the mouth of Nancy with pillow. He stated that accused persons had put something in the tea probably FIR No. 96/11 State vs. Dinesh Sharma Etc. 19 of 77 -: 20 :- poison and they gave the tea to his grand mother which she did not want to have but they forced his grand mother to have tea but she threw away glass on the ground with force of her hands. He admitted that his deceased sister Nancy had seen accused persons picking up a shawl and tying the same around the neck of his grand mother and covering her with the blanket, then she told both the accused persons that she had seen both the accused persons and she would tell about this to their father and on hearing this, both the accused persons pounced upon Nancy and had put cloth on her mouth. He stated that Vicky caught hold his (Rishab's mouth) mouth with both his hands and sat on his stomach. This witness admitted in the cross examination by ld. APP that he had told the Magistrate in his statement that at night, accused Dinesh and Vicky entered the house and his grand mother opened the door and his grand mother woke up Ajay and told him to prepare two cups of tea for accused persons and it is further admitted by this witness that accused persons had put something in the tea probably poison and they gave the tea to his grand mother which she did not want to have.
(44)PW3 Satpal is the son of deceased Smt. Krishna Sharma and father of deceased Nancy who deposed that accused Dinesh Sharma is FIR No. 96/11 State vs. Dinesh Sharma Etc. 20 of 77 -: 21 :- Nandoi of his niece (Bhanji) and accused Vikas is brother of accused Dinesh Sharma and at the time of incident, he along with his family was residing at H. No. 8, Yadav Park Extension, Kamruddin Nagar, Najafgarh Road, Delhi and both the accused persons used to visit their house frequently. He deposed that six months prior to the date of incident, both the accused persons came to his house and insisted him that he should take a plot in partnership with them but he refused. He stated that thereafter, accused persons obtained a loan from him in two installments amounting to Rs. 2 Lacs and Rs. 1.5 Lacs respectively for investing in a plot and both the accused persons had given him in writing about the loan and they had promised that they would return the loan amount after two months but they did not return. He stated that on Wednesday, prior to 01.04.2011, his mother Krishna Devi had sold her house situated in Badi Gaon, Gannaur District, Sonipat for Rs. 5 Lacs and that money in cash was kept by his mother in the box of diwan (bed) and on 01.04.2011, he along with his wife had gone to Pehwa to attend the Mela. He deposed that in the morning of 02.04.2011, his brother in law Roshan, who was living in his neighbourhood, telephoned him to reach home urgently and also told that his mother and his daughter Nancy were lying unconscious and on FIR No. 96/11 State vs. Dinesh Sharma Etc. 21 of 77 -: 22 :- his asking, Roshan told him that children had told him that accused persons had visited their house on the previous night and they had killed them. He stated that they reached at SGM Hospital and identified the dead bodies of his mother and his daughter Nancy and his statement was recorded by the police vide Ex.PW 3/A. After the postmortem both the dead bodies were handed over to him vide memos Ex. PW 3/B and Ex. PW 3/C respectively. He stated that the articles in his house were lying scattered, a pair of gloves and some glasses were also lying near the bed and the bed was also found in broken condition and they found Rs. 5 Lacs cash of his mother in a locked box beneath the cloths.
(45) PW 4 SI Ram Kishore on 21.06.2011 was posted as SI at PS Nihal Vihar and on that day, he along with Insp. Jai Singh and other staff went to DDU Hospital and both Dinesh Sharma and Vikas Sharma were medically examined there and Dr. Udai Kumar, CMO, DDU Hospital handed over two sealed parcels along with two sample seals containing blood sample of both the accused persons and he handed over the same to Insp. Jai Singh who seized the same vide seizure memo Ex.PW 4/A. (46)PW5 SI Kuldeep Singh on 02.04.2011 was posted as Incharge FIR No. 96/11 State vs. Dinesh Sharma Etc. 22 of 77 -: 23 :- Crime Team, West District, Delhi and on receipt of message from control room, he along with his staff reached at H. No. 8, Yadav Park Extension, Kamruddin Nagar, nangloi, Delhi where he met police staff of PS Nihal Vihar. He stated that photographer took photographs and they inspected the site and lifted the chance prints and he prepared the report in this regard Ex.PW 5/A. (47)PW6 Dr. Gopal Sharma on 02.04.2011 was posted at Satya Bhama Hospital as casualty Medical Officer and on that day at about 05.45 am, two patients namely Nancy, age 15 years and Smt. Krishna Devi, age 60 years were brought by Roshan and on examination of Nancy, he declared her brought dead. He stated that on her local examination, he found an abrasion mark on left side of upper eye lid and an abrasion mark on round neck. He prepared the detailed report on MLC Ex.PW 6/A. He further deposed that on examination of Krishna, he declared her brought dead and on her local examination, he found an abrasion mark on left side of neck and he prepared detailed report on MLC vide Ex. PW 6/B. He deposed that on the same day at about 08.00 am, two more patients namely Rishab and Isha aged about 11 years and 9 years, children of Satpal were also brought in the hospital. On examination, it was told that Rishabh was unconscious and on examination, he was FIR No. 96/11 State vs. Dinesh Sharma Etc. 23 of 77 -: 24 :- complaining of pain in neck, headache and nausea. He stated that on examination of Rishabh, he found a bruise and abrasion mark on the right side lower eye lid and left lower nostril and he prepared report Ex.PW 6/C. He stated that he also examined Isha and she was complaining pain in neck and headache and on her examination, he found a bruise mark over right side of neck and he prepared the detailed report on his MLC Ex. PW 6/D. He stated that the hospital authorities informed about these patients at PS Nihal Vihar and all the four original copies of MLCs, were handed over to police officials of PS Nihal Vihar and the dead bodies were also handed over to police officials.
(48) PW7 Ct. Rajesh on 02.04.2011, was posted as Constable at PS Nihal Vihar and he supplied the copies of FIR to Ld. MM, Joint CP, DCP West, Addl. DCP West, Addl. DCP West - I, DCP WestII and ACP Nangloi (49) PW 8 SI Mahesh Kumar on 09.06.2011, was posted as draftsman in crime branch, PHQ, Delhi and on that day, at the request of Insp. Jai Singh, SHO PS Nihal Vihar, he visited the place of incident i.e. house of Satpal, H. NO. 8, Yadav Park Extension, Kamruddin Nagar, Delhi with Insp. Jai Singh where he took rough notes and measurements of FIR No. 96/11 State vs. Dinesh Sharma Etc. 24 of 77 -: 25 :- the spot and on the basis of the same, he prepared the scaled site plan Ex. PW 8/A. (50) PW 9 SI Rajbir Singh received the information regarding the death of two ladies during the intervening night of 1/2.04.2011 and he communicated this information to duty officer of PS Nihal Vihar and computerized copy of communication is Ex. PW 9/A. (51) PW 10 Isha Sharma is also the eye witness who at the time of making the statement in the court was in 5th Standard and as per the observation of Sh. Rajneesh Kumar Gupta, Ld. ASJ, witness was able to give the rational answers to the questions put to her and witness was examined without oath.
(52)She deposed that she had a sister namely Nancy and has a brother namely Rishabh and they were living with their parents, grand mother and his cousin namely Ajay. She deposed that she knows accused Dinesh and accused Vikas as accused Dinesh is her Jeeja and accused Vikas is brother of accused Dinesh. (Witness correctly identified both the accused present in the court). She stated that on 01.04.2011, her parents had gone to the house of her "Bua" in Pehwa, Haryana and she along with her brother, sister, cousin Ajay and her grand mother were present in the house. She stated that on the night of 01.04.2011, they FIR No. 96/11 State vs. Dinesh Sharma Etc. 25 of 77 -: 26 :- had dinner and had Ice Cream and they were preparing to go to bed and after some time, they slept. She stated that during sleep, she heard some noise of falling of steel glass and she saw that accused Dinesh was pressing the neck of her grand mother with a shawl and accused Vikas was pressing her mouth with pillow and her sister Nancy also saw this and she told both the accused persons that she would make a complaint about them to her father. She deposed that Nancy was wearing a scarf at that time and accused Dinesh tied her neck with that scarf and also pressed her mouth with pillow. Nancy retaliated by moving her legs as a result of which, her brother Rishabh also woke up. She further stated that accused Vicky saw this and he pressed the neck of Rishabh with his hands and on seeing this, she tried to slip away but accused Dinesh pulled her towards himself with her neck but she somehow pushed him aside and ran towards the room of Ajay. Isha further deposed that she also saw that Dinesh was pressing the neck of her sister Nancy and accused Vikas had sat on the body of her brother Rishabh. She deposed that she also saw that Nancy was requesting accused Dinesh to leave her but accused Dinesh was not leaving her and after reaching the room of Ajay, she woke up Ajay and told the incident to him. She further deposed that Ajay left his room and went FIR No. 96/11 State vs. Dinesh Sharma Etc. 26 of 77 -: 27 :- to their room and she remained in the room of Ajay and she could see her room from the door of Iron net. She stated that she saw that when Ajay switched on the light of their room, both the accused persons shouted on him to switched off the light and Ajay after seeing both the accused persons, asked as to what they were doing. On this, both the accused persons told Ajay that her brother Rishabh and her sister Nancy were having bad dreams, so they were treating them. She deposed that he switched off the light and came to her and told her that accused persons were the relatives and Ajay told her that he is going upstairs for toilet. She stated that she also saw that accused Dinesh and Vicky followed Ajay upstairs and after some time, both the accused persons came downstairs and they did not find Ajay there. She stated that they might have thought that Ajay would tell the incident to other persons, so both the accused persons left their house immediately. She stated that at that time, she was sitting in the room of Ajay by bolting the door from inside and both the accused persons tried to open the door but the door was bolted from inside so they could not open the door. She heard that the accused persons left their house on bike and she came out of the room of Ajay and called Ajay from upstairs. She saw that blood was coming out from the mouth of FIR No. 96/11 State vs. Dinesh Sharma Etc. 27 of 77 -: 28 :- her grand mother and she appeared to be in unconscious state. They also tried to woke up Nancy and Rishabh. Rishabh woke up but Nancy did not respond. She deposed that the eyes of Rishabh were red at that time and he was also having an injury on his neck and Ajay and Rishabh telephoned their "fufa" Roshan from the mobile phone of Nancy and Roshan reached there on his bike. She stated that Roshan took Nancy to hospital on his motorcycle alongwith Rishabh and after some time, her fufa Roshan returned home and informed them that Nancy had died. She stated that thereafter, Roshan took her grand mother Krishna to hospital in a TSR and after some time, Roshan informed them that her grand mother had also died. She further deposed that in the evening her parents returned home and police also reached their house and she had told the whole incident as well as the place of occurrence to the police and her statement was recorded by the police vide Ex. PW 10/A. She stated that police had also lifted some articles from their house.
