Delhi District Court
Fir No. 145/11; State vs . Munna Page 1 Of 48 on 28 November, 2014
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03: NW: ROHINI: DELHI
SESSIONS CASE NO. 79/13
FIR No. 145/11
P.S. Mahendra Park
U/S: 302/307 IPC &
25/27/54/59 Arms Act
State
Versus
Munna
s/o Sh. Yaqoob
r/o H. No. 23,
Gali no. 12, Sanjay Nagar,
Mahendra Park, Delhi33
Date of Institution: 22092011
Date of arguments: 19112014
Date of judgement: 28112014
JUDGMENT
1. The case of the Prosecution, in brief, is that on 24062011 at about 6:45 am, I/C R28 QRT ASI Om Prakash informed through telephone that one person named Chotu r/o Gali no. 12, Sanjay Nagar was stabbed by Munna with chhura and he FIR No. 145/11; State Vs. Munna Page 1 of 48 was caught with the chhura. DD no. 12A was recorded in PS Mahendra Park. ACP Shalimar Bagh SI Kanhaiya Lal reached at the spot at Gali no. 2, Sanjay Nagar, where SI Satyavir Singh along with Ct. Kannu and Ct. Sunil met him in front of H. No. A99. On inquiry, it was revealed that ASI Om Prakash, I/C QRT had taken the accused and injured to BJRM hospital. SI Kanhaiya Lal left SI Satyabir, Ct. Kannu at the spot and he along with Ct. Sunil reached BJRM hospital where Chotu was found admitted in OT vide MLC no. 27553/11. They came to know that ASI Om Prakash, Ct. Kuldeep along with accused Munna had reached PS Mahendra Park where ASI Om Parkash gave his statement that he was posted in PS Mahendra Park as ASI on the night of 23/24062011 from 10 pm to 10 am. At about 6:30 am he along with gunman Kuldeep and private driver Lalit Kumar reached Gali no. 12 in QRT Gypsy no. DL3CZ9319 and he saw one boy running in underwear and drenched in blood from gali no. 2 and screaming "bachaobachao". That boy was followed by a heavily built person wearing pantsshirt and having chapad in his right hand and saying "aaj tujhe jinda nahin chodunga, tune mera kafi nuksan kar diya hai. Tere karan mere sare aam sar gaye hai". ASI Om Prakash and Ct. Kuldeep got down from the gypsy and chased that person. The injured turned in FIR No. 145/11; State Vs. Munna Page 2 of 48 the gali and that healthy man also chased him in the gali and they entered in a house where that person gave a blow on the neck of injured with the chapad. ASI Om Prakash with the help of constable overpowered that person and brought him near the Gypsy. The injured also reached there trembling and drenched in blood. They made the injured lie in the Gypsy whose name came to know as Chotu s/o Hasmat. The name of the attacker/ culprit came to know as Munna. Thereafter, ASI Om Prakash informed about the incident at PS. After that, ASI Om Prakash and Ct. Kuldeep took the accused Munna along with chapad and injured to BJRM Hospital and got admitted the injured. Accused Munna along with chapad was brought to PS. The Chapad/ knife was taken into police possession with the seal of KLM and its sketch was prepared. On measurements, its total length was 40.2 cms; length of blade was 27 cms; handle was 13.2 cms and there were three rivets on the handle of wood of handle.
2. It is further the case of prosecution that FIR u/s 307 IPC and 27/54/59 of Arms Act was registered and investigation was handed over to SI Kanhaiya Lal. During investigation, site plan was prepared, the spot was photographed and exhibits were taken into police possession. Statements of witnesses were also recorded. FIR No. 145/11; State Vs. Munna Page 3 of 48 Accused was arrested. The blood stained clothes i.e. pants and shirt of accused were taken in possession which he was wearing at the time of incident and the blood stained knife/chapad were taken into police possession. On 24.06.2011 at 03.52 pm Duty Constable Aadesh from Trauma Centre informed that Chotu who was referred in Casualty from BJRM Hospital was declared 'dead' by the doctor regarding which DD no. 59B was recorded at PS Mahendra Park. Thereafter, IO added Section 302 IPC in the case. IO got conducted the postmortem on the dead body of Chotu on 25.06.2011 at Mortuary, BJRM Hospital and the dead body was handed over to the relatives of the deceased. The blood sample taken by Autopsy Surgeon and sample seal were taken into police possession. Exhibits were sent to FSL. Scale site plan was prepared. After completion of investigation, chargesheet was filed against the accused Munna u/s 307/302 IPC and 25/27/54/59 of Arms Act.
3. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 302 IPC and 25/27/54/59 Arms Act was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution examined 24 witnesses. PW1 Mohd. Ahmed, in his testimony, exhibited his FIR No. 145/11; State Vs. Munna Page 4 of 48 statement regarding identification of dead body of Chotu as Ex.PW1/A and dead body handing over memo as Ex.PW1/B. PW2 Rehmat Ali in his testimony, exhibited his statement regarding identification of dead body of his brother Chotu as Ex.PW2/A. PW3 HC Raghunath in his testimony, exhibited the entries of register No. 19 i.e. 391/11 as Ex.PW3/A, 392/1 as Ex.PW3/B. PW3 also exhibited the photocopy of the RC No.59/21 as Ex.PW3/C. PW4 HC Jagbir Singh, in his testimony did not exhibit any document. PW5 retired ASI Charan Singh, in his testimony, exhibited DD no. 12A as Ex.PW5/A. PW6 Ct. Adesh Kumar, in his testimony, did not exhibit any document. PW7 Dr. Gopal Krishna, in his testimony, exhibited the MLC No. 27553 of patient Chotu as Ex.PW7/A. PW8 SI Matadin, in his testimony, exhibited his detailed report regarding photography of the spot as Ex.PW8/A. PW9 SI Satyavir Singh, in his testimony, exhibited the attested copy of DD no. 12A as Ex.PW9/A, seizure memo of pair of black colour raxine sleepers having blood stains as Ex.PW9/A, the seizure memo regarding blood lying in front of house No. 14 which was lifted after breaking the cemented road from the spot and earth control as Ex. PW9/B. PW9 identified the blood stained cemented plaster as Ex.P1, the FIR No. 145/11; State Vs. Munna Page 5 of 48 cemented plaster (earth control) as Ex.P2, cotton wools swab with blood stained as Ex.P3, cardboard pieces having brown stains as Ex.P4, pair of chappals as Ex.P5 (colly.), blood stained cemented road lifted from the spot as Ex.P6, cemented road (earth control) as Ex.P7, blood stained cemented road as Ex.P8 and cemented road (earth control) which was lifted from the spot as Ex.P9. PW10 Ct. Devender Sharma, in his testimony, exhibited the seizure memo of sample seal and blood samples as Ex.PW10/A. PW11 ASI Om Prakash, in his testimony exhibited his statement as Ex.PW11/A, sketch of Chapad (big knife) as Ex.PW11/B, seizure memo of Chapad (big knife) as Ex.PW11/C, seizure memo of clothes of accused which were worn by accused at the time of incident as Ex.PW11/D, arrest and personal search memo of accused as Ex.PW11/E and Ex.PW11/F respectively. PW11 identified the Chapad as Ex.P1, pants as Ex.P2 and shirt as Ex.P3 of accused. PW12 Ct. Adesh, in his testimony, exhibited the copy of DD no. 59B as Ex.PW12/A. PW13 