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Delhi District Court

State vs . (1) Mukesh @ Jurra on 30 November, 2011

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II 
             (NW): ROHINI COURTS: DELHI


Session Case No. 1215/10
Unique Case ID No. 02404R0091872010

State                                      Vs.         (1)     Mukesh @ Jurra 
                                                               S/o Kishan Lal
                                                               R/o H­4/1563, 
                                                               Jahangir Puri, Delhi
                                                               (Convicted)

                                                       (2)     Karan @ Palak
                                                               S/o Bishamber Dayal
                                                               R/o C­142, H­4,
                                                               Jahangir Puri, Delhi
                                                               (Convicted)


FIR No.:                                         76/2009
Police Station:                                  Mahindra Park
Under Section:                                   302/201/394 IPC

Date of committal to sessions court: 26.4.2010

Date on which orders were reserved: 20.10.2011

Judgment announced on:                           14.11.2011 



JUDGMENT:

As per allegations on 30.11.2009 opposite Siddhu Petrol Pump near Metro Pillar No. 122/123, GTK Road, Jahangir Puri, Delhi both the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 1 accused Mukesh @ Jurra and Karan @ Palak along with their associate Sajan (who is a juvenile and facing trial before the Juvenile Justice Board) in furtherance of their common intention committed robbery by snatching money, mobile phone and bag containing some documents from Narender Kumar and voluntarily caused hurt upon him. It is further alleged that in furtherance of their common intention they committed murder of Narender Kumar by giving knife blows to him. Further, as per the allegations the accused Mukesh @ Jurra was carrying a buttondar knife in contravention of the notification of Delhi Administration and while committing the robbery the accused Mukesh @ Jurra used the said knife.

BRIEF FACTS/ CASE OF THE PROSECUTION:

The case of the prosecution is that on 1.12.2009 on receipt of DD No.2A, SI Ram Kishan along with Ct. Kannu from Police Station Mahendra Park reached in front of Sidhu Petrol Pump, GTK Road where they found one dead body near metro pillar no. 122­123. On formal search of the dead body Rs.2,775/­ one railway journey ticket dated 30.11.2009 dated 30.11.2009 from Aligarh to Delhi and one wrist watch make RADO Quartz were recovered. On 15.12.2009 postmortem was conducted on the dead body of the deceased after which the last rites of the deceased were performed as unclaimed. Efforts were made to get the dead body identified and hue & cry notices were also issued. On 21.12.2009 one Ghamandi Lal alongwith his relatives came to the police station Mahendra Park and St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 2 identified the photograph and the belongings to be of his missing son Narender Kumar. Ghamandhi Lal also informed the police that Narender Kumar had started for Delhi from Aligarh on 30.11.2009 and was carrying a black colour bag containing the documents of the LIC policy, wearing apparels and a cash amount of Rs.5,000/­ and was also having a NOKIA phone model 1200 with SIM number 9917583422 issued in his (Ghamandhi Lal's) name. Thereafter, the said mobile was put on surveillance and during investigations it was found that the said mobile was running on the number 9991871503 in the name of Via Singh since 1.12.2009 to 2.12.2009 and from 9.12.2009 to 14.12.2009 on the number 9891892014 in the name of Kishan Lal @ Bittoo. The said persons were approached and on inquiries from Via Singh it was revealed that the SIM number had been taken in his name by one Rajpal since he belong to his native village and on interrogation Rajpal informed the police that he had taken the said mobile from one Sajan.

Kishan Lal @ Bittoo was also interrogated and he informed the police that he had borrowed the said mobile phone from Sajan. Thereafter, efforts were made to search for Sajan and on 10.1.2010 pursuant to a secret information the accused Sajan (juvenile) was arrested who admitted his involvement in the present case and got recovered the mobile phone belonging to Ghamandhi Lal and also disclosed the names of his two associates that is Mukesh @ Jurra and Karan @ Palak. The accused Sajan thereafter led the police to the house of Mukesh @ Jurra from where the accused Mukesh @ Jurra was arrested who disclosed that he had kept the knife and bag in the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 3 shop of Karan @ Palak after which he led them to the shop of Karan @ Palak from where the accused Karan @ Palak was apprehended and arrested. The accused Mukesh @ Jurra got recovered the knife from the wooden rack situated in the shop of Karan @ Palak and the accused Karan @ Palak also got recovered a black coloured bag containing the LIC documents in the name of Narender Kumar bearing his photograph and certain other documents of Havells company along with the card of the said company. After completion of investigations all the accused were charge sheeted and the accused Sajan being juvenile was sent to Juvenile Justice Board.