During the deposition of Isha, pillow, shawl and scarf were produced in the court and witness correctly identified all the clothes and clothes were exhibited as Ex. P2, P3 and P4. This witness was cross examined at length and the relevant portion of her cross examination is as under:
FIR No. 96/11 State vs. Dinesh Sharma Etc. 28 of 77 -: 29 :- (53) " I had told the whole incident whatever happened to the police. Police had made inquiries from me only once in the hospital and only one policeman had made inquiries. I was alone at that time. I cannot say how much time I talked to the police official. That police official was writing my statement simultaneously. I was made to sign only once by the police official. My statement was recorded in the morning of 02.04.2011 by the police. I had told the same entire incident to the Magistrate also. I know the difference between scarf, shawl and cloth. I had told my father that I had narrated the whole incident to police. I was not tutored by my father to give the statement in addition what I had already stated to the police. I was not tutored by my father or by the police to give the statement before the Magistrate".
(54)PW 11 Dr. Shalini Girdhar on 02.04.2011 was posted at SGM Hospital, Mangolpuri and on that day, she conducted the postmortem on the body of Nancy with the alleged history of assault on the intervening night of 1/2.04.2011. She stated that on examination, rigor mortis was present all over the body and postmortem staining was present on legs and at back and she found the following ante mortem injuries and her detailed report is Ex. PW 11/A:
1. Abrasion of size 3.2x0.8 cm on left eye lid near left angle 0.7 cm from left angle and 4.5 cm from tragus of left ear.\;
2.Abrasion of size 1.3 x 1.2 cm present near injury no. 1 and 7 cm from tragus and 0.2 cm from injury no.1.
FIR No. 96/11 State vs. Dinesh Sharma Etc. 29 of 77 -: 30 :-
3.Abrasion of size 0.2 x 0.5 cm present on upper lip.
4.Multiple abrasion of the size ranging from 0.5 cm to 1.00 cm present on interior aspect of neck mentioned on the back of postmortem report prepared by me along with the diagram i.e. 15.5 cm x 6.5 cm, 4.5cm from chin, 4.5 cm from sternum, 8.3 cm from right mastoid process, 5.5 cm from left mastoid process total number of abrasions are 20 to 25 in number and are fresh in nature and red in colour.
5. Abrasion of the size 3.5 cm x 0.5 cm on lower aspect of neck, 0.7 cm from right mastoid process. Thyrohyoid complex was intact.
On internal examination of head, sub scalp hematoma was present on right side temporo parietal region in an area of 3 cm x 2cm. Brain matter was congested with petechial hemorrhages present in the scalp.
On internal examination of neck, extra vessation of blood was present on the right side, sterno hyoid.
Both the lungs were congested and on cut section showed fluid exudates and congestion.
All the internal organs were congested.
Stomach contained semi digested food about 20 ml. Cause of death in this case was cumulative effect of asphyxia FIR No. 96/11 State vs. Dinesh Sharma Etc. 30 of 77 -: 31 :- due to smothering and strangulation (manual) which is sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature. Time since death was about 10 hours. I preserved the viscera and handed over the same along with the sample seal to IO. The details report prepared by me is Ex. PW11/A which is in my handwriting and bearing my signature at point A. Except two questions, this witness was not cross examined on other material points.
(55)PW 12 Dr. Manoj Dhingra on 02.04.2011 was posted at SGM Hospital as Medical Officer, Incharge in department of Forensic Medicine and on that day, he along with Dr. Deepak Sharma conducted postmortem on the dead body of Smt. Krishna Devi with the alleged history of brought dead to Satya Bhama Hospital after strangulation. He stated that they found four external injuries. On internal examination, they found one dissection, effusion of blood present in soft issue and muscles of left side of neck and effusion of blood around left side of thyroid cartilage. He stated that in their opinion, death was due to asphyxia consequent to pressure over face and neck homicidal in nature and detailed postmortem report of Krishna Devi is Ex. PW 12/A which is as under: FIR No. 96/11 State vs. Dinesh Sharma Etc. 31 of 77 -: 32 :- Alleged history according to inquest papers:
Alleged history of brought dead to Satya Bhama Hospital on 2.4.2011.Alleged history of strangulation.
General appearance Clothes: sari multicolour blue white, petticoate white, blouse white, clothes sealed and handed over to investigating officer. Eyes: closed.
Conjunctivae: both congested Face: congested Mouth:closed Tongue: No abnormality present.
Nails: blue.
Discharge from natural orifiees: nil.
Post Mortem changes Cornea: The cornea had hazy appearance Rigor Mortis:present all over body Post Mortem staining: Present over the back of the body and limbs except pressure areas.
Decomposition changes: nil External examination (injuries) FIR No. 96/11 State vs. Dinesh Sharma Etc. 32 of 77 -: 33 :-
1. Face and neck till sternal notch are congested with petechial hemorrhages at multiple places.
2. Contused abrasion 0.5x0.3 cm present on left lower side of nose.
3. Contusion 2x2 cm present in middle and innner sides of both lips
4. Contused abrasion 2x0.5 cm present on left side of neck, just below left angle of mandible.
Internal examination Head Scalp: on reflecting the scalp it is congested.
Skull bones including facial bones and base of skull: no abnormality detected.
Brain: congested.
Neck Soft tissue: on fine dissection effusion of blood present in soft tissue and muscles on left side of neck.
Hyoid bone, Thyroid cartilage, cricoid cartilage: effusion of blood around left side of thyroid cartilage, no fracture present. Laryngeal mucosa and Tracheal mucosa: congested Chest Ribs and Sternum: no abnormality detected.
FIR No. 96/11 State vs. Dinesh Sharma Etc. 33 of 77 -: 34 :- Pleurae and pleural cavities: no fluid present. Lungs: both lungs congested Heart: intact, petechial hemorrhages present over anterior and posterior surface.
Abdomen Liver and gall bladder: congested Spleen: congested.
Kidneys: On cut section both kidneys were normal. Pancreas: No gross abnormality present.
Stomach: contains about 10 ml of brownish fluid, walls are congested. Bowels: The small bowels contained fluid and gases and the large bowels contained gases and fecal matter. The mucosa of the bowels was normal.
Pelvis Urinary bladder: Empty. The walls were normal.
Genital organs: No abnormality present.
Vertebral column and spinal cord: No abnormality present. Opinion:
Death is due to asphyxia consequent pressure over face and neck, homicidal in nature. However, viscera have been kept preserved in FIR No. 96/11 State vs. Dinesh Sharma Etc. 34 of 77 -: 35 :- common salt solution, sealed and handed over to IO for chemical analysis to rule out any common unknown poisoning.
This witness was also not cross examined.
(56)PW 13 Ct. Sukhram Pal on 02.04.2011 was posted as photographer in crime team and on that day, he alongwith Incharge Crime Team SI Kuldeep reached at Satya Bhama Hospital and from their he alongwith Incharge Crime team reached at Shop NO. 8, Yadav Park Extension, Kamruddin Nagar, Delhi and on the directions of IO, he took 12 photographs of the place of incident vide Ex.PW 13/B1 to Ex PW 13/B12 and the negatives Ex. PW 13/A1 to Ex. PW A12.
(57) PW 14 Roshan Lal is the brother in law of Satpal who after receiving the information on 02.04.2011 at about 04.00 am from Ajay that Nani and Nancy have been killed by Dinesh and Vicky, he reached the house of Satpal on his motorcycle and found that his mother in law Krishna Devi and Nancy were lying in unconscious state. He took Nancy to Satya Bhama Hospital with the help of Rishabh on his motorcycle and the doctor in that hospital, declared Nancy dead. He stated that he again came back at the house of Satpal and hired an auto for taking his mother in law Krishna Devi to the hospital and Krishna Devi was taken to Raghuvanshi Hospital first but that hospital refused FIR No. 96/11 State vs. Dinesh Sharma Etc. 35 of 77 -: 36 :- to admit her, therefore, they took her to Satya Bhama hospital where she was declared brought dead. He stated that Rishabh and Isha were also with him at that time and they were also got medically treated in Satya Bhama Hospital. He stated that he telephoned Satpal and informed him about the incident and after the postmortem, the dead bodies of Krishna Devi and Nancy were handed over to Satpal in his presence vide handing over memo Ex. PW 3/CA.