Ct. Parvinder, in his testimony, exhibited the 27 photographs of the spot as Ex.PW13/A1 to Ex.PW13/A27 and the CD as Ex.PW13/B. PW14 SI Manohar Lal, in his testimony, exhibited the the scaled site plan as Ex.PW14/A. PW15 Ct. Kannu, FIR No. 145/11; State Vs. Munna Page 6 of 48 in his testimony did not exhibit any document but identified the case property from Ex.P1 to Ex.P9. PW16 Dr. Shipra Rampal, Radiologist, BJRM Hospital, in her testimony exhibited XRay report of injured Chotu as Ex.PW16/A. PW17 SI Adesh Kumar, in his testimony exhibited the computerised copy of FIR as Ex.PW17/A, his endorsement on the rukka as Ex.PW17/B. PW18 Dr. Dheeraj Kumar, Casualty Medical Officer, Sushrut Trauma Centre, Civil Lines, Delhi, in his testimony exhibited the death summary of deceased as Ex.PW18/A. PW19 Ct. Kuldeep, in his testimony identified the chapad (big knife) as Ex.P1 and blood stained pants of chocolate colour and shirt of cream colour of accused as Ex.P2 and Ex.P3 respectively. PW20 Dr. V.K. Jha, Medical Officer, BJRM Hospital in his testimony exhibited the detailed post mortem report of deceased Chotu as Ex.PW20/A. PW21 Sh. Rajesh Kumar, Record Clerk, Sushruta Trauma Centre, Civil Lines, Delhi in his testimony exhibited the death certificate of Chotu as Ex.PW21/A and the admission summary and treatment record as Ex.PW21/B. PW22 Dr. Vishal, Residents, Fortis Hospital, in his testimony did not exhibit any document. PW23 SI Kanhaiya Lal, in his testimony exhibited the rukka as Ex.PW23/A, site plan as Ex.PW23/B and identified FIR No. 145/11; State Vs. Munna Page 7 of 48 chapad as Ex.P1. PW23 also identified cemented plaster as Ex.P2, earth control sample as Ex.P3, blood sample taken from wooden balli as Ex.P4, one brown coloured gatta with blood sample as Ex.P5, a pair of black coloured slippers (chappals) as Ex.P6, blood sample collected after breaking the road in front of house no. 1415, Gali No. 11, Sanjay Nagar as Ex.P7, earth control collected from the Gali No. 11, in front of house no. 15 as Ex.P8, earth control collected from gali no. 11, in front of house no. 14 as Ex.P9, clothes i.e. blood stained pants and shirt as Ex.P10, blood gauze as Ex.P11, sample seal of hospital authorities as Ex.P12 and photographs of the spot taken by the crime team as Ex.PW13/A1 to A26. PW24 Inspector Jawahar Singh, in his testimony exhibited the inquest papers as Ex.PW24/A.
5. Statement of the accused was recorded u/s 313 Cr.P.C. therein he denied all the allegations made against him. The accused opted to lead defence evidence and examined Wasim as DW1.
6. I have heard Ld. counsel for the accused and the Ld. Addl. PP for State and have perused the written submissions filed by the Ld. counsel for the accused and entire records.
7. The Ld. Counsel for the accused argued that as per prosecution case, PW11 and PW19 are the eyewitnesses but they FIR No. 145/11; State Vs. Munna Page 8 of 48 have not corroborated and given divergent versions. As per PW11, at about 6:30 am when they were on patrolling, they saw the accused while attacking the victim with the chapad. PW3/ MHCM stated that chapad (chhura) was deposited in Malkhana at 10:22 pm. There is a delay and contemplation in deposit of chapad in the Malkhana. No blood was detected on the weapon of offence (chapad) as per FSL report. A99 was the residence of deceased but PW11 and PW19 never visited to the said house. No blood or earth control was lifted from the house. As per PW15, he did not see trail of blood. FSL report does not give conclusive finding. The weapon of offence has been planted in this case. PW13/ photographer stated that he along with Incharge and Ct. Ramkishan/ Finger Print Proficient went to A99, Gali no. 2, Sanjay Nagar but there is no opinion of finger print proficient. As per prosecution, the victim was seen running in underwear. Pants and shirt were hanging at the place and same were not found, therefore, they are also planted. DD entries have not been recorded and kept pending. During crossexamination, PW17 stated that incident was reported at 6:30 am but there was deliberation in the PS which is hit by section 162 Cr.P.C. PW11, PW19 and PW23 have deposed falsely. The versions of PW6 and PW12 cannot be relied upon and FIR No. 145/11; State Vs. Munna Page 9 of 48 there has to be corroboration. PW7/ doctor identified signatures of another doctor and they have deliberately not made any effort to find out the doctor. In the entire prosecution case, victim did not name accused Munna to assault him. The injured/ victim was conscious to tell everything. There are two site plans i.e. one rough site plan Ex. PW23/B and another scaled site plan Ex. PW14/A. There are lot of variations between the said two site plans. QRT persons were shown in the rough site plan but not in the scaled site plan. PW11 admittedly never went to the spot. Rough notes should have been part of the chargesheet. The scaled site plan was prepared at the direction of Inspector Jawahar Singh and SI Kanhaiya Lal. There were no blood when the weapon of offence was seized.
8. The Ld. counsel for the accused further argued that during crossexamination, PW9 stated that no inquiry was made from the nearby residents of the locality. Lalit Kumar is not witness in this case. PW11 completely lied since SI Kanhaiya Lal was not in the PS. It is unbelievable that seal after use was given to PW11 and not to any independent witness. Therefore, tampering with the case property in such a scenario cannot be ruled out. The time has been mentioned wrongly. PW9 stated that distance between gali no. 2 and 11 was about 15 yards whereas PW11 stated differently. PW9 FIR No. 145/11; State Vs. Munna Page 10 of 48 also stated that he had not seen trail of blood leading from H. No. A99, Gali no. 2 to A23, Gali no. 12. ASI Om Prakash never gone after accused Munna. Examination of PW9 and PW11 are stereotype and concocted deposition. It is not clear as to who produced the chapad. The deposition of PW15 is on the same lines as of PW9. The site plan was not prepared at the instance of eyewitnesses. In the testimony of PW20/ doctor, no injury was given on the vital part of deceased. There was no transfusion of blood. There was delay in treatment. There is no extrajudicial confessional statement of the accused on record. PW23 only came to know that injured Chotu and accused Munna were taken to hospital by ASI Om Prakash through QRT vehicle and from the hospital he came to know that ASI Om Prakash along with accused Munna and Ct. Kuldeep had left for PS along with weapon of offence. The statement of PW23 that injured Chotu was in ICU in BJRM hospital is a false statement. In support of his arguments, Ld. Counsel for accused relied upon the judgements reported in the cases of S.K. Yusuf Vs. State of West Bengal, 2011 (4) CC Cases (SC) 37; Latoori Lal Vs. The State, 24 (1983) DLT 241; Kali Ram Vs. State of Himachal Pradesh, (1973) 2 Supreme Court Cases 808.