CHARGE:

Vide order dated 24.5.2010, this Court settled the charges under Sections 392/394/302 Indian Penal Code against the accused Mukesh @ Jurra and Karan @ Palak to which they pleaded not guilty and claimed trial. Further, charges under Sections 25/27/54/59 of Arms Act were settled against the accused Mukesh @ Jurra to which he pleaded not guilty and claimed trial.

EVIDENCE:

In order to prove its case the prosecution has examined as many as twenty one witnesses as under:

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 4 Public witnesses:

PW11 Ghamandi Lal is the father of the deceased who has deposed that he was a Chowkidar in Sikandar Rao and used to reside in the Police Station Sikandar Rao itself and on 30.11.09, his son Narender Kumar left his village for Delhi for getting the premium of LIC deposited. According to him, Narender Kumar was wearing a wrist watch and carrying a mobile of Nokia 1200 which was in his (witness's) name and he also carried a bag containing two pair of clothes, Rs.5,000/­ and left the village with one Sheovir of his village. The witness has further deposed that both his son and Sheovir had gone together upto Dhanipur Mandi, Aligarh and Sheovir returned from Dhanipur Mandi to the village and his son came to Delhi which fact was told to him by Sheovir. He has testified that Narender Kumar did not return the village for three to four days after which he tried to contact his son Narender Kumar but there was no response and he therefore made efforts to trace him and contacted the brother­in­law of his son Narender who informed him that Narender had not came to him. On this he lodged this information at Police Station Gandhi Park, Aligarh on 04.12.09. According to the witness, his son Narender was wearing one brown coloured pant, pink colour shirt, black colour jacket and badami colour (light red) shoes, grey colour socks and the phone number of his mobile was 9917583422 which his son Narender took when he came to Delhi. The witness has also deposed that when he was searching his son he found one St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 5 "Ishtihar" at Railway station, Aligarh in which he identified photograph of his son. Thereafter he along with his cousin Puran came to the Police Station where the clothes, wrist watch, photograph were shown to him which he had identified as belonging to his son Narender Kumar but he could not recollect as to how much amount was missing from the bag and his statement was recorded by the Investigating Officer. Witness has correctly identified the case property i.e. a wrist watch, one train ticket from Aligarh to Delhi dated 30.11.09, blood stained currency notes of total value of Rs.2,775/­ which are Ex.P1, P2 & P3 respectively; mobile phone make Nokia 1200 belonging to him and given by him to his deceased son which is Ex.P4; Black coloured bag bearing the words "OFFICIAL" written on it belonging to his deceased son Narender which bag is Ex.P5.

In his cross examination by the Ld. Defence counsel the witness has deposed that his statement was first recorded by the police when he had come to the police station to lodge a missing report with the police and told them about the whole thing. He has voluntarily added that his first report was lodged at Aligarh but he does not recollect the date being illiterate. He is unable to tell the date when he came to Delhi but states that it was after two to three days of his lodging the missing report at Aligarh. According to the witness, when he came to Delhi and gave information to the police he also told them the clothes which his son was wearing and carrying and also the other articles carried by him in his bag but he is not aware of the date on St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 6 which his statement was recorded by the Delhi Police. He has denied the suggestion that he did not tell anything to Delhi Police after two to three days of his lodging a complaint at Aligarh. The witness has also deposed that he was told about the killing of his son on his first visit to Delhi itself and thereafter he must have gone to the police station about two to three times. According to him, his statement was recorded on his first visit only and not thereafter and the articles belonging to his son were also shown to him by the Delhi Police when he first visited the Police Station. He has also deposed that no document pertaining to ownership of bag, wrist watch or any other article were taken by the police from him and he had seen the bag, mobile and wrist watch for the first time in this Court and prior to that he was never called for Test Identification Parade of the above said articles. He has admitted that he is not aware of the denominations of currency notes because the currency notes were not shown to him by the police and that he is not aware what was recorded by the police in Delhi when he informed them as to what had happened but has voluntarily added that his statement was not read over to him and he knew that the police noted his address.