(58)PW 15 Ajay is also one of the eye witness of the case who deposed that at the time of incident at H. No. 8, Yadav Parka, Kamruddin Nagar, Najafgarh Road, Delhi, he was residing with his maternal uncle and aunt. He stated that he was residing with his maternal uncle and Aunt since his childhood after the death of his parents. He stated that his maternal uncle Satpal had three children namely Rishabh, Nancy and Isha and his maternal grand mother namely Krishna Devi was also residing with them. He deposed that he knows accused Dinesh and Vicky present in the court as accused Dinesh is Jeeja of his Jeeja and accused Vicky is brother of accused Dinesh and both the accused persons used to visit the house of his maternal uncle Satpal as his real sister Neelam was married to him and the accused persons are relatives of the in laws of Neelam. He stated that on 01.04.2011, his FIR No. 96/11 State vs. Dinesh Sharma Etc. 36 of 77 -: 37 :- maternal uncle Satpal and aunt had gone to Pehwa in the evening time and on the same day in the night, he alongwith Rishabh, Isha and Nancy and his maternal grand mother Krishna were preparing to go to bed to sleep. He stated that at about 10.30 pm, on that day, accused Dinesh and Vicky came to their house and they told us that they would sleep in their house on that night and all the persons except me i.e. Rishabh, Nancy, Isha, Krishna Devi and both the accused persons slept in one room and he slept in the front room which is also a shop of coffin. He deposed that in the night, Isha came to his room and woke him up and at that time, Isha was looking frightened and she told him that accused Dinesh and Vicky have killed Rishabh, Nancy and her grand mother Krishna and that accused persons were about to kill her also. He stated that he immediately went to the room where other persons were sleeping and switched on the light of the room and saw that shawl was wrapped around the face and neck of Krishna Devi and accused Dinesh was sitting on the body of Nancy and was pressing the neck and face of the Nancy with pillow. He deposed that Nancy was telling accused Dinesh to leave her for breathing but accused Dinesh further pressed her face and mouth and he also saw that accused Vicky was sitting on the back of Rishabh and was trying to strangulate the FIR No. 96/11 State vs. Dinesh Sharma Etc. 37 of 77 -: 38 :- neck of Rishabh and when he told accused Dinesh to leave Nancy, then Dinesh told him to switch off the light and further told him that they were trying to ease children as they were having bad dreams. He deposed that he switched off the light and went upstairs and hide himself on the adjoining roof and after some time, he heard that accused Dinesh was calling him. He stated that in the meanwhile, accused Vicky also reached upstairs and he heard accused Dinesh and Vicky saying that Ajay has absconded and that before Ajay calls somebody, they should also abscond from the back door and both the accused persons left the house on motorcycle. He further deposed that he went in the room where his maternal grand mother was sleeping and he tried to wake up Nancy and her grand mother but they did not respond. Rishabh was having severe injuries on his neck and his eyes were red. He got frightened and made a telephone call to his "mausa"
namely Roshan and told him the incident and his "mausa" reached their house and took Nancy to the hospital and Rishabh was made to get up by Roshan Mausa. He stated that Rishabh took Nancy in his lap and sat on the back seat of motorcycle driven by Roshan and after leaving Nancy in Satya Bhama Hospital, Roshan Mausa again returned and took Krishna Devi to nearby hospital in an auto. FIR No. 96/11 State vs. Dinesh Sharma Etc. 38 of 77 -: 39 :- (59) PW 16 Dr. Rishi Medical Officer, DDU Hospital deposed that Dr. Udai Kumar Singh who has prepared the MLCs of Dinesh Sharma and Vikas Sharma has left the services of the hospital and he identified his signatures and handwriting of Dr. Udai Kumar Singh as he had seen him signing and writing during ordinary course of his duties and he proved those MLCs as Ex. PW 16/A and Ex.PW 16/B respectively. (60) PW 17 Ct. Surender Kumar deposed that on 02.04.2011, he was posted at PS Nihal Vihar, Delhi and on that day, on receipt of DD entry no. 8A, he alongwith ASI Dalbir, HC Mahipal reached at the spot i.e. H. NO. 8, Yadav Park Extension, Kamruddin Nagar, Delhi and it was revealed that the injured had been shifted to Satya Bhama Hospital and he went there. He stated that after some time, SHO reached at the spot and the crime team also reached at the spot and crime team inspected the spot. He stated that articles meant for the last rites (cremation) were lying in front room of the house and there was one bathroom and one kitchen and stairs near the first floor. He stated that there was one cot in front of the front room and one mattress, one bed sheet, one green color pillow and one cover of pillow were lying on the cot. One single bed was also lying there and one wooden double bed was also found lying there and mattress and two pillows were FIR No. 96/11 State vs. Dinesh Sharma Etc. 39 of 77 -: 40 :- there on that bed. He stated one red color cloth tied into the knot was also lying near the single bed. Two big size steel glasses were found lying on the fridge and three small size steel glasses were found lying underneath the double bed. He stated that two plastic big size hand gloves were lying between the single bed and fridge and one tea cattle (pateela) having tea filter in it and one steel bowl were also lying in the kitchen and there were tea leaves in the pateela. He stated that ASI Dalbir Singh prepared the rukka and handed over the same and he went to police station and got lodged the FIR and after obtaining computerized copy of FIR and rukka from the duty officer, returned at the spot and handed over the same to the SHO who recorded my statement. Except two suggestions, this witness was not cross examined on the other material points.
(61)PW 18 Ct. Mahipal Singh on 02.04.2011, was posted at PS Nihal Vihar and on receipt of DD No. 8A, he alongwith ASI Dalbir and Ct. Surender reached at H. NO. 8, Yadav Park Extension, Kamruddin Nagar, Delhi and from there, he alongwith IO went to Satya Bhama Hospital leaving behind Ct. Surender at the spot. He stated that IO collected the MLC of two persons who were declared dead by the doctors. Dead bodies were shifted to SGM Hospital, Mangol Puri FIR No. 96/11 State vs. Dinesh Sharma Etc. 40 of 77 -: 41 :- under his supervision alongwith request to preserve the same. He deposed that after some time, SHO and IO reached at the hospital and SHO conducted the inquest proceedings and the dead bodies were subjected to postmortem and after the postmortem, the dead bodies were handed over to the relatives of the deceased. He stated that doctors handed over sealed parcels to ASI Dalbir after the postmortem and the same were seized by SHO vide memos Ex. PW 18/A and Ex. PW 18/B. (62) PW 19 ASI Dalbir Singh deposed that on 02.04.2011, he was posted at PS Nihal Vihar as ASI and on that day, DD No. 8A, Ex. PW 19/A was marked to him at about 06.25 am and he alongwith Ct. Surender and Ct. Mahipal reached at H. No. 8, Yadav Park in front of Shamshan Ghat. He stated that it was revealed that injured had been taken to Satya Bhama Hospital and it was also revealed that two dead bodies have been brought at Satya Bhama Hospital. He stated that he went to Satya Bhama Hospital alongwith SHO and Ct. Mahipal after leaving Ct. Surender at the spot and collected four MLCs of Ms. Krishna, Nancy, Isha and Rishabh and out of them, Krishna and Nancy were brought dead and others were having simple injuries. He deposed that he recorded the statement of Isha Ex.PW 10/A and SHO sent the dead FIR No. 96/11 State vs. Dinesh Sharma Etc. 41 of 77 -: 42 :- bodies for postmortem to SGM Hospital, Mangol Puri, Delhi alongwith Ct. Mahipal. He deposed that he inspected the spot and prepared a rukka Ex. PW 19/B and sent the same to PS Nihal Vihar through Ct. Narender and crime team reached at the spot, inspected the spot and photographer took the photographs of the spot from various angles. He stated that some material of cremation (sanskar ki samagri) was lying in the first room. There was kitchen and bathroom in that premises and one staircase. He stated that household articles including the bed, bedsheets, mattress and pillow were lying there. He stated that further investigation was taken up by the SHO and SHO seized the pateela, chalni, katori and after sealing the same in a plastic bucket, bucket was sealed in a pullanda with the seal of JS and he signed the memo Ex. PW 19/C. He stated that pillow and cloth were also sealed in a plastic katta and seized vide memo Ex.PW 19/D. The other pillow and bedsheet were also sealed in a plastic katta with the seal of JS and were seized vide memo Ex. PW 19/E. Two big steel glasses and three small glasses and two plastic gloves were also seized vide memo Ex.PW 19/F. He stated that Ct. Surender came back at the spot alongwith the copy of FIR and original rukka and handed over the same to the SHO and SHO recorded the statements of the witnesses. FIR No. 96/11 State vs. Dinesh Sharma Etc. 42 of 77 -: 43 :- He stated that thereafter, they all went to SGM Hospital, Mangol Puri, Delhi and the inquest papers were prepared and brief facts Ex. W 19/G were also prepared. He stated that a request Ex.PW 19/H was made to autopsy surgeon for conducting the postmortem on the dead bodies of Nancy and Krishna and he also filled up form 25.35 vide Ex. PW 19/J and Ex. PW 19/K and Ex. PW 19/L is the request regarding the dead body of Krishna. He stated that after the postmortem, the dead bodies were handed over to the relatives of the deceased vide receipts Ex. PW 3/B and Ex. PW 3/C and after postmortem, six sealed parcels and two sample seals were handed over to him by the doctor pertaining to deceased Nancy and he handed over the same to Insp. Jai Singh who seized the same vide memo Ex. PW 18/A. After the postmortem, four sealed parcels and two sample seals were handed over to him by the doctor pertaining to deceased Krishna and he handed over the same to Insp. Jai Singh who seized the same vide memo Ex. PW 18/B. (63) PW 20 Mukesh deposed that on 02.04.2011, he identified the dead bodies of his niece Nancy and his mausi Smt. Krishna at SGM Hospital, Mangol Puri and IO recorded his statement Ex.PW 20/A and Ex. PW 20/B and dead bodies were handed over to them vide receipts Ex. PW 3/B and Ex. PW 3/C respectively.
FIR No. 96/11 State vs. Dinesh Sharma Etc. 43 of 77 -: 44 :- (64) PW 21 Ct. Yudhvir deposed that on 06.06.2011, he was posted as Constable at PS Nihal Vihar and on the instructions of IO, he took four sealed exhibits and sample seal from maalkhana and deposited the same in FSL Rohini vide RC No. 90/21/11 and after depositing the exhibits, he came back to police station and handed over the copy of the same to the MHC(M).