9. Whereas, Ld. APP for State argued that it is a case of FIR No. 145/11; State Vs. Munna Page 11 of 48 direct evidence. While on patrolling duty, PW11 and PW19 saw accused Munna causing injuries to Chotu (since deceased) with a chapad. PW11 and PW19 have supported the case of the prosecution. The postmortem report has also been proved by the doctor. The accused was apprehended at the spot by the eyewitnesses and chapad was recovered from his hands. The prosecution has proved its case beyond reasonable doubt that it was the accused who committed murder of Chotu in this case. The Ld. APP for State further argued that there are some minor contradictions in the testimony of the PWs yet they do not go to the root or core of this case. The Ld. APP for the State also argued that independent public persons generally do not become witnesses to the criminal proceedings / investigations. Further, the accused cannot take benefit of defective/ faulty investigation, if any. The Ld. APP for the State, in support of his arguments, relied upon the judgments reported in the cases of Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1) and State of UP Vs. Krishna Master & Ors., 2010 CRI. L.J. 3889.
10. In view of the above arguments of the Ld. counsel for the FIR No. 145/11; State Vs. Munna Page 12 of 48 accused and Ld. APP for the State, let us discuss the evidence led in this case whether the accused has been falsely implicated or he committed the offence as charged. PW11 ASI Om Prakash, in his examination in chief stated that in the intervening night of 23/24.06.2011, he was posted at PS Mahendra Park as ASI and on duty from 10.00 pm to 10.00 am. On that day at about 06.30 am, he along with Gunman Ct. Kuldeep was patrolling in a private gypsy no. DL3CZ9319, driven by private driver Lalit Kumar and during patrolling, they reached at Sanjay Nagar Main Market, Gali No. 12, when they saw one boy, smeared with blood running in underwear, while shouting, 'bachaobachao'. That boy was being chasing by a tall and healthy man, who was having bloodstained Chapad (big knife) and he was saying, "Aaj main tujhe zinda nahin chodunga. Tune mera kaafi nuksaan kar diya hai. Tere kaaran mere sare Aam sad gaye hai". On seeing this, PW11 and Ct. Kuldeep immediately got down from their vehicle and started chasing the said tall and healthy man. That person while chasing the injured, entered in a house in gali. PW11 further stated that they also chased them and reached into the Beda (courtyard) of said house. As they entered in the courtyard, they saw that the assailant (Badmash) made a blow of Chapad on the neck of the injured. PW11 challenged the assailant FIR No. 145/11; State Vs. Munna Page 13 of 48 and overpowered him with the help of Ct. Kuldeep and took him near the gypsy along with the bloodstained Chapad. In the meantime, the said injured via Gali No. 11, came near to the Gypsy, while trembling. PW11 immediately made the injured lie inside the Gypsy and on inquiry, he told his name as Chotu. On inquiry, the assailant told his name as Munna (correctly identified). PW11 immediately telephoned at PS regarding the incident. PW11 gave accused Munna along with Chapad in the custody of Ct. Kuldeep and took the injured as well as accused to BJRM Hospital in the Gypsy. PW11 got admitted the injured in BJRM Hospital with the help of hospital staff. Thereafter, PW11 took the accused Munna along with Chapad to PS Mahendra Park and produced him before SI Kanhaiya Lal, along with Chapad. IO recorded statement of PW11 vide Ex. PW11/A. PW11 also stated that the accused with the intention to kill the injured, attacked on him with Chapad. IO SI Kanhaiya Lal prepared sketch of the Chapad Ex. PW11/B and measured the same. IO prepared the pullanda of the knife and seized the same vide memo Ex. PW11/C. The clothes of the accused, which he was wearing at the time of incident i.e. one half sleeve cream colour shirt and one chocolate colour pants, having blood stains, were sealed with the seal of KLM and seized vide memo Ex. PW11/D. IO arrested and FIR No. 145/11; State Vs. Munna Page 14 of 48 personally searched the accused vide memos Ex. PW11/E and PW11/F. PW11 identified the chapad as Ex. P1 which was used by the accused; one shirt upon the collar of which there was a red colour label bearing the particulars "New KK Tailors, A12, Delhi33"
affixed as Ex. P3; and pants as Ex. P2 which were taken off from the accused.
11. During crossexamination by Ld. defence counsel PW11 stated that he knows each and everything of this case. The name of the driver of private gypsy in which they were patrolling was also mentioned in their departure entry. The private gypsy was hired by their department. They had seen the accused while chasing the deceased from their patrolling gypsy at the distance of 5 to 7 steps. PW11 had seen the accused Munna while chasing the injured. The accused was having chopper (chapad) in his right hand while chasing the injured. Accused Munna was overpowered by PW11 with the help of Ct. Kuldeep. The clothes of the accused were also blood stained. They had overpowered the accused after chasing 25 to 30 yards from where they had seen him for the first time. Prior to the present incident, PW11 was not known to accused Munna as well as deceased Chotu. Chotu was brought to their gypsy on foot. At that time injured was conscious and he told his name, parentage FIR No. 145/11; State Vs. Munna Page 15 of 48 and address. PW11 informed the duty officer of the PS Mahendra Park regarding the incident through his own mobile phone at about 6.45 AM. Injured was only wearing the underwear and his body as well as underwear was blood stained. PW11 stated that fresh blood was oozing from his wounds when he was lying in their gypsy. He further stated that seat cover as well as floor of the gypsy was also blood stained. The injured Chottu was taken to hospital by them in the private gypsy and he was got admitted there by PW11. At that time he was speaking. The chopper was snatched by PW11 from the accused where he was overpowered and was kept in their gypsy and subsequently PW11 handed over the same to the IO. Knife was kept in a white colour cloth and sealed. Accused was arrested in this case as he was apprehended by them in between 6.30 A.M. to 6.45 AM. The accused was apprehended inside the angan (courtyard) of the house. After apprehension, they immediately took the accused out of the house. PW11 denied the suggestion that injured came to the house of accused to save himself but subsequently the accused was falsely implicated in this case.
12. PW19 Ct. Kuldeep accompanied PW11 during patrolling and he also deposed more or less on the similar lines in his examination in chief as deposed by PW11. However, during cross FIR No. 145/11; State Vs. Munna Page 16 of 48 examination by Ld. defence counsel, PW19 stated that Duty Officer had recorded his departure entry when he left Police Station. PW19 denied that no departure entry was made. PW19 further denied that he was not present on duty on 23/24.06.2011. He volunteered that DD No. 68B dated 23.06.2011 Ex. PW19/DA of PS Mahindra Park was proof of the fact that he was on duty on 23/24.06.2011. The private gypsy was moving when they saw the incident. They saw the assailant and victim who were easily visible when they saw them, but PW19 could not tell the distance between them and the assailant and victim. Firstly, they chased the assailant and the victim by their gypsy. They stopped the gypsy in the main gali. The time took to cover the distance from the main gali to the house, was one minute. The lane or the gali where the said house was located, was such narrow that gypsy could not pass through said gali. The private driver Lalit Kumar remained in the gypsy and did not chase the assailant along with them. They both entered in the said house at the same time. PW19 volunteered that there might be hardly difference of one second. They remained in that house for about five minutes. PW19 stated that he first snatched the chapad from the accused and then he handed over the same to the IO.