PW12 Prem Pal is the brother­in­law (Sala) of Ghamandi Lal the father of deceased Narender by relation. He has deposed that co­ brother/Sandu and also the Sala of Ghamandi Lal both reside near his house and on 05.12.09, Ghamandi Lal telephoned him and asked him to call them and to forward a message that his Narender be send home. According to him, when he forwarded this message to Narender co­brother/sandu of St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 7 Ghamandi Lal and Mahesh Sala of Ghamandi Lal they told him that Narender S/o Ghamandi Lal had not came to their house, on which he conveyed this message to Ghamandi Lal when he called him again and thereafter Ghamandi Lal came to Delhi on the very next day and told them that Narender had started for Delhi on 30.11.09. He has testified that this fact was also communicated by him to his other relatives staying in Delhi and they tried to search for Narender and after some days when they could not located Narender that is around 20­21 of December, 2009 they went to police station Mahendera Park to inform the police and Ghamandi Lal showed the photograph of his son Narender to the police and informed them that his son was not traceable on which the police told Ghamandi Lal that this boy had been stabbed and his body was found near a petrol pump. The witness has further deposed that the police also showed a photograph of the deceased which he, Ghamandi Lal, Mahesh and another relative who is the chacha in relation to the deceased identified it as that of Narender and clothes of the deceased was also shown to them which were identified by Ghamandi Lal that of belonging to his son Narender.

Leading questions were put to the witness by the Ld. Addl. PP for the State with the permission of the Court wherein he has admitted that Ghamandi Lal had told him that Narender was carrying Rs.5,000/­, one mobile phone and two pairs of clothes along with passbook and has voluntarily added that he had come to give the installment in the bank but he is unable to tell if the number of the mobile was 9917583422. St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 8

In his cross examination by the Ld. Defence Counsel the witness has deposed that his statement was recorded by the police at police station itself in the evening. He has admitted that he had deposed with regard to the things/ articles carried by the deceased Narender on the basis of what was told by Ghamandi Lal in the police station and was not personally aware of this.

PW13 Mahesh has deposed that Ghamandi Lal is the father­in­ law of his real sister and Narender was her husband. He has deposed that they received a telephone of Ghamandi Lal on 5­6 December, 2009 that Narender had come to Delhi to file the installment of insurance policy and should be sent back. According to the witness, his wife who attended the call told him that Narender had not came to Delhi, on which Ghamandi Lal came to Delhi in search of his son Narender and they all also helped him but Narender could not be traced. He has testified that Ghamandi Lal again came to Delhi on 21.12.09 after seeing some posters at Aligarh regarding the identification of a dead body of missing person and then they all went to police station, Mahendera Park and when they went to police station they showed the photograph of Narender which was with them to the police on which the police told them that the person in the photograph had been stabbed to death on 01.12.09. The witness has also deposed that they also showed the photograph of the dead body of Narender which was identified by him, Ghamandi Lal, Prem Pal, Puran and other persons who had gone with them. PW13 has further deposed that they were also shown the clothes St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 9 which were worn by Narender at that time which clothes were identified by Ghamandi Lal as that belonging to Narender which he wearing at that time when he left Aligarh.

In his cross examination by the Ld. Defence Counsel the witness has admitted that the dead body was never handed over to them and has voluntarily added that it had already been cremated by the police. According to him, he did not tell the police that Ghamandi Lal had called on telephone which phone call was attended to by his wife. He has denied the suggestion that he did not mention this fact to the police as no such call was received or that he had made deliberate improvement in his earlier statement made to the police.