(65) PW 22 HC Naresh deposed that on 24.06.2011, he was posted as substitute MHC(M) at PS Nihal Vihar and as per the directions of SHO, he handed over the exhibits to Ct. Krishan to deposit in the FSL and he proved photocopy of the original RC register as Ex. PW 22/A and photocopy of receipt of FSL Ex. PW 22/B. (66) PW 23 HC Ram Avtar deposed that on 02.04.2011, he was posted as MHC(M) at PS Nihal Vihar and on that day, Insp. Jai Singh handed over to him 14 pullandas and out of 14 pullandas, four pullandas were sealed with the seal of JS and the remaining were sealed with the seal of hospital. Insp. Jai Singh also handed over to him four sample seals and he made entry in register no. 19 vide Ex. Pw 23/A. He stated that on 15.04.2011, Insp. Jai Singh handed over to him one motorcycle and he proved the entry Ex. PW 23/B and entry of sample seals Ex. PW 23/C. He stated that on 25.05.2011, one exhibit along with one sample FIR No. 96/11 State vs. Dinesh Sharma Etc. 44 of 77 -: 45 :- seal was sent to FSL Rohini and he proved the photocopy of RC Ex. PW 23/D and FSL receipt Ex. PW 23/E. He stated that on 06.06.2011, four exhibits alongwith sample seal were sent to FSL Rohini vide RC Ex. PW 23/F and receipt Ex. PW 23/G and on 15.06.2011, one exhibit alongwith one sample seal was sent to FSL and phtocopy of RC Ex. PW 23/H and receipt Ex.P W 23/J. (67) PW 24 Ct. Kishan Kumar deposed that on 15.04.2011, he joined the investigation of this case alongwith Insp. Jai Singh and HC Vijender and they went to Metro Station Shahdra at 07.0007.30 pm and on the basis of secret information, accused Vikas Sharma @ Vicky was apprehended and he was interrogated and arrested vide arrest memo Ex. PW 24/A. His personal search was conducted vide memo Ex. PW 24/B and he made disclosure statement Ex. W 24/C and accused led the police party and pointed out the place of incident vide memo mark 24/A and this witness correctly identified accused Vikas @ Vicky. He stated that on 15.05.2011, as per the instrutions of IO, he collected the viscera box alongwith sample seal and reached FSL Rohini where the viscera box was deposited and thereafter, he returned to PS and handed over the receipt to the MHC(M). He further deposed that on 15.06.2011, he collected one viscera box and a sample seal and FIR No. 96/11 State vs. Dinesh Sharma Etc. 45 of 77 -: 46 :- deposited the same in the FSL and on 24.06.2011, he also collected 9 pullandas and three sample seals and deposited in the FSL. (68) PW 25 HC Umesh Singh deposed that on 09.04.2011, he was posted at PS Anand Parbat and on that day, SI Bheem Singh shared with him an information that accused wanted in the present case namely Dinesh Sharma would come at Community Centre, Karkardooma, near bus stop and if raid is conducted, he could be apprehended. He stated that thereafter, a raiding team was constituted consisting of himself, ASI Shahid Khan, HC Ved Pal, Ct. Sukhbir, Ct. Ismile, Ct. Birbal and Ct. Jagsaran and at about 06.40 pm, the raiding team reached at Community Centre alongwith the secret informer and they took their position near the bus stop. He stated that at about 07.20 pm, accused Dinesh Sharma came at bus stop and at the instance of secret informer, he was apprehended. Accused Dinesh Sharma was interrogated and he confessed his involvement in the present case. In this regard, SI BheemSain made the call at PS Nihal Vihar and came to know that the present case was already registered there. He stated that confessional statement of accused was recorded and he was arrested and personally searched vide memo Ex. PW 25/A and Ex.PW 25/B respectively. (69) PW 26 Sh. M.P. Singh, Ld. MM. Karkardooma Courts deposed that FIR No. 96/11 State vs. Dinesh Sharma Etc. 46 of 77 -: 47 :- on 23.04.2011, on applications Ex. PW 26/A and Ex.Pw 26/B of the IO PS Nihal Vihar, he recorded the statements of two child witnesses namely Ms. Isha and master Rishabh. He deposed that application for recording the statement u/s 164 Cr. PC was moved to Ms. Vandana Jain as she was the first Link MM, but she was on leave and this application was taken up by him and he recorded the statement of child witness Ms. Isha u/s 164 Cr. PC already exhibited as Ex.PW 10/B. He stated that on the same day, he also recorded the statement of child witness Mr. Rishabh already exhibited as Ex.PW 2/A and IO moved an application for the copies of statements and application of IO, Ex. PW 26/C. (70) PW 27 ASI Vijender deposed that on 10.04.2011, he joined the investigation of the present case alongwith Insp. Jai Singh and they went to Karkardooma Court and there, they met SI Bheem Sain from PS Anand Parbat alongwith accused Dinesh Sharma. He deposed that accused Dinesh Sharma was produced before Ld. MM and Insp. Jai Singh moved an application before the court to interrogate and arrest the accused and after taking permission from Ld. MM, custody of accused Dinesh Sharma was given to them and he was interrogated and his disclosure statement Ex.PW 27/A was recorded. Accused was FIR No. 96/11 State vs. Dinesh Sharma Etc. 47 of 77 -: 48 :- arrested vide arrest memo Ex. PW 27/B. He deposed that on 13.04.2011, he again joined the investigation alongwith Insp. Jai Singh and accused Dinesh Sharma was taken out from the lock up, PS Nihal Vihar and he was taken to the place of Incident i.e. H. No. 8, Yadav Park Extension, Kamruddin Nagar, Delhi alongwith the IO. He stated that the accused pointed out the place of incident and pointing out memo Ex. PW 27/C was prepared and thereafter, the accused was taken to SGM Hospital and after getting him medically examined, he was again brought back to PS and put up in the lock up. He stated that on 15.04.2011, he again joined the investigation with Insp. Jai Singh and on that day, a secret information was received by the IO that the coaccused in the present case will come to Shahdra Metro Station in the evening and he alongwith the IO, Ct. Krishan, accused Dinesh and secret informer, went to Metro Station, Shahdra. At around 07.30 pm, one boy came by crossing the road from underneath the bridge on a motorcycle and he was apprehended at the instance of secret informer. He deposed that on inquiry, the accused revealed his name as Vikas @ Vicky and coaccused Dinesh also identified Vikas as his brother and after interrogating the accused, disclosure statement Ex. PW 24/C was recorded and he was arrested vide arrest memo Ex. PW 24/B. He FIR No. 96/11 State vs. Dinesh Sharma Etc. 48 of 77 -: 49 :- stated that motorcycle bearing no. DL9SAG1623 on which the accused Vikas came to Shahdra Metro station was seized vide memo Ex. PW 27/D alongwith key and helmet and Ct. Krishan was sent to PS with motorcycle and he was directed to reach SGM Hospital after leaving the motorcycle in PS. He stated that he alongwith IO and both the accused went to SGM Hospital and the accused were got medically examined and in the meanwhile, Ct. Krishan also reached there. He stated that thereafter, they went to the place of incident i.e. H. NO. 8, Yadav Park Extension, Kamrudding Nagar, Delhi where the accused Vikas pointed out the place of incident and pointing out memo Ex. PW 27/E was prepared and thereafter, they reached at the PS with the accused persons and this witness identified both the accused. This witness also identified the motorcycle, helmet and keys exhibited as Ex. P5 and P6.