13. PW19 further stated in his crossexamination that they FIR No. 145/11; State Vs. Munna Page 17 of 48 came out from the house from the same door from which they had entered. PW19 denied the suggestion that victim while being chased by the accused, could not run because of the injuries. He volunteered that injured was having some injuries while he was running and some injuries were caused to him in the house. PW19 denied that no injury was caused to the injured in the house in his presence. PW19 denied that he did not see the injured in the said house or that blow given on his neck by chapad by the accused. PW19 was armed with a rifle with cartridges at the relevant time. He did not use the rifle at that time as he was trying to apprehend the accused. PW19 stated that the sketch of the chapad was prepared by the IO in his presence vide sketch Ex. PW11/B. The sketch was made by the IO after keeping chapad on a paper. PW19 stated that there were blood marks on Ex. PW11/B. PW19 denied that no such chapad was recovered from the accused and the same has been planted by the IO by purchasing the same from the market to falsely implicate the accused in the present case. PW19 denied that the accused was not chasing the injured and was already present in his house or that it was some other assailant who was tall and strong built who fled away after causing injuries on the victim. PW19 further denied that the victim left from other entrance when they FIR No. 145/11; State Vs. Munna Page 18 of 48 entered in the said house. PW19 denied that IO did not prepare sketch in his presence and therefore, he did not remember as to how he measured the chapad or that the IO took his signatures forcibly as he was junior to the IO.
14. PW1 Mohd. Ahmed stated in his examination in chief that deceased Chotu was brother of his brother in law (jija) namely Rehmat Ali. PW1 stated that accused Munna was known to him. Deceased Chotu was residing at A99, Gali no. 2, Sanjay Nagar, Delhi in an underconstruction house. On coming to know about the death of Chotu, he went to hospital and identified his dead body vide statement Ex. PW1/A. After postmortem, the dead body was handed over to him vide memo Ex. PW1/B. PW2 Rehmat Ali stated in his examination in chief that deceased Chotu was his younger brother. Deceased Chotu was dealing in fruits at Azadpur Mandi and was residing at A99, Gali no. 2, Sanjay Nagar, Delhi in an underconstruction house. On coming to know about the death of his brother Chotu, he identified his dead body in the hospital on 25062011 vide statement Ex. PW2/A and after postmortem, the dead body was received vide memo Ex. PW1/B. PW2 identified accused Munna in the court correctly. He stated that he came to know that he committed murder of Chotu. Accused Munna was FIR No. 145/11; State Vs. Munna Page 19 of 48 residing at A23, Gali no. 12, Sanjay Nagar, Delhi. PW3 HC Raghunath, MHCM proved the entry no. 391, 392 of register no. 19 vide Ex. PW3/A and PW3/B; RC no. 59/21 Ex. PW3/C. He also made entry at point X and Y on Ex. PW3/A. PW4 HC Jagbir Singh stated in his examination in chief that on 18082011, he collected the exhibits from MHCM and deposited at FSL vide RC no. 59/21 and receipt was handed over to MHCM.
15. PW5 Retd. ASI Charan Singh stated in his examination in chief that on 24062011, he was working as DO at PS Mahendra Park and he recorded DD no. 12 Ex. PW5/A. PW6 Ct. Adesh Kumar stated in his examination in chief that on 24062011, he was posted as Duty Ct. at Trauma Centre, Civil Lines and at about 3:50 pm, one injured Chotu was admitted who was referred from BJRM hospital. Injured Chotu was declared dead by the doctor. PW6 conveyed the intimation to DO at PS Mahendra Park. PW7 Dr. Gopal Krishna, MO, BJRM hospital stated in his examination in chief that on 24062011, he was CMO duty. On that day, injured Chotu was brought to hospital by ASI Om Prakash at around 8 am and MLC no. 27553 Ex. PW7/A of Chotu was prepared by Dr. Shabbir on his instruction and supervision. PW7 identified signature FIR No. 145/11; State Vs. Munna Page 20 of 48 of Dr. Shabbir on the MLC. PW8 SI Matadin stated in his examination in chief that on 24062011, he was posted as In charge, Mobile Crime Team and on receipt of call from PCR, he along with photographer Ct. Parvinder reached H. No. A99, Gali no. 2, Sanjay Nagar, Mahendra Park. IO SI Kanhaiya Lal along with staff met them and PW8 inspected the scene of crime. PW8 stated that blood was found dropped there in the street and also on the wall of H. No. A99. The spot was photographed by Ct. Parvinder. PW8 prepared his detailed report Ex. PW8/A. PW8 in his cross examination denied that he never visited the scene of crime or that he prepared his report while sitting in the PS at the instance of the IO.
16. PW9 SI Satyavir Singh stated in his examination in chief that on 24062011 at about 6:45 am, on receipt of DD no. 12A Ex. PW9/A regarding stabbing of one Chotu with knife by one Munna and apprehension of Munna at the spot with knife, he along with Ct. Sunil and Ct. Kannu reached the spot. After reaching the spot, he received an information from ACP Shalimar Bagh that they had to protect the site of occurrence. After some time, SI Kanhaiya Lal reached at the spot at about 08.45 am. SI Kanhaiya Lal made an inquiry at the spot and they came to know that injured Chotu was FIR No. 145/11; State Vs. Munna Page 21 of 48 already removed to BJRM Hospital along with accused Munna. PW9 along with Ct. Sunil More and Ct. Kannu remained at the spot. Thereafter, IO SI Kanhiya Lal went to BJRM Hospital. At about 01.00 pm, SI Kanhaiya Lal came back at the spot. Crime Team inspected the spot. Photographer took the photographs of the spot from different angles. Thereafter, IO recorded their statements and relieved them from the investigation. At the spot, IO SI Kanhaiya Lal lifted the exhibits i.e. blood was lifted from the wall of under construction room at A99, Gali No. 2, Sanjay Nagar, Mahendra Enclave. The blood was kept in a plastic box and sealed with the seal of KLM. From the same wall, earth control was lifted and kept in a plastic box and sealed with the seal of KLM. IO also lifted the blood with the help of cotton from wooden balli and kept in a small box and sealed with the seal of KLM. IO also lifted the carton having blood stain and kept in a plastic polythene and sealed with the seal of KLM. The pair of black colour raxine sleepers having blood stains was also kept in a plastic polythene and sealed with the seal of KLM and all these articles were taken into possession vide seizure memo Ex. PW9/A. The blood was also lying in front of house No. 15, Gali No. 11 and same was also lifted after breaking the cemented road and kept in a small plastic polythene and sealed with the seal of FIR No. 145/11; State Vs. Munna Page 22 of 48 KLM. Earth control was also lifted after breaking the cemented road and kept in a small plastic polythene and sealed with the seal of KLM. The blood was also lying in front of house No. 14 and IO also lifted the same after breaking the cemented road from the spot and kept in a plastic polythene and earth control was also lifted and sealed with the seal of KLM and all these articles were taken into possession vide seizure memo Ex. PW9/B. PW9 also identified the blood stained cemented plaster of wall Ex. P1; cemented plaster (earth control) of wall as Ex. P2; cotton wools swab with blood stained as Ex. P3; cardboard pieces having brown stains Ex. P4; pair of chappals Ex.P5; blood stained cemented road Ex. P6; cemented road (earth control) as Ex. P7; blood stained cemented road Ex. P8; cemented road (earth control) Ex. P9.
17. During crossexamination by Ld. Defence counsel, PW9 stated that he was present within the campus of the PS at the time of receiving the information about the incident of this case. PW9 did not make any departure entry personally. However, he left the PS as per the DD no. 12A. PW9 made the inquiry there at the spot from the passersby. PW9 was informed the name of Munna and injured Chotu. Injured Chotu was removed to hospital by the gypsy of police. PW9 stated that his statement was recorded by the IO at the spot FIR No. 145/11; State Vs. Munna Page 23 of 48 itself on the same day. IO recorded his statement whatever he had stated to him.