PW14 Rajpal has deposed that he was working with one Pradeep, a Cable Operator as his assistant and one Sajan who is a resident of G­1624, Jahangir Puri who had come to their office on 01.12.09. According to the witness his mobile has stopped working and on that day Sajan gave one mobile to him and told him that he could use it and he kept this mobile make Nokia 1200 of black/ slati colour for one day and used the same. The witness has further deposed that he returned the mobile phone to Sajan to the next day i.e. 02.12.09 as his personal mobile had already been repaired at that time. According to him, the number of his mobile connection was 9891871503 which he operated on the said mobile set for one day but he returned the said mobile phone to Sajan at 12.00 noon. The witness has further deposed that on 09.01.10 some police officers from Police station St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 10 Mahendera Park came to him and made enquiries about the mobile phone, then he told them that he had used this mobile phone Nokia 1200 for one day after taking it from Sajan and the said phone had been returned to Sajan and his statement was also recorded by the police on the same day. He has correctly identified the phone make Nokia 1200 mobile as the same which was used by him for one day which phone is Ex.P4. It has been observed by this Court that the IMEI No of mobile is 359842/01/758647/2 (as that of Ghamandi Lal). The testimony of the said witness has gone uncontroverted as he has not been cross­examined by the Ld. Defence Counsels.

PW15 Kishan Lal has deposed that he was running a pan shop and on 09.12.09, one boy Sajan who often used to come to his shop to purchase gutka came to him and told him that he wanted to sell the mobile phone make Nokia of black/slati colour but he told that he did not want to purchase and also told him that his telephone was not working hence he (Sajan) gave that mobile phone to him and told him that he could use it four to five days. According to the witness, his mobile connection of Idea was having number 9891892014 and he used this mobile phone on his connection for about four days but on 14.12.09, Sajan came to him at about 2:00 PM and asked him to return and accordingly he returned the same. He is not aware as to who was owner of the mobile phone but states that he only used the same for about four days. The witness has also deposed that on St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 11 07.01.10, police officer from police station Mahendera Park came to him to enquire about the mobile phone and his statement was recorded on the same day. He has also correctly identified the Nokia 1200 mobile as the same which was being used by him for four days which phone is Ex.P4.

It has been observed by this Court that the IMEI number of mobile is 359842/01/758647/2. PW15 has not been cross­examined by the Ld. Defence Counsels and his testimony has gone uncontroverted.

PW16 Baya Singh has deposed that he was running a shop of namkeens at I­27, Mahendera Park and Rajpal S/o Sh. Kalyan Singh is a resident of his village Rai ki Pali, Goth Chorauha, District Bhind, Madhya Pradesh and is a resident of Jahangir Puri. According to the witness, he is working with Pradeep, Cable operator and Rajpal was previously working with him and had obtained the SIM No. 9891871503 on his name and his address which he was using. He has further testified that the officers from police station Mahendera Park had come to him for investigation in this case on 05.01.10 and recorded his statement on the same day. The said witness has not been cross­examined by the Ld. Defence Counsels and his testimony has gone uncontroverted.

Medical evidence:

PW9 Dr. V.K. Jha has deposed that on 15.12.09 he was working as medical officer BJRM Hospital, Jahangir Puri, Delhi and on that day he conducted the postmortem on the dead body of one unknown person St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 12 aged about 26­27 at about 12.00 noon sent by Inspector Jawahar Singh and identified Ct. Kannu vide postmortem report Ex.PW9/A. He has proved that the cause of death in this case was hemorrhagic shock as a result of injury to heart consequent to stab wounds inflicted by other party and all injuries were antemortem in nature and Injury No. 2 was sufficient to caused death in ordinary course of nature. The witness has testified that the blood gauze piece were sealed with the sample seal and time since death was approximately 15 days. According to him, an application was filed by the Investigating Officer seeking opinion of injury caused by knife and corresponding cut mark on the clothes on the deceased and on 28.02.10, he perused the application and in reference to the said application he received two sealed packets with the seal of JS and on opening the same it found to contain clothes after which he examined the clothes and opined that the cut mark on the shirt and baniyan were consistent in the injuries mentioned on above said postmortem report. The witness has further deposed that on opening other parcel which was duly sealed it found containing one knife and he prepared the sketch of knife which is Ex.PW9/B and after examining the said knife, he opined that injury no. 2 mentioned in the aforesaid PM report has been caused by this weapon i.e. knife or similar such weapon. According to him, the aforesaid clothes and knife were sealed with the seal of mortuary of the hospital. He has proved his detailed report which is Ex.PW9/C. St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 13 In his cross examination by Ld. Defence counsel the witness has deposed that there was no visible stains on the knife. He has admitted that no stain has been mentioned on the sketch diagram Ex. PW­9/B. According to him, the sketch diagram of the knife and the designs which are the special identification mark is already mentioned in the sketch prepared by him which is Ex.PW9/B. He has denied the suggestion that such type of knives are produced before him in such opinion cases and hence there is no special identification mark on it or that the said injuries might have been caused by falling on some sharp object. The witness has also denied the suggestion that he had given the false report in this regard at the instance of the Investigating Officer and that he had given false opinion regarding the weapon of offence at the instance of Investigating Officer with a view to create false evidence to work out the untraced case. Police/ official witnesses:

PW1 HC Sushil Chand has in his examination in chief by way of affidavit Ex.PW1/1 proved having recorded the copy of the FIR which is Ex.PW1/A and having made his endorsement on the rukka which is Ex.PW1/B. In his cross examination by the Ld. Defence counsel the witness has deposed that it took about 30 minutes in recording the FIR and it was written upto 2:50 am. He has denied the suggestion that FIR is ante­time or is creation of after thought and manipulation.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 14

PW2 SI Manohar Lal has in his examination in chief by way of affidavit Ex.PW2/1 has proved having prepared the scaled site plan which is Ex.PW2/A. In his cross examination by the Ld. Defence counsel the witness has deposed that he reached the spot at about 3:30 PM and remained there for about one hour and one constable from police station came to call him from his office but he is unable to tell his name. He has denied the suggestion that he was not called by any constable hence he was unable to tell his name or that he never visited the spot. He has also denied the suggestion that the sketch/ site plan was prepared while sitting in the police station at the instance of the Investigating Officer. He has also deposed that rough notes were not handed over to the Investigating Officer by him.

PW3 HC Naresh has in his examination in chief by way of affidavit Ex.PW3/1 proved the copy of the DD No. 2A which is Ex.PW3/A. In his cross examination the witness has denied the suggestion that no such DD was written by him and has deposed that he had not given the DD entry to ASI Ram Kishan directly however, it has been sent through Ct. Yogesh. He has admitted that he had not stated this fact in his affidavit that the said DD entry was sent through Ct. Yogesh. According to him, it took about three to four minutes in recording the DD No. 2­A. PW4 SI Mahesh Chander has in his examination in chief by way of affidavit Ex.PW4/1 has proved the crime team report which is St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 15 Ex.PW4/A which he had submitted to the Investigating Officer. He has clarified that in the said report the time of call has been inadvertently mentioned as 12:45 PM on the first line instead of 12:45 AM (midnight) and therefore, the same may be read as 12:45 AM (midnight).

In his cross examination by Ld. Defence counsel the witness has deposed that they reached the spot at about 1:00 was (midnight) and remained there upto 2:15 was (approximately) and the Addl. DCP also reached at the spot but he is unable to tell the approximate time when he reached there and he remained their for about 30 minutes. He does not remember if the Addl. DCP did any writing work or made any endorsement and states that he along with his team could not trace any finger print or chance print from the spot.