(71) PW 28 SI Bhim Sain deposed that on 09.04.2011, he was posted at PS Anand Vihar and on that day, HC Sukhbir, Ct. Ismile, Ct. Birbal and Ct. Jagsaran came to PS and informed him about accused Dinesh Sharma who was wanted in the case, that he would come at Karkardooma Community Centre to meet some one and if raid is conducted, he can be apprehended. The said information was shared FIR No. 96/11 State vs. Dinesh Sharma Etc. 49 of 77 -: 50 :- by him with SHO Insp. Rohtas Kumar who directed him to conduct the raid and a raiding party consisting of ASI Shahid Khan, HC Ved Pal, HC Umed, Ct. Jagsaran, Ct. Ismile, Ct. Birbal and himself, was formed. He stated that entry with regard to secret information was made in the roznamcha register against DD No. 16A by him and he also made departure entry vide copy of DD mark A. He stated that thereafter, the raiding team members alongwith the secret informer proceeded towards Community Centre in a Santro Car and two motorcycles and on the way when they reached near the school near Anand Vihar, they requested 34 passers by to join them but none agreed and at about 06.40 pm, they reached at the Community Centre and they again requested 45 passers by to join the investigation but none agreed. He further deposed that at about 07.20 pm, accused Dinesh Sharma (correctly identified by the witness) came there and secret informer pointed out towards him and accused Dinesh Sharma was apprehended by him and other raiding team members and accused Dinesh Sharma was interrogated and during interrogation, he confessed his involvement in the present case. The accused was arrested u/s 41.1 (b) Cr.PC and he was personally searched vide memos Ex.PW 25/A and Ex. PW 25/B and the information about his FIR No. 96/11 State vs. Dinesh Sharma Etc. 50 of 77 -: 51 :- arrest was sent to his mother Smt. Dhanwanti. He stated that the accused was taken to PS Anand Vihar where he made arrival entry in roznamcha against DD No. 18A vide Ex. PW 28/A and on the next day, the accused was produced before the court where the concerned IO interrogated him and he was sent to Judicial Custody and he handed over the documents of the kalandra u/s 41.1(b) Cr.PC to the IO. (72) PW 29 Insp. Jai Singh is the IO of the case who deposed that on 02.04.2011, he was posted at PS Nihal Vihar as SHO and at about 06.25 am, an information from control room was received that two ladies were found dead at Kamruddin Nagar near grave yard. He also received an information from control room regarding the admission of two female dead bodies at Satya Bhama Hospital, Nangloi and the entry with regard to above mentioned information was made in roznamcha against DD NO. 8A vide Ex. PW 19/A and proceedings were marked to ASI Dalbir and ASI Dalbir left the PS alongwith Ct. Surender. He stated that thereafter, he also went to the spot i.e. H. NO. 8, Yadav Park Extension, Kamruddin Nagar, Nangloi, Delhi alongwith Ct. Rajesh in private car bearing no. DL2CAL 8506 and there, he met with ASI Dalbir, Ct. Mahipal and Ct. Surender. He stated that Ct. Surender was left at the spot and he alongwith ASI Dalbir, Ct. Mahipal FIR No. 96/11 State vs. Dinesh Sharma Etc. 51 of 77 -: 52 :- went to Satya Bhama Hospital and information was also sent to crime team to reach at the spot. He further deposed that from Satya Bhama Hospital, he collected the MLCs no. 753 and 754 of deceased Krishna and deceased Nancy and he also collected the MLCs no. 755 and 756 of two other injured persons namely Rishabh and Baby Isha. He stated that the dead bodies of deceased Krishna and Nancy were sent to mortuary at SGM Hospital through Ct. Mahipal and ASI Dalbir recorded the statement of Baby Isha but he did not record the statement of other injured namely Rishabh as he was in perplexed condition and was unable to give the statement. Thereafter, they returned at the spot and found the crime team there. He stated that at the spot in a room, on the ground floor where the deceased Krishna used to sleep, he found a bed sheet of white color, a pillow of green color (having floral design) on the charpai (cot). He stated that there they also found a fridge and a wooden deewan by the side of which, there was double bed on which, deceased Nancy used to sleep and on the said double bed there were two pillows, out of which one was of matmaila color and other was of orange color having design of flower. On the said double bed, another piece of cloth of orange having the design of flower was lying and they also found a red color cloth FIR No. 96/11 State vs. Dinesh Sharma Etc. 52 of 77 -: 53 :- having knot under the above mentioned double bed and two big steel glasses were also found on the fridge. He stated that three small steel glasses were lying under the above mentioned double bed and two plastic gloves under deewan were also found lying. He stated that in the kitchen on the ground floor, there was a utensil (frying pan) to prepare tea in which, there was a bowl (katori) and a chalni. Crime team prepared a report and in the meanwhile, baby Isha and Rishabh also reached on the spot from hospital and ASI Dalbir handed over the rukka to Ct. Surender from getting the case registered. He deposed that he drew a site plan at the instance of baby Isha vide Ex. PW 29/A and the photographs of the spot from different angles were taken by the photographer and he recorded the statements of Crime Team Incharge and the photographer. He stated that he took into possession the bed sheet and pillow from the above mentioned cot and put the same in a bag of white color and seized vide memo Ex.PW 19/E. He further deposed that there was sliva on the bed sheet which was taken into possession. Two pillows from the double bed where the body of Nancy was lying was taken into possession and one pillow of orange color with flowers and another pillow was of off white color (matmaila). He stated that one small piece of cloth of orange color FIR No. 96/11 State vs. Dinesh Sharma Etc. 53 of 77 -: 54 :- with flowers and another small piece of cloth of red color with knot were lying on the bed and both these cloths were taken into possession and seized vide memo Ex. PW 19/D. He stated that two big steel glasses were kept on the fridge, three small glasses were lying on the bed and two plastic gloves which were lying between the double bed and fridge were taken into possession and seized vide memo Ex. PW 19/F. He stated that from the kitchen, a Fry pan of preparing the tea, one bowl (katori) and one chalni were taken into possession and same were kept in a plastic tokri of green color and seized vide memo Ex. PW 19/C. He deposed that ASI Dalbir was sent to hospital for the postmortem of the dead body and after conclusion of postmortem, ASI Dalbir and Ct. Mahipal came to the spot and they handed over to him the blood gauze, viscera, clothes, sample seal and vegenal swab of deceased Krishna Devi which were seized vide seizure memo Ex. PW 18/B. He stated that ASI Dalbir and Ct. Mahipal also handed over to him the blood gauze, viscera, clothes, sample seals, vaginal swab, P. Cells of anterior aspect of neck, swab of blood of right hand index finger of victim Nancy, which were seized vide seizure memo Ex. PW 18/A. He further stated that it appeared from the investigation that some money dispute was there between the accused persons and the FIR No. 96/11 State vs. Dinesh Sharma Etc. 54 of 77 -: 55 :- deceased and it also appeared from the investigation that some land was sold by the deceased Smt. Krishna Devi and the money which was received for the land was kept in the house and it also revealed in investigation that the accused and deceased persons were related to each other and the accused persons were having the frequent visiting terms in the house of deceased.
PW29 Inspector Jai Singh further deposed in the examination in chief that on 09.04.2011, SI Bheem Sain of PS Anand Vihar gave them the intimation that the acucsed Dinesh Sharma who is wanted in the case has been apprehended by them u/s 41.1(b) of Cr. PC and this intimation was reduced into writing vide DD No. 30A PS Nihal Vihar vide Ex.PW 29/A1 and on the next day as per the intimation, they reached at Karkardooma Court and moved an application before the Magistrate to interrogate and arrest the accused Dinesh Sharma in case FIR No. 96/11 and permission was granted and accused was interrogated and his disclosure statement Ex. PW 27/A was recorded. Accused Dinesh was arrested vide arrest memo Ex. PW 27/B and PW29 collected the relevant documents pertaining to kallandara u/s 41.1 Cr. PC vide Ex. PW 29/B1. He deposed that on 13.04.2011, he obtained the PC remand of accused Dinesh Sharma from the FIR No. 96/11 State vs. Dinesh Sharma Etc. 55 of 77 -: 56 :- concerned court and the accused led them to the place of incident and on his pointing out, pointing out memo Ex. PW 27/C was prepared. He further deposed that on 15.04.2011, at the instance of secret informer, accused Vikas Sharma was arrested and personally searched vide memos Ex. PW 24/A and Ex. W 24/B and his disclosure statement Ex. PW 24/C was recorded. The motorcycle used in the crime was taken into possession vide memo Ex. PW 27/E and accused Vikas Sharma led them to the place of occurrence and pointing out memo Ex. PW 27/E was prepared. He stated that on 17.04.2011, he collected the PCR form from the control room, Aadharsh Nagar and recorded the statement of ASI Ranveer Singh and on 23.04.2011, the statements of eye witnesses were recorded u/s 164 Cr.PC. The exhibits of the deceased were sent to the FSL Rohini on different dates and the scaled site plan was prepared through draftsman SI Mahesh. He stated that on 21.06.2011, the blood samples of accused persons were collected at DDU Hospital vide seizure memo Ex. PW 4/A and on 22.06.2011, he collected the scaled site plan from SI Mahesh and he also collected the postmortem reports of both the deceased namely Nancy and Smt. Krishna.
(73) PW 30 Dr. Shubhra Kumar Paul deposed that on 25.05.2011, a FIR No. 96/11 State vs. Dinesh Sharma Etc. 56 of 77 -: 57 :- wooden box in sealed condition with the seal of SGMH, Mortuary, Mangol Puri, Delhi alongwith sample seal were received from PS Nihal vihar and the wooden box was found containing three jars. One jar which was exhibited as Ex. 1A was containing stomach and piece of small intestine with contents and the other jar Ex. 1B was containing pieces of liver, spleen and kidney and third jar Ex. 1C was containing blood sample volume and these samples were sent to him to ascertain if there was any poisonous substance and on chemical and TLC examination, no poisonous substance could be detected and the exhibits were belonging to deceased Nancy and his detailed report is Ex. PW 30/A. He further stated that on the same day, he also received three jars containing stomach, piece of small intestine with contents, pieces of liver, spleen, kidney and blood sample and he prepared the report on these samples vide Ex. PW 30/B. (74) PW 31 Ms. Seema Nain deposed that on 06.06.2011, four sealed parcels were received and the same were marked to her for biological and serological examination and she prepared the biological and serological reports Ex. PW 31/A and Ex. PW 31/B. She further stated that on 24.06.2011, 9 sealed parcels were marked to him for biological and serological examination and she examined the exhibits and FIR No. 96/11 State vs. Dinesh Sharma Etc. 57 of 77 -: 58 :- prepared the biological and serological report vide Ex.PW 31/C and Ex.PW 31/D. (75) The prosecution examined 31 witnesses and out of 31 witnesses, three witnesses are eye witnesses and out of these three witnesses Rishabh asnd Isha are children aged about 11 years and 10 years respectively and Ajay is major. Before discussing other evidence, the versions of eye witnesses before the police and before the Magistrate are necessary to be discussed here.