18. PW10 Ct. Devender Sharma stated in his examination in chief that on 25062011, he was on emergency duty and he accompanied SI Kanhaiya Lal to Trauma Centre and from there they received dead body of Chotu and brought the same to BJRM hospital for postmortem. After postmortem, PM report no. 579/11 and blood samples in sealed condition along with one sample seal of FMT BJRM hospital were handed over to SI Kanhaiya Lal by the doctor. The dead body was handed over to the relatives and sample seal and blood samples were produced before SHO which were seized vide seizure memo Ex. PW10/A. PW12 Ct. Adesh stated in his examination in chief that on 24062011, he was on duty at Sushruta Trauma Centre, Civil Lines and at about 8:52 am, he informed at PS Mahendra Park regarding death of one Chotu and the information was recorded vide DD no. 59B Ex. PW12/A.
19. PW13 Ct. Parvinder stated in his examination in chief that on 24062011, he was posted as photographer in Mobile Crime Team, NW and he along with SI M.D. Meena and Ct. Ramkishan, Finger Print Proficient went to A99, Gali no. 2, Sanjay Nagar. SI Kanhaiya Lal along with other police staff met them at the spot. At FIR No. 145/11; State Vs. Munna Page 24 of 48 the directions of SI Kanhaiya Lal, PW13 took 27 photographs Ex. PW13/A1 to A27 and after developing the photographs and CD Ex. PW13/B he handed over the same to IO. PW13 in his cross examination denied that he never visited the spot. PW14 SI Manohar Lal stated in his examination in chief that on 03092011, he along with SI Kanhaiya Lal and Inspector Jawahar Singh reached at the spot i.e. H. No. A99 (under construction house), Gali no. 2 & H. No. A23 of Gali no. 12, Sanjay Nagar i.e. place of incident where on the instance of SI Kanhaiya Lal and Inspector Jawahar Singh, he took rough notes and on 04092011, he prepared scaled site plan Ex. PW14/A and handed over to IO. After preparation of scaled site plan, he destroyed the rough notes and measurements. During crossexamination, PW14 stated that he had reflected about the points F & G mentioned in the site plan Ex. PW14/A where the blood was lying.
20. PW15 Ct. Kannu stated in his examination in chief that on 24.06.2011 at about 06.45 am, on receipt of DD no. 12A, he along with SI Satyavir Singh and Ct. Sunil reached at the spot i.e. in the gali No. 2, house No. A99, Sanjay Nagar, Mahendra Park, Delhi. In the meanwhile, SI Satyavir Singh received an information from ACP Shalimar Bagh that they had to protect the site of FIR No. 145/11; State Vs. Munna Page 25 of 48 occurrence. After some time, SI Kanhaiya Lal reached at the spot at about 08.45 am and made inquiry at the spot and they came to know that injured Chotu was already removed to BJRM Hospital along with accused Munna. PW15 along with Ct. Sunil More and SI Satyavir remained at the spot. Thereafter, IO SI Kanhiya Lal went to BJRM Hospital. At about 01.00 pm, SI Kanhaiya Lal came back at the spot. Crime Team inspected the spot and photographer took the photographs of the spot. At the spot, IO SI Kanhaiya Lal lifted the exhibits i.e. blood from the wall of underconstruction room at A99, Gali No. 2, Sanjay Nagar, Mahendra Enclave. The blood was kept in a plastic box and sealed with the seal of KLM. From the same wall, earth control was lifted and kept in a plastic box and sealed with the seal of KLM. IO also lifted the blood with the help of cotton from wooden balli and kept in a small box and sealed with the seal of KLM. IO also lifted the carton having a blood stain and kept in a plastic polythene and sealed with the seal of KLM. The pair of black colour raxine sleepers having blood stains was also kept in a plastic polythene and sealed with the seal of KLM and all these articles were taken into possession vide seizure memo Ex. PW9/A. The blood was also lying in front of house No. 15, Gali No. 11 and same was also lifted after breaking the cemented road and kept in a small FIR No. 145/11; State Vs. Munna Page 26 of 48 plastic polythene and sealed with the seal of KLM. At the same point, earth control was also lifted after breaking the cemented road and kept in a small plastic polythene and sealed with the seal of KLM. The blood was also lying in front of house No. 14 and IO also lifted the same after breaking the cemented road from the spot and kept in a plastic polythene and earth control was also lifted and sealed with the seal of KLM and all these articles were taken into possession vide seizure memo Ex. PW9/B. PW15 also identified the exhibits i.e. Ex. P1 to P9 in the court.
21. During crossexamination by Ld. Defence counsel, PW15 stated that they reached at the spot at about 07.00 am on the day of incident. On that day, PW15 remained with SI Satbir Singh from 07.00 am till 02.00 / 02.30 pm. They did not go to the house of Munna at that time. PW15 denied that he only remained in front of house No. A99 from 07.00 am to 02.00 / 02.30 pm. He volunteered that he was going and coming in the street during that time. PW15 denied that no public person disclosed the name of accused Munna at the spot or that the name of accused Munna was told to him by SI Satyavir Singh only.
22. PW16 Dr. Shipra Rampal, Radiologist, BJRM Hospital, Delhi stated in her examination in chief that on 25.06.2014, she FIR No. 145/11; State Vs. Munna Page 27 of 48 examined the XRay plates of injured Chotu and found fracture of fifth metacarpal and proximal phalanx of index finger of the left hand with dislocation at metacarpophalalgeal joint of index finger. She proved her report in this regard vide Ex. PW16/A. PW17 SI Adesh Kumar stated in his examination in chief that on 24.06.2011, he was posted at PS Mahindra Park as ASI and working as duty officer from 8:00 am to 4:00 pm. At about 12:45 pm, SI Kanhaiya Lal arrived at the DO Room and handed over a rukka/tehrir to him on the basis of which he got the present FIR recorded through computer operator vide Ex. PW17/A and made his endorsement on the original rukka/tehrir vide Ex. PW17/B. On that day at about 8:52 am, PW17 also received an information through telephone from duty Ct. Adesh of Trauma Centre Civil Lines regarding the death of Chotu s/o Sh. Asmat and accordingly, he lodged DD No. 15B Ex. PW12/A.
23. PW18 Dr. Dheeraj Kumar, Casualty Medical Officer, Sushruta Trauma Centre was deputed by DMS/HOD to depose on behalf of Dr. Amit Gupta, the then Sr. Resident (General Surgery) and he stated that deceased Chotu was admitted in the aforesaid hospital on 24.06.2011 at about 11:15 am, who was referred from BJRM Hospital, Delhi, and he expired on the same day at about 2:15 pm. He proved the original death summary of deceased vide Ex. FIR No. 145/11; State Vs. Munna Page 28 of 48 PW18/A bearing signatures of Dr. Amit Gupta at point X. PW20 Dr. V.K. Jha, Medical Officer, BJRM Hospital stated in his examination in chief that on 25.06.2011, he conducted postmartem on the dead body of one Chotu s/o Sh. Hasmat Singh, aged about 25 years. The deceased had the alleged history of stabbing and died as per brief facts of the present case.