Version of the eye witness namely Isha Sharma (PW10). (76) The statement of Isha was recorded by the police on 02.04.2011 on the basis of which, the present FIR was recorded and the statement is as under:
(77) " बयान ििया िि मै पता उपरोक पर अपने मातािपता व भाईबहन िे साथ रहती हू ।ं और 4th class मे नतथू राम Convent School मे पडती हू ।ं जो िल शाम िो मेरे मातािपता मेरी बुआ िे घर पेहवा हिरयाणा चले गए थे जो रात िो घर पर मेरी दादी िृषणा, मेरी बहन ननै सी, भाई िरषभ और बुआ िा लडिा अजय घर पर ही थे। और सोने िी तय ै ारी िर रहे थे िि समय िरीब रात 10.30 बजे मेरे जीजा िदनेश व िवकिी घर पर आए जो पहले भी िई बार घर पर आते रहते थे।
जो उनिो चाय देने िे बाद मै, मेरी बहन ननै सी, भाई िरषभ व दादी और जीजा िदनेश व िवकिी अनदर वाले िमरे मे सो गए जो बाहर वाले िमरे मे बुआ िा लडिा अजय सो गया। जो अनदर ै पर मै, ननै सी व िरषभ सो गए जो चारपाई पर दादी िृषणा सो गई और िदनेश व िवकिी डबल बड छोटे बड ै पर लेट गए। जो िमरे मे छोटा बलब भी जल रहा था। जो रात िो दादी िी िचलाने िी आवाज सुनने पर मेरी आंख खुल गई तो मन ै े देखा िि िदनेश ने िपडे िो दादी िे गले मे बांध FIR No. 96/11 State vs. Dinesh Sharma Etc. 58 of 77 -: 59 :- ं पर तििया रख िर दबा रहा था। जो यह देखिर मै िर खीच रहा था व िवकिी दादी िे मुह ं िरिे लेटी रही जो थोडी देर बाद जब दादी िी आवाज आने बनद हो गई डर गई और आंख बद तो िदनेश ने मेरी बहन ननै सी िे मुंह व गददन पर िपडा बांध िदया व तििये से मुंह दबाने लगा जब मेरी बहन छटपटाने लगी तो मै धीरे से उठिर बाहर जाने लगा तो िदनेश ने मुझे भी गले से पिड िलया व मेरा गला दबाने लगा और मुझे धकिा दे िदया। इसी दौरान मेरी बहन ने खडा होने िी िोिशश िी जो िदनेश ने दोबारा ननै सी िा गला पिड िलया जो मै धकिे से िगर गई थी और धीरे से उठिर बाहर वाले िमरे जहां पर बुआ िा लडिा सो रहा था उस िमरे मे आ गई और सारी बात अजय िो बताई तो अजय ने तुरत ं अपने िमरे िा दरवाजा बनद िर िलया।
उसिे िुछ देर बाद िदनेश व िवकिी ने हमे िमरा खोलने िे िलये िहा जो हमने िमरा नही खोला तो िदनेश व िवकिी पीछे वाले रासते से चले गए। जो िदनेश ने जो मेरा गला दबाया था उससे मुझे भी चोट आई ह।ै जो उनिे चले जाने िे बाद समय 4 बजे िरीब सुबह हमने दरवाजा खोलिर देखा तो दादी व मेरी बहन बहे ोश पडी थी। व मेरा भाई िरषभ भी डरा हु आ था व उसिे गले व आंख पर भी चोट लगी हु ई थी। इसिे बाद अजय ने रोशन फूफा िो फोन ििया जो रोशन फूफा अपनी motorcycle पर तुरत ं हमारे घर आ गए व बहन ननै सी िो motorcycle पर मेरे भाई िरषभ िे साथ असपताल लेिर चले गए जो िदनेश व िवकिी ने मेरी बहन ननै सी व दादी िृषणा िो जान से मार िदया व मुझे व मेरे भाई िरषभ िो जान से मारने िी नीयत से चोट ं ाई ह।ै िदनेश व िवकिी िे िखलाफ िानूनी िायदवाही िी जावे ।"
पहु च (78) The statement of Isha was also recorded u/s 164 Cr. PC by Sh. M.P. Singh, Ld. MM on 23.04.2011 and the statement is as under:
" I am studying in class fourth in Nathu Ram School. On 02.04.2011, my parents had gone out. In the house, I was with my grand mother Krishna Sharma, my sister Nancy Sharma, my brother Rishabh and Ajay Bhai. We had taken our meals at about 08.00 pm and after taking our meals, I and my brother Rishabh went out and purchased Ice Cream. We got the Ice Cream inside the house and ate it. All of us slept in one room. Me, my sister Nancy Sharma and my brother Rishabh slept on a FIR No. 96/11 State vs. Dinesh Sharma Etc. 59 of 77 -: 60 :- bed and my grand mother slept on the cot and Ajay Bhai was sleeping in the shop. At about10.00 pm, Vicky and Dinesh entered the house and they lied down on the single bed which was kept in the room. Vicky and Dinesh prepared three cups of tea. Vicky and Dinesh had drunk their cups of tea. My grand mother was not wanting to have tea but they forced my grnad mother to have tea. My grand mother refused to have tea. They then forcibly put the glass of tea on the lips of my grand mother. My grand mother threw away the glass of tea on the ground. All this happened while we were only lying down with our eyes closed due to fear and only hearing the conversation. Due to sound of the glass dropping on the ground, all of us got up and opened our eyes and we were seeing the incident by only partially opening our eyes due to fear. I saw that Dinesh was strangulating the neck of my grand mother with a cloth and Vicky had put a pillow on the mouth of my grand mother and was pressing it. My grnad mother was crying a lot and then after some time, she stopped crying. I was totally scared. Due to fear, I did not get out of the bed but I was seeing by only partially opening the eyes. Dinesh and Vicky had seen Nancy with her eyes open. When they saw Nancy with her eyes open, then Nancy told them that I have seen both of you and I will tell my father about it. Then Dinesh and Vicky pounced upon Nancy. They had put cloth on her mouth. They had also tied her neck with a cloth and they were pressing her mouth with a pillow on the bed. My sister Nancy Sharma started gasping. Due to fear, I tried to surreptitiously walk out of the room but all of a sudden, Dinesh tried to strangulate my neck with one of his hands. Dinesh had caught hold of me with one of his hands and he was catching hold of my sister Nancy Sharma with his other hand. I gave a kick with my leg to Dinesh and somehow, his hands came off from my neck FIR No. 96/11 State vs. Dinesh Sharma Etc. 60 of 77 -: 61 :- and I fled away to the place where Ajay was sleeping. I locked from inside the shop where Ajay was sleeping and I woke him up and told him about the incident. I told Ajay to see what was happening. Ajay then came inside the room of my grand mother and put on the lights however, Dinesh and Vicky started shouting at him to put off the lights. Ajay then put the lights off. Ajay asked Dinesh and Vicky when he had put on the lights on seeing the condition of Nancy "ye Nancy ko kya ho raha hai. Dinesh and Vicky replied that she was feeling scared in her dreams. Ajay then came to me in the shop where Ajay was sleeping . Ajay then told to me that Dinesh and Vicky were relatives. By then, it was about 03.30 am and it was time to open the shop. Ajay then asked for the keys of the shop from Dinesh from the Jaali wala gate. Dinesh did not give the keys of the shop but he gave some other keys. Ajay protested and asked Dinesh why he had not given him the correct keys. Vicky all this while was inside the room of my grand mother. Ajay then went upstairs to urinate. Dinesh and Vicky had seen Ajay going upstairs and they started shouting at him to stop but Ajay did not stop due to fear and went inside the toilet. They did not check inside the toilet and they thought Ajay had left the house. Thereafter, they thought that Ajay would tell everybody and then they went out of the house and then we saw that my sister Nancy and my grand mother were lying unconscious. Rishabh was in the room completely scared. Then Ajay called Roshan fufa. Roshan fufa came and my sister Nancy was taken on motorcycle. I also received injuries in my neck. I saw that my brother Rishabh had some marks on his neck and there was blood in his eyes".
Version of the eye witness namely Rishabh (PW2). FIR No. 96/11 State vs. Dinesh Sharma Etc. 61 of 77 -: 62 :- (79)The statement of Rishabh u/s 161 Cr. PC is as under;
" बयान ििया िि मै पता उपरोक पर अपनी दादी िृषणा, मातािपता व बहनो िे साथ रहता हू ।ँ िल शाम िो मेरे मातािपता मेरी बुआ िे घर पेहवा हिरयाणा गये थे। जो घर पर मेरी दादी, दोनो बहने ईशा व ननै सी, मै व बुआ िा लडिा अजय थे और रात सोने िी तय ै ारी िर रहे थे िि उस समय िरीब 10.30 बजे रात मेरे जीजा िदनेश व उसिा भाई िवकिी घर पर आये जो पहले भी िई बार घर पर आते रहते थे जो उनिो चाय देने िे बाद हम सभी सो गये । जो मै , ईशा, ननै सी व दादी और िदनेश व िवकिी अनदर वाले िमरे मे तथा अजय बाहर वाले िमरे मे सो गया। जो एि bed पर हम तीनो भाईबहन, चारपाई पर दादी तथा छोटे बड ै पर िदनेश व िवकिी सो गए। जो िमरे मे छोटा बलब जल रहा था। रात िो शोर सुन िर मेरी नीद खुली तो देखा िदनेश ने दादी िे गले मे िपडा बांध िर उसे खीच रहा था तथा िवकिी ने तििये से मुह ं दबा रहा था मै डर गया और चुपचाप सो गया/ लेटा रहा। जब दादी िी आवाज बनद हो गई तो उनहोने ननै सी िे गले मे िपडा डाल िर खीच िदया तथा तििये से िवकिी ने मुंह दबा िदया। जो मेरे साथ भी गला दबाने िी िोिशश िी लेििन मे चुपचाप पडा रहा जो दोनो वहां से चले गए तो ईशा व अजय िमरे मे आये और अजय ने फूफा रोशन िो phone िर िदया और फूफा रोशन अपनी bike लेिर आ गये तथा हमे असपताल लेिर गए जहां दादी व ननै सी िो doctor ने मृत घोिषत िर िदया तथा मुझे व ईशा िो ईलाज िरने िे बाद छुटी िर दी। आपने मेरा बयान िलखा जो सुन िलया ठीि ह।ै "
(80) The statement of Rishabh u/s 164 Cr.PC before the Magistrate Sh. M P Singh, recorded on 23.04.2011 is as under:
"I am studying in class sixth in Nathu Ram Convent School. The incident took place on the intervening night of 01.04.2011 and 02.04.2011. My parents had gone out and they were not in the house. In the house I was with my grand mother Krishna Sharma, my elder sister Nancy Sharma, my sister Isha and Ajay (who is my Bua's son). We were sleeping after having taken our meals. All of us except FIR No. 96/11 State vs. Dinesh Sharma Etc. 62 of 77 -: 63 :- Ajay slept in one room. Me, my elder sister Nancy Sharma and my sister Isha slept on a double bed and my grand mother slept on a cot and Ajay Bhai was sleeping in the shop. There was also a single bed in the room on which nobody was sleeping. Two night bulbs were on. We were sleeping. At night Vicky and Dinesh entered the house but I do not know the exact time because I was asleep. My grand mother had opened the door. My grand mother woke up Ajay and told him to prepare two cups of tea for Dinesh and saying that the tea is too hot. Ajay gave them a katori. My grand mother then told Ajay that give me the keys of the gate which was on the back side. Ajay gave her the keys and on the instructions of my grand mother, he went and slept in the shop. Then Dinesh and Vicky lied down on the single bed. They were only pretending that they were sleeping. Then all of us slept on our respective beds. After some time Dinesh and Vicky woke up and prepared two cups of tea. They had put something in the tea however I do not know what they had put in the tea. But I suspect that it was poison. Then they gave tea to my grand mother. But she was not wanting to have tea but they forced my grand mother to have tea. My grand mother was forcibly made to have some tea. My grand mother then with the force of her hands throw away the glass on the ground. Dinesh and Vicky picked up a shawl and tied it around her head and they covered her with a blanket. My sister Nancy woke up. Dinesh and Vicky had seen them that I have seen both of you and I will tell my father about it. Then Dinesh and Vicky pounced upon Nancy. They had put cloth on her mouth. They had also tied her neck with a handkerchief and they were pressing her mouth with a pillow on the bed. My sister Nancy Sharma started gasping and she started crying at top of her voice. Due to the shouts of Nancy I woke up from sleep. Me and my sister Isha started crying FIR No. 96/11 State vs. Dinesh Sharma Etc. 63 of 77 -: 64 :- and we saying "Bibbi Bibbi". We used to call our grand mother Bibbi. Dinesh had caught hold of my sister Isha from her neck with one of his hands and he was catching hold of my sister Nancy Sharma with his other hand. Vicky had caught hold of my mouth with both his hands and he sat on my stomach while his hands were on my mouth. I started gasping. Nancy was also gasping. My sister Nancy bite one of the fingers of Dinesh. My sister Isha gave a leg kick to Dinesh and somehow his hands came off from her neck and she fled away to the place where Ajay was sleeping. Vicky was catching hold of me and Dinesh was catching hold of Nancy. Isha went inside the shop and latched it from inside and woke up Ajay and told him "Chor aa Gaye, Chor aa Gaye". Ajay woke up and Isha asked him to go and see what was happening. Ajay came out of the shop to see what was happening and Isha latched the shop again from inside. Ajay came inside the room and came inside the room where I was and put on the big tube light. Dinesh and Vicky started shouting at him to put off the lights. Ajay then put the lights off. However Ajay switched on the tube light again and Ajay asked Dinesh and Vicky on seeing the condition of Nancy "Yeh Bacchey Pair kyun chatpata Rahen Hain".