General Description : The deadbody was naked and wrapped in hospital's clothes. It was of moderate built and rigormortis was present on all parts of the body. The postmartem staining was present at back, eyes were closed and cornea was hazy, mouth was closed and tongue was inside. PW20 observed following external injuries on the dead body of the deceased:
1. Sutured wound on right face, 7cm in length, 2.5 cm lateral to nasal alae.
2. Sutured wound on right side of face, 1 cm lateral to right nasal alae, 15 cm in length.
3. Sutured wound on lower lip.
4. Sutured wound on right side of neck, 12 cm in length extending from right mastoid region to 6 cm below right ear lobule.
5. Sutured wound in front of chest on collar bone area, 5 cm in length.
6. Incised wound on right top of shoulder, 12 cm x 7 cm x muscle deep.
7. Incised wound on midforearm right side, 4 cm x 1.5 cm x muscle deep.
FIR No. 145/11; State Vs. Munna Page 29 of 48
8. Incised wound of size 6 cm x 2 cm x muscle deep, 7 cm above left wrist joint.
9. Incised wound of size 4 cm x 0.5 cm x muscle deep on left dorsum of hand.
10. Incised wound on left iliacfossae, 7 cm x 1.5 cm x muscle deep.
11. Incised wound in the web space between ring and middle finger.
It has cut tendons deep upto palmar surface of 8.5 cm and 2 cm.
12. Incised wound on deep of proximal phalanges on left index finger.
13. Incised wound on left hand exposing muscles and bones on index finger and ring finger.
On internal examination brain matter was pale. Contents of the abdomen 50 ml of digested fluid. After postmartem examination, PW20 opined cause of death as hemorrhagic shock as a result of stab wound inflicted by other party. All injuries were ante - mortem in nature. Time of death was approximately same as time of hospital death i.e. 2:15 pm on 24.06.2011. PW20 preserved blood gauze piece and sealed with the seal of mortuary and handed over the same to the IO. PW20 proved the postmartem report vide Ex. PW20/A. During crossexamination by Ld. defence counsel, PW20 was questioned that whether IO produced weapon of offence before him for the purpose of having been the injuries inflicted by the said FIR No. 145/11; State Vs. Munna Page 30 of 48 weapon, he replied that no subsequent opinion regarding weapon of offence was taken and IO did not produce any weapon before him regarding this case.
24. PW21 Sh. Rajesh Kumar, Medical Record Clerk, Sushruta Trauma Centre brought the summoned record i.e. entire medical record pertaining to patient Chotu. He stated that death summary and death certificate were placed on the record vide Ex. PW18/A and PW21/A respectively. He also proved the admission summary and treatment record vide Ex. PW21/B (running upto 8 pages). PW22 Dr. Vishal, Resident, Fortis Hospital, Noida stated in his examination in chief that on 24.06.2011, he was posted at Sushruta Trauma Centre as a Junior Residents and received the injured Chotu s/o Sh. Hasmat at 11:15 am. He signed the death summary of Chotu who died at 2:15 pm on 24.06.2011. The injured Chotu was received in the Causality of Trauma Centre who was referred from BJRM Hospital with MLC No. 27553, ER No. 59781. He was in known case of multiple stab injuries over abdomen, chest, face, neck and bilateral upper limb. PW22 stated that at that time, the injured Chotu was drowsy, his pulse rate was 140 per minute and blood pressure was 80/60 and he was on dopamine drip. His active resuscitation was done with I.V. fluid and blood requisition FIR No. 145/11; State Vs. Munna Page 31 of 48 sent. His RT insertion done, cathetrisation done and prepared for OT and his Hb was 3.9. PW22 stated that injured Chotu died on 24.06.2011 at 2:15 pm. The death certificate prepared by PW22 was already Ex. PW21/A bearing his signatures at point A. The death summary was in his handwriting already Ex. PW18/A bearing his signatures at point B. During crossexamination by Ld. defence counsel, PW22 stated that there was immediate requirement of blood transfusion to the injured Chotu and accordingly, he immediately sent blood requisition to the blood bank. PW22 was questioned whether he received the blood for blood transfusion to injured Chotu and he replied that injured Chotu was sent to OT for blood transfusion, so he did not know as to whether the blood was received or not. He did not go to OT as he had no role to perform there.
25. PW23 SI Kanhaiya Lal stated in his examination in chief that on 24.06.2011, he was posted at PS Mahendra Park, Delhi and he received DD No. 15A at 8:35 am and he went to house no. A99, Gali No. 2, Sanjay Nagar, Mahendra Park, Delhi where SI Satbir Singh, Ct. Kannu and Ct. Sunil Kumar were found present at the spot who were supervising the spot. At stop, PW23 came to know that the injured Chotu and accused Munna were taken to the FIR No. 145/11; State Vs. Munna Page 32 of 48 hospital situated at Jahangirpuri by ASI Om Prakash along with weapon of offence by QRT vehicle. PW23 left SI Satbir and Ct. Kannu at the spot for its supervision/protection and went to BJRM Hospital along with Ct. Sunil and found injured Chotu admitted in the Causality of the hospital and he was declared unfit for statement. PW23 came to know from the hospital that ASI Om Prakash along with accused Munna and Ct. Kuldeep had left for PS along with weapon of offence. He along with Ct. Sunil came to the PS, where ASI Om Prakash gave his statement while producing weapon of offence. PW23 seized the weapon of offence i.e. chapad vide seizure memo already Ex. PW11/C and prepared its sketch already Ex. PW11/B. PW23 recorded statement of ASI Om Prakash vide Ex. PW11/A. PW23 prepared rukka Ex. PW23/A and produced the rukka at PS before the Duty Officer at about 12:45 pm. PW23 left the accused Munna in the custody of Ct. Kuldeep and ASI Om Prakash in the PS and came back at the spot where he found SI Satbir Singh and Ct. Kannu supervising the spot. In the meantime, Mobile Crime Team also arrived at the spot. PW23 got the spot inspected from SI MD Meena and the entire spot was photographed from where the injured ran while shouting "bachao bachao". SI MD Meena handed over his report to PW23. Thereafter, PW23 recorded FIR No. 145/11; State Vs. Munna Page 33 of 48 the statements of the photographer and SI MD Meena. PW23 prepared the site plan Ex. PW23/B on the pointing of SI Satbir. PW23 collected the exhibits from H. no. A99, Gali No. 2, Sanjay Nagar, Mahendra Park, Delhi which were seized vide seizure memo Ex. PW9/B. PW23 also collected the exhibits from the place from where the accused and injured Chotu ran and the same was also seized vide seizure memo Ex. PW11/C. PW23 collected the sealed pullandas which were sealed with the seal of KLM. Thereafter, PW23 along with the case properties and the staff members came back to the PS and obtained the signatures of the witnesses on the seizure memo. In the PS, ASI Om Prakash and Ct. Kuldeep produced the accused before PW23. PW23 interrogated the accused. PW23 seized the blood stained shirt and pant of the accused vide seizure memo already Ex. PW11/D. PW23 arrested the accused vide arrest memo already Ex. PW11/E and took his personal search vide memo already Ex. PW11/F. Thereafter, PW23 recorded the statements of the witnesses. The information about the death of the injured Chotu was received in the PS vide DD No. 59B. Accordingly, PW23 amended the case diary from Section 307 IPC to 302 IPC in addition to other Sections 27/54/59 Arms Act. PW23 identified the accused in the court. PW23 collected the MLC of FIR No. 145/11; State Vs. Munna Page 34 of 48 injured Chotu also on 24.06.2011. On 25.06.2011, PW23 accompanied SHO for postmartem of the dead body of the deceased Chotu. PW23 collected the exhibits from the doctor concerned and handed over the same to the SHO, which were seized by him vide seizure memo already Ex. PW10/A. PW23 identified exhibits P1 to P9 and clothes i.e. blood stained pant and shirt as Ex. P10; blood gauze Ex. P11; sample seal of hospital authorities Ex. P12 and the photographs of the spot taken in his presence by the Crime Team as Ex. PW13/A1 to A26.
26. During crossexamination by Ld. defence counsel, PW23 denied the suggestion that his statement was not recorded by the subsequent IO. PW23 denied that his statement u/s 161 Cr.PC dated 25.06.2011 Ex. PW23/DA was not recorded by Inspector Jawahar Singh. PW23 came to know from SI Satbir Singh that the accused and injured had been taken to the hospital by ASI Om Prakash and Ct. Kuldeep. PW23 reached at BJRM Hospital from the spot at about 8:50 am-8:55 am on 24.06.2011 itself. In the BJRM Hospital, he had seen the injured Chotu and his MLC. PW23 denied that the statement of injured Chotu could have been recorded, but he deliberately did not record the same as the injured Chotu did not disclose that he was assaulted by accused Munna. FIR No. 145/11; State Vs. Munna Page 35 of 48 ASI Om Prakash handed over to him that chapad. PW23 had prepared sketch of the knife by keeping it on a paper. PW23 further denied that he was not present in the PS from 12 noon to 12:45 pm, hence, there was no arrival or departure entry. He volunteered that they made entry in the PS only once in the morning on receipt of call. PW23 stated that ASI Om Prakash apprehended accused Munna from his house i.e. A23. PW23 had also visited house no. A23, Gali No. 11. PW23 stated that he had collected blood samples which were found in front of the house of the accused. He denied that he did not collect any blood samples from the front of the house of the accused. No public persons had stated to witness the case and, therefore, he did not record the statement of any public persons. PW23 denied that said chapad Ex. P1 was purchased by the police official from the market and the same was planted on the accused. PW23 denied that he did not try to record the statement of any of the public persons. PW23 came to know that the injured was not fit for statement in the BJRM Hospital by the doctor. PW23 denied that he was not told by the Doctor that the injured Chotu was unfit for statement. PW23 also denied that injured Chotu was fully conscious or that he did not record his statement deliberately. PW23 prepared the rough sketch of the site plan at the instance of FIR No. 145/11; State Vs. Munna Page 36 of 48 ASI Om Prakash at the spot and took ASI Om Prakash at the spot but he did not remember the time. PW23 denied that he did not draw the rough sketch of the site plan at the spot at the pointing out of ASI Om Prakash or that ASI Om Prakash did not visit the spot subsequently. PW23 also denied that weapon of offence was not used in the present incident or that the same was planted upon the accused.
27. PW24 Inspector Jawahar Singh stated in his examination in chief that on 25.06.2011, he was posted as SHO Mahendra Park and after the death of injured Chotu the present case was handed over to him for further investigation. The accused Munna was already arrested by SI Kanhaiya Lal. The dead body of deceased Chotu was brought to the Mortuary, BJRM Hospital from Apex Trauma Centre, Civil Lines, Delhi. PW24 prepared the inquest papers Ex. PW24/A (9 pages), and postmartem was got conducted by the Autopsy Surgeon vide PM No. 579/11. After postmartem, SI Kanhaiya Lal handed over him the blood gauze piece of deceased Chotu along with sample seal FMT BJRM Hospital which was seized by vide seizure memo already Ex. PW10/A. The dead body was handed over to the relatives of the deceased Chotu including his elder brother Rehmat Ali vide handing over memo already Ex. FIR No. 145/11; State Vs. Munna Page 37 of 48 PW1/B after the identification of the dead body by Mohd. Ahmad and Rehmat Ali. On 18.08.2011, the exhibits of the present case were sent to FSL, Rohini, Delhi, through HC Jagbir Singh, No. 380 (N/W). On 03.09.2011, the scaled site plan Ex. PW14/A was got prepared through SI Manohar Lal, Draughtsman (N/W) at the instance of SI Kanhaiya Lal. The statements of the witnesses were recorded. PW24 identified the accused Munna in the court. PW24 also identified blood gauze as Ex. P11 and the sample seal as Ex. P12.
28. During crossexamination by Ld. defence counsel, PW24 stated that eyewitness of the incident was ASI Om Prakash. PW24 stated that scaled site plan was not prepared at the pointing out of ASI Om Prakash. He volunteered that unscaled site plan was already prepared by SI Kanhaiya Lal at the pointing of the complainant, therefore, he got the scaled site plan prepared at the pointing of SI Kanhaiya Lal. PW24 took the investigation of the present case on 25.06.2011 and the custody of the accused automatically passed over to him. He produced the accused before the Court and thereafter, the accused was sent to JC on the same day. PW24 denied that he wrongly filed that chargesheet against the accused or that it was a case of mistaken identity or that the accused was apprehended under misunderstanding. FIR No. 145/11; State Vs. Munna Page 38 of 48
29. DW1 Wasim stated in his examination in chief that he was working as a tailor. About 3 years back at about 6:30 am, one unknown person entered into his house where he was living on rent with other tenants. It was vacation time and most of the tenants had gone to their native place with their families. Only DW1 was present in the house at that time and his family had also gone to the native place. The person who entered into his house was in injured condition. Accused Munna was sitting on a cot in front of his house. The injured entered into his house from the front passage and was given escape from the house by accused Munna from backside. The injured was shouting for help "bachaobachao". After five minutes, the police came. The police gypsy was stationed in front of house of DW1 at the entrance from which the injured entered. The gali in front of his house turns at about 50 yards towards right side and merges in roads.
30. During crossexamination by Ld. APP for State, DW1 stated that accused Munna was staying in one of the rooms in the house where he was staying on rent. Accused Munna was also staying there on rent. Accused Munna was a rickshaw puller and his family was also residing along with him. The family members of accused Munna were also present in the house on the date of FIR No. 145/11; State Vs. Munna Page 39 of 48 incident in question. After five minutes of the injured entering in his rented accommodation, the police officials came. DW1 was questioned by Ld. APP for State as to why he and accused Munna present in the said house where the injured entered did not give protection to the injured. DW1 replied that in order to keep them away from any unnecessary involvement in any criminal case. DW1 also stated that he and accused Munna both belong to Uttar Pradesh. He knew the injured prior to the incident. DW1 did not know from where the injured belong and what was his name. The injured entered to his house at about 6:30 am, but he did not remember the date. DW1 stated that photographs of the spot were Ex. PW13/A1 to PW13/A27. DW1 was present inside his room when the injured entered into the said house so he did not know his condition when he entered the house and when he went out of the house. DW1 denied the suggestion that because of his closeness with the accused Munna, he was deposing in his favour. He also denied that because the accused belong to the same State to which he belongs and was staying in the same accommodation, therefore, he was deposing falsely. DW1 did not know how many police officials came at the spot. He volunteered that they might be 23 in numbers.