Dinesh and Vicky replied that the children were feeling scared in their dreams and we are only making them comfortable. Ajay then due to fear went to the roof. Ajay then came downstairs very quietly due to fear and went inside the shop and latched it from inside. The killed Nancy by strangulating her. They had caught hold of my neck for a long time. Both of them left me and went to the shop where Isha and Ajay were present. Ajay asked for the keys of the shop as the shop had to be opened. They picked up a bunch of keys which was hanging from the wall and took out the keys of the shop and kept it with themselves and took out the wrong keys FIR No. 96/11 State vs. Dinesh Sharma Etc. 64 of 77 -: 65 :- and gave the wrong keys to Ajay. Ajay protested and asked them why they had not given him the correct keys. Then both of them started pushing the door of the shop with the strength of their bodies to open it. They could not break open the door of the shop and they came inside where I was. And then they took out all the clothes and all the articles and things and scattered them in the house. They with the help of a wet cloth they started wiping my hands, my legs and my face. They also started wiping Nancy in a similar fashion. After that for some time they were present inside the room only. They were searching for some articles. Dinesh then asked Vicky for the time. Vicky told Dinesh that it was 04.00 AM. Dinesh told Vicky that they were having only one hour left to do the job. They kept on moving here and there inside the house. Then they started calling Ajay in the voice of my grand mother to make it appear as if my grand mother was calling Ajay. They were also saying that "Nani Hosh Mein Aa Gayee Paani Lao". Ajay said " Bibbi, Bibbi, Bibbi" Dinesh in a mild voice said "Haaaan". Ajay then went upstairs to the toilet surreptitiously. Dinesh and Vicky had seen Ajay going upstairs and they chased him and were shouting at him to stop but Ajay did not stop due to fear and went inside the toilet. They searched on the roof but they did not check inside the toilet and they thought Ajay had jumped out from the roof. Thereafter they thought that Ajay would tell everybody and then they went out of the house from the back gate. After some time I heard noise of motorcycle. I had sustained injuries in my neck and there was blood in my eyes. (At this stage, the child Rishab had shown three photographs to me. In one photograph there are injuries on his neck, in the second photograph there is blood in his eyes and in the third photograph there are injuries marks on his face, on his neck and blood in his eyes. The photographs have been FIR No. 96/11 State vs. Dinesh Sharma Etc. 65 of 77 -: 66 :- returned back to the child witness Rishab) then I got up from my bed thinking that Dinesh and Vicky had left. I went to the toilet upstairs to call Ajay. Ajay was shouting "Saare Bachon Ko Maar Diya Hai, Mujhe Chhabi De Do Dukan To Khol Loon". I told Ajay that Dinesh and Vicky had already left. Then I and Ajay came down and we were searching for the mobile phone. My sister Isha also came out of the shop. We found the mobile phone on the bed on which we were sleeping. I tried to call up my father but his phone was switched off. We went inside the shop and we found that the medicine bag of my grand mother was hanging and from inside that we took out a diary of my grand mother and took out the number of Roshan Pushpa and called up Roshan Phupha. After some time Roshan Phupha came on motorcycle. We opened the shutter. Roshan Phupha tried to wake up my grand mother and my sister Nancy but they did not wake up. Then Roshan Phupha took my sister Nancy in his lap and took her out and brought her in the shop and tried to search for a auto rikshaw. He could not find any auto rickshaw in the early morning. Then he sat on the bike. I was sitting on the back side and I was holding my sister Nancy. When we reached hospital Roshan Phupha took my sister Nancy inside and told me to go back to the house and get my grand mother in hospital. On foot I came back to the house. Soon thereafter Roshan Phupha also came back to the house. We managed to find an auto rickshaw. The auto rickshaw stopped. The driver of the auto rickshaw, Ajay, my Roshan Phupha and myself had picked up the cot on which my grand mother was lying and took her to the hospital on the cot itself by walking the entire distance to the hospital. The hospital people said that my grand mother has to be shifted in ICU in some other hospital. They had declared my sister Nancy dead. The auto rickshaw driver had got his auto rickshaw FIR No. 96/11 State vs. Dinesh Sharma Etc. 66 of 77 -: 67 :- to the hospital by then and in the auto rickshaw my grand mother was taken to Satya Bhama Hospital. In the Satya Bhama Hospital my grand mother was declared brought dead. I alongwith Roshan Phupha came back to the house and he left me at the house and went away. Roshan Phupha had told me to remain inside and to lock up all the doors and the windows. I and my sister Isha were inside the house. After some time my Tau came. On seeing my Tau I opened the door. Tau told me and Isha to come to the hospital after locking the gates. Then we went to the hospital. In the hospital the police personnels had come and they started making inquiries".
The statement of eye witness namely Ajay (PW15) under Section 161 Cr.P.C is as under:
(81)" बयान ििया िि मै पता उपरोक पर अपने मामामामी िे साथ उनिे पिरवार सिहत रहता रहता हू ँ िल शाम मेरे मामामामी हमारे घर पेहवा चले गये थे जो घर मे ईशा, िरषभ, ननै सी व ै ारी िर रहे थे िि समय िरीब 10.30 बजे रात घर पर नानी िृषणा थी जो हम रात सोने िी तय िदनेश व िवकिी आये जो पहले भी िई बार घर पर आते रहते थे जो उनिो चाय देने िे बाद ईशा, ननै सी, िरषभ, नानी िृषणा व िवकिी और िदनेश अनदर वाले िमरे मे सो गये जो बाहर वाले िमरे मे मै सो गया जो रात ईशा मेरे िमरे मे आई िजसने मुझे बताया िी नानी िृषणा व ननै सी िो िदनेश व िवकिी ने मार िदया है व िरषभ िो भी मार िदया। तथा मुझे भी मारने िी िोिशश िी ह।ै जो मैने िमरे िा दरवाजा बनद िर िलया जो िुछ देर बाद िदनेश व िवकिी ने िमरा खोलने िे िलये िहा जो मैने िमरा नही खोला जो पीछे िे दरवाजे से भाग गए। जो सुबह मन ै े उनिे जाने िे बाद दरवाजा खोला तो देखा नानी व ननै सी बहे ोश पडी है व िरषभ िे गले व ै े रोशन फूफा िो Phone ििया जो वह बाईि लेिर आए और उनहे आंख पर चोट थे। जो मन असपताल लेिर चले गए आपने मेरा बयान िलखा सुन िलया ठीि ह।ै "
(82) PW 3 Satpal, the father of deceased Nancy and son of Krishna Devi, FIR No. 96/11 State vs. Dinesh Sharma Etc. 67 of 77 -: 68 :- deceased was out of his house and he got information on 02.04.2011, early in the morning about the incident. His statement that he gave loan of Rs. 3.5 Lacs to the accused persons, which was not returned despite repeated demands and couple of days before the incident, her mother sold her house situated in District Sonepat (Haryana) for a sum of Rs. 5 Lacs is important because it proves the motive as accused persons ransacked the box and searched it thoroughly for money. In cross examination, the suggestion was put to the witness that he did not hand over the documents of the house and the receipt to the police and he specifically volunteered that the documents are with the buyers of the house and police did not demand the documents. It is proved that accused persons are relatives of Satpal and they had visiting terms at the house of Satpal and they used to visit frequently. Thus, they were aware about each and every activity and important events in the house of Satpal.