FIR No. 145/11; State Vs. Munna Page 40 of 48
31. The Ld. defence counsel argued that there are contradictions in the testimonies of PWs, therefore, testimonies of PWs cannot be relied upon. I have found that there are some contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. As far as independent public persons joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers who are eyewitnesses in this case is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because independent public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for non joining of independent public witnesses. In this context, I am supported with the judgements reported in the case of State of UP FIR No. 145/11; State Vs. Munna Page 41 of 48 Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
32. The Ld. counsel for the accused further argued that the police has not fairly investigated the case and the investigation is defective. Ld. APP for State argued that if there is a defective investigation, the accused cannot also take the benefit of it. It is relevant to mention here that even if the investigation is defective or faulty, the accused cannot be acquitted solely on account of defective or faulty investigation. In this regard, I would place reliance upon the Judgment reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
33. The Ld. defence counsel for the accused also argued FIR No. 145/11; State Vs. Munna Page 42 of 48 that prosecution has failed to prove motive for the murder. But in the present case, the prosecution has proved motive for the offence of murder committed by the accused as discussed above. Even otherwise, the defence, to my view, cannot dig out any advantage from the fact that motive has not been proved. No doubt, the court generally tries to asses the motive behind any murder but most often only the perpetrator of crime alone knows as to what circumstances prompted him/ her to certain course of action. Motive is in the mind of accused and can seldom be fathomed with any degree of accuracy. Therefore, absence of motive cannot dislodge the entire prosecution story. In this context, I would place a reliance upon the judgement reported in the case of State of UP Vs. Babu Ram 2000 (II) AD 285, it was held that:
"Motive is a relevant factor in all criminal cases whether based on the testimony of eyewitnesses or circumstantial evidence. The question in this regard is whether a prosecution must fail because it failed to prove the motive or even whether inability to prove motive would weaken the prosecution to any perceptible limit. No doubt, if the Prosecution proves the existence of a motive it would be well and good for it, particularly in a case depending on circumstantial evidence, for, such motive could then be counted as one of the circumstances. However, it cannot be forgotten that it is generally a difficult area for any prosecution to bring on record what was in the mind of the respondent. Even if the Investigating Officer would have succeeded in knowing it through interrogation that cannot be put in evidence by them FIR No. 145/11; State Vs. Munna Page 43 of 48 due to the ban imposed by law. In this context, we would reiterate what this court has said about the value of motive evidence and the consequences of prosecution failing to prove it, in Nathuni Yadav Vs. State of Bihar, [1998 (9) SCC 238] and State of Himachal Pradesh Vs. Jeet Singh [1998 (4 SCC 370)].
Following passage can be quoted from the latter decision:
No doubt it is a sound principle to remember that every criminal act was done with a motive but its corollary is not that no criminal offence would have been committed if the prosecution has failed to prove the precise motive of the accused to commit it. When the Prosecution succeeded in showing the possibility of some ire for the accused towards the victim, the inability to further put on record the manner in which such ire would have swelled up in the mind of the offender to such a degree as to impel him to commit the offence cannot be construed as a fatal weakness of the prosecution. It is almost an impossibility for the Prosecution to unravel the full dimension of the mental imposition of an offender towards the person whom he offered."
34. It is evident from the testimonies of PWs as discussed above that PW11 ASI Om Prakash and PW19 Ct. Kuldeep are the eyewitness of the occurrence. PW11 categorically stated that when he was patrolling along with Ct. Kuldeep/ PW19 in private Gypsy, they saw one boy (Chotu since deceased) smeared with blood and he was running shouting 'bachaobachao' and the boy/ deceased was being chased by the accused having blood stained chapad (big knife) and he was saying "aaj mein tujhe zinda nahin chodunga. Tune mera kafi nuksan kar diya hai. Tere karan mere sare aam sar FIR No. 145/11; State Vs. Munna Page 44 of 48 gaye hai." PW11 and PW19 got down from the said Gypsy and chased the accused and entered into the courtyard of the house where they also saw that the accused made a blow of chapad on the neck of the injured. The accused was apprehended at the spot of occurrence along with the blood stained chapad. The accused has been correctly identified by PW11 and PW19. The chapad used by the accused at the time of incident has also been proved by the said eyewitnesses. PW7 Dr. Gopal Krishan proved that on 24062011, the injured Chotu was brought to the hospital by ASI Om Prakash. PW18 Dr. Dheeraj Kumar stated that Chotu (since deceased) was admitted in the hospital on 24062011 at about 11:15 am and he died on the same day at about 2:15 pm. PW18 proved the death summary of the deceased Chotu. PW20 Dr. V. K. Jha who conducted postmartem of deceased Chotu stated that the deceased had history of stabbing and he opined cause of death as hemorrhagic shock as a result of stab wound. PW22 Dr. Vishal proved that deceased was a case of multiple stab injuries over abdomen, chest, face, neck and bilateral upper limb. In this context, I would also place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650:
2008 (11) SCALE 233, it was held that it is the quality of the FIR No. 145/11; State Vs. Munna Page 45 of 48 evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted.
35. In the present case, the testimonies of PW11 and PW19 have not only inspired confidence but they are also trustworthy. The clear and consistent stand of eyewitnesses i.e. PW11 and PW19 about the presence of the accused at the time of incident and his identification by PW11 and PW19 creates no doubt in their testimonies. In Gulshan Vs. State through Govt. of NCT of Delhi, 2010 (1) JCC 562, it was held that identification in a court is a substantive piece of evidence. The Ld. counsel for the accused FIR No. 145/11; State Vs. Munna Page 46 of 48 crossexamined PW11 and PW19 but nothing has come out from the crossexamination of PW11 and PW19 which could support the case of the accused.
36. The court has the power to examine the accused u/s 313 Cr.P.C. In Raman Saikia Vs. State of Assam (1997) 2 Crimes 555 (Gau.), it was held that section 313 is an important section and salutary provision which should not be slurred over. In Pudhu Raja & Anr. Vs. State, Rep. by Inspector of Police, 2012 [4] JCC 2751, it was held that it is obligatory on the part of the accused while being examined u/s 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him. In the present case, the accused, in his statement u/s 313 Cr.P.C., has merely denied all the incriminating evidence. DW1 and the accused were staying in the same house on rent and belonged to the same state. DW1 himself admitted that injured Chotu entered the house and was shouting for help 'bachaobachao'. If DW1 and accused saw the injured Chotu entering the house then why they did not take any step to save him. Therefore, the testimony of DW1 is not reliable. Whereas, the Prosecution has satisfactorily proved the case of use of knife (chapad) and murder by the accused Munna. Therefore, it has been proved by way of oral testimony of PWs FIR No. 145/11; State Vs. Munna Page 47 of 48 coupled with medical as well as scientific evidence that the accused had committed murder of Chotu by chhura (chapad) and thereafter victim died in the hospital after succumbing to his injuries. It was found from the injuries on the person of deceased as detailed in the postmortem report and it can be said beyond reasonable doubt that the accused really intended to cause death of Chotu. The aforesaid jugements relied upon by the Ld. defence counsel are distinguishable from the facts and circumstances of the present case.
37. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused beyond reasonable doubt. I, therefore, hold the accused guilty and convict him u/s 302 IPC and 25/27/54/59 Arms Act. Copy of judgement be given to the convict free of cost.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 28112014 FIR No. 145/11; State Vs. Munna Page 48 of 48