(83) PW 2 Rishabh and PW 10 Isha Sharma are important eye witnesses.
Their statements u/s 164 Cr. PC were also recorded by the Magistrate on 23.04.2011 Ex. PW 2/A and Ex. PW 10/A respectively wherein the details of incident have been narrated by both the witnesses and there is nothing on record to doubt the truthfulness of the witnesses who FIR No. 96/11 State vs. Dinesh Sharma Etc. 68 of 77 -: 69 :- were of tender age. Though, there are certain improvements in the statements of the witnesses but that does not lead to the innocence of the accused persons. The witnesses were neither mature nor having any experience of criminal proceedings. It cannot be ignored that the small children who witnessed the brutal incident committed by the relatives were not terrified at the time of making the statement as well as at the time of incident. Both the witnesses bravely faced the situation despite the fact that the accused persons wanted to kill both of them. There is no reason why these witness involved the accused persons falsely. So far as, the improvements in the statements of both the child witnesses are concerned, that is of no importance as both the witnesses were under shock and nobody can imagine the trauma they faced during the incident and during deposing in the court and making statement before the police. The statements of the child witnesses regarding the incident have been corroborated by the statements of PW 11 and PW 12 and the postmortem report Ex. PW 11/A of Nancy and Post Mortem Report of Krishna Devi Ex. PW12/A, wherein the causes of deaths have been mentioned as cumulative effect of asphyxia due to smothering and strangulation( manual). There is no cross examination of PW 11 and PW 12.
FIR No. 96/11 State vs. Dinesh Sharma Etc. 69 of 77 -: 70 :- (84) PW 12 Dr. Manoj Dhingra proved the postmortem report of Smt. Krishna Devi Ex.PW 12/A. The postmortem was conducted by Dr. Deepak Sharma alongwith Dr. Manoj Dhingra and as per the report, the death was due to asphyxia consequent to the pressure over the face and neck, homicidal in nature. Both the postmortem reports are in consonance with the statements of PW 2 and PW 10.
(85) PW 15 Ajay is also an important witness as he is the eye witness and was residing with Satpal. He was sleeping in the shop when Isha PW 10 came to him frightened and told that accused persons killed Rishabh, Nancy and her grand mother Krishna. Ajay immediately rushed to the room and switched on the light and saw that a shawl was wrapped around the face and neck of Krishna Devi and accused Dinesh was sitting upon the body of Nancy and was pressing the neck and face of Nancy with pillow. Accused Vicky was sitting on the back of Rishabh and was trying to strangulate his neck. These facts also coroborates the cause of death and about the role and presence of both the accused persons.
(86) This is also establish beyond reasonable doubt that accused persons attempted to kill Rishabh and Isha. Dr. Gopal Sharma, the medical Officer of Satya Bhama Hospital, examined Rishabh and found the FIR No. 96/11 State vs. Dinesh Sharma Etc. 70 of 77 -: 71 :- bruises and abrasion marks on the right side lower eyelid and left lower mostrill and his medical report is Ex. PW 6/C. On examination, Rishabh was complaining pain in neck, headache and Nausea. The medical of Isha is Ex. PW 6/D. The bruises marks over right side of neck was present and from both the medical reports, it is proved that both the children were attacked and the accused persons tried to kill both of them.
(87) PW 29 Jai Singh, the IO of this case has proved numerous documents. There is only one suggestion to this witness that the accused are innocent and their names have been entangled at the instance of Satpal. There is no other suggestion as to why their names were entangled and what was the motive behind implicating them. (88) It is argued by Ld. Defence Counsel that out of three alleged eye witnesses, two witnesses are child witnesses and there are improvements in their statements and they narrated the imaginative stories and their statements cannot be relied upon as their statements were recorded without oath and they are not competent witnesses. (89) Evidence act does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, section 118 of the Evidence Act envisages that all persons shall be FIR No. 96/11 State vs. Dinesh Sharma Etc. 71 of 77 -: 72 :- competent to testify, unless the court considers that they are prevented from understanding the question put to them or from giving rational answers to these questions, because of tender years, extreme old age, diseasewhether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. This position was concisely stated by BREWER, J. in Wheeler vs. United States. The evidence of a child witness is not required to be rejected per se; but the court as a rule of prudence considers such evidence with close scrutiny and only being convicted about the quality thereof and reliability can record conviction, based thereon." (90) It is true that child witnesses can be tutored easily and therefore, their evidence must be scrutinized with extreme care and caution before being acted upon as true and dependable. In the present case when the alleged incident occurred, the parents of both the witnesses were out of Delhi and when the statement of Isha was recorded on 02.04.2011, there was no chance for the family members to tutor her and she had narrated each and every detail of the incident in her statement Ex. PW 10/A. Statements of both the witnesses u/s 164 Cr.PC were also recorded by the Magistrate in which they gave the FIR No. 96/11 State vs. Dinesh Sharma Etc. 72 of 77 -: 73 :- minute details of the incident. Apart from the statements of both the child witnesses, the statement of Ajay was also recorded who supported the version of the child witnesses. Although, complainant Isha was about 10 years but her statement was recorded almost immediately after the occurrence. The police officials reached at the spot and the hospital immediately after the incident and complainant Isha, her brother Rishabh and Ajay were found present at the spot. The investigating officer lodged the FIR on the basis of statement of complainant Isha and statement of complainant Isha inspires confidence. There appears to be no possibility that her statement is a tutored one. Complainant has withstood the test of cross examination. Her presence and the presence of her brother was natural and both the statements are trustworthy and reliable. PW 15 Ajay has also supported the case of the prosecution.
(91) Conviction can be solely based on the evidence of child witness, when it is cogent, worthy of total credence and repose belief which cannot be doubted on any reasonable basis. Many earliest jurist of old times placed a child in the category of persons who were not competent to testify, but they also felt the difficulty that at times, the only witness available to the occurrence may be a child witness when FIR No. 96/11 State vs. Dinesh Sharma Etc. 73 of 77 -: 74 :- the offence has been committed in a house during night time, where no person other than a child was present and in these contingencies, several jurist allowed the child to be a competent witness. In the modern era, section 118 of Evidence Act, 1872 lays down a general rule that every person, irrespective of his age, is competent to testify unless he is found incompetent due to the reasons mentioned therein. Section 118 of Evidence Act makes it clear that the sole test of competencies of the child to give evidence depends not on his age, but the degree of his understanding. The section lays emphasis on the understanding and not on the age of the witness. As a rule of prudence, the court always finds it desirable to have to corroboration to such evidence from other dependable evidence on record and in the present case, the evidence of both the child witnesses is corroborated with the evidence of PW 15 Ajay. PW 15 Ajay has given the names of both the accused as assailants and stated that as to how they came to their house and tea was served to both the accused and they both slept in the room of both the child witnesses and Krishna Devi and how Isha narrated the incident to him when she came to his room. The evidence of Dr. Gopal Sharma PW 6 is suggesting the death of Smt. Krishna Devi, abrasion mark on the left side of neck, showing bruises and FIR No. 96/11 State vs. Dinesh Sharma Etc. 74 of 77 -: 75 :- abrasion mark on Rishabh, showing bruises mark on Isha and showing abrasion mark on left side of upper eyelid and an abrasion mark on around neck of Nancy and the evidence of Dr. Gopal Sharma corroborates the evidence of PW 2 Rishabh and PW 10 Isha Sharma when they stated that both the accused had assaulted them with shawl, scarf and hands as both the accused tried to strangulate the necks of the injured and the deceased. Having regard to the nature of injuries, I cannot doubt that this act was done by the accused persons and the medical evidence is corroborating the evidence of Rishabh, Isha and Ajay.
(92) It is argued by Ld. Defence Counsel that all the three evidences are related to each other and they are interested witnesses and their evidence cannot be read as trustworthy due to their relationship. Although, the above three witnesses who supported the prosecution case are related to each other as well as the deceased, but their testimonies cannot be rejected only on the mere ground of relationship. A relationship by itself is not sufficient to discard the evidence of witness unworthy of credit in the absence of other circumstances to detract from evidenciary value of their testimonies. There is no hard and fast rule that family members can never be true FIR No. 96/11 State vs. Dinesh Sharma Etc. 75 of 77 -: 76 :- witnesses to the occurrence and that they will always depose falsely before the court. It will always depend upon the facts and circumstances of a given case. The concept of interested witness essentially must carry with it the element of unfairness and undue intention to falsely implicate the accused. It is only when these elements are present and statement of the witnesses unworthy of credence then the court would examine the possibility of discarding such statements but where the presence of eye witnesses is proved to be natural and their statements are nothing but truthful disclosure of actual facts leading to the occurrence and occurrence itself, it would not be permissible for the court to discard the statements of such related or friendly witnesses. More so, the evidence of an injured witness must be given due weightage being a stamped witness thus, his presence cannot be doubted. It is observed by Hon'ble Supreme Court in State of UP Vs Naresh (2011) 4 SCC 324 that the statement of injured is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was FIR No. 96/11 State vs. Dinesh Sharma Etc. 76 of 77 -: 77 :- present during the occurrence. Thus, the testimony of injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds of rejection of his evidence on the basis of major contradictions and discrepancies therein.
(93) In view of the aforesaid analysis of facts and evidence on record, the accused persons namely Dinesh Sharma and Vikas Sharma @ Vicky are held guilty for the offences punishable under Section 302/307/34 IPC.
Announced in the open court today i.e. 25th day of April, 2016 (Rakesh KumarIII) Additional Sessions Judge03, West District, Delhi FIR No. 96/11 State vs. Dinesh Sharma Etc. 77 of 77