PW5 HC Vijay Singh has deposed that on 1.12.2009 he was posted as MHCM at PS Mahendra Park and on that day ASI Ram Kishan has deposited Rs.2,775/­ (One note was of the denomination of Rs.500/­, 22 notes were of Rs.100/­ and one note was of Rs.50/­ and two notes were of Rs.10/­ and one coin of Rs.5/­), one railway journey ticket dated 30.11.2009 from Aligarh Junction to Delhi, one wrist watch having golden dial with one chain make Rado Quartz as recovered from personal search of the dead body and he received the same vide entry no. 79/09 of registered no.19, copy of which is Ex.PW5/A (running into three pages). He has deposed that on the same day Inspector Jawahar Singh deposited three exhibits duly St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 16 sealed with the seal of JS and he received the aforesaid articles vide same entry entry number. He has also deposed that on 15.12.2009 he was working as MHC(M) and on that day Inspector Jawahar Singh had deposited the clothes of the deceased and 9 sealed parcels/Exhibits duly sealed with the seal of FMT, BJRM Hospital and he received the same vide entry no. 95/09. According to him, the clothes of the deceased were duly identified by his father Sh. Ghamandi Lal which clothes were sealed by the SHO in the malkhana with the seal of JS, copy of which entry no. 95/09 is Ex. PW­5/B running into two pages. PW5 has testified that on 10.01.10, he was working as MHCM at Police Station Mahendra Park and on that day Inspector Jawahar Singh had deposited one sealed parcel containing one mobile phone duly with the seal of JS and one bag duly sealed with the seal of JS which he received vide entry no. 60/10 and as per direction of the SHO Inspector Jawahar Singh the photographs were handed over to SHO/Investigating officer to be placed with case file. According to PW5, Inspector Jawahar Singh has also deposited one buttondar knife duly sealed with the seal of JS and he received the same entry. He has proved that on 28.02.2010, he sent the sealed parcel containing buttondar knife to BJRM hospital mortuary through SI Madan Mohan vide DD No. 14A and same was received by him through SI Madan Mohan on the same day duly sealed with the seal of FMT, BJRM hospital, Delhi. According to him on 03.03.10, he sent the aforesaid six parcels duly sealed with the seal of JS and two sample seal of BJRM hospital through Ct. Sanjeev vide RC No. 13/21 to FSL, Rohini, the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 17 copy of entry no. 60/10 is Ex.PW5/C running into 7 pages copy of which RC is Ex.PW5/D. He has also proved that no tampering was done while case property remained in his position.

In his cross examination the witness has admitted that the time of depositing of the aforesaid exhibits is not mentioned anywhere on the aforesaid entries. He has denied the suggestion that he did not receive any of the exhibits or that the aforesaid entries were manipulated later on to link the case property with the case.

PW6 Ct. Bal Kishan has in his examination in chief by way of affidavit Ex.PW6/1 proved having taken the photographs of the spot which are Ex.PW6/A­1 to Ex.PW6/A­10.

In his cross examination witness has deposed that he along with the Crime Team reached the spot at about 1:00 was (midnight) and remained there till 2:10 AM and all the crime team members left the spot together but no chance print or finger prints were found at the spot. According to him the ACP and DCP also reached at the spot in his presence and they were already present at the spot when they reached there and remained at the spot for about 45 minutes but in his presence no writing work or endorsement was made by the ACP or DCP. He has denied the suggestion that he does not visit the spot or that the photographs were manipulated later on.

PW7 Sh. Husain M. Zaidi Authorized Signatory from Idea Cellular Ltd. UP (West Circle) has proved the ownership and call details of St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 18 mobile No. 9917583422 from 24.08.09 to 11.06.10 which is in the name of Sh. Ghamandi Lal which call details are Ex.PW7/A1 to Ex.PW7/A7. He has also placed on record the true copy of the customer application form in the name of Sh. Ghamandi Lal with regard to the aforesaid mobile number which is Ex.PW7/B; identity card of election commission in the name of Ghamandi Lal in support of the residential address and his identity is Ex.PW7/C running into two pages and the certificate under Section 65 B Evidence Act which is Ex.PW7/D. In his cross examination by Ld. Defence counsel the witness has denied the suggestion that he had manipulated a false call details.

PW8 Sh. Ajit Singh Assistant Nodal Officer from Idea Cellular Ltd. Delhi Circle has proved the ownership and call details of mobile phone no. 9891892014 which is in the name of Krishan Lal from 15.11.09 to 04.01.10 which call details are Ex.PW8/A­1 to Ex. PW8/A­8.

He has placed on record the true copy of the customer application form in the name of Sh. Krishan Lal with regard to the aforesaid mobile number which is Ex.PW8/B; photocopy of Driving License in the name of Krishan Lal in support of the residential address and his identity which is Ex.PW8/C. He has further proved the ownership and call details of mobile phone no. 9891871503 which is in the name of Waya Singh from 15.11.09 to 04.01.10, which call details are Ex.PW8/D­1 to Ex. PW8/D­15; true copy of the customer application form in the name of Sh. Waya Singh with regard to St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 19 the aforesaid mobile number which is Ex.PW8/E; photocopy of Voter ID card in the name of Waya Singh in support of the residential address and his identity which is Ex.PW8/F and the certificate under Section 65 B Evidence Act in respect of the aforesaid numbers which is Ex.PW8/G .

In his cross examination by Ld. Defence counsel the witness has denied the suggestion that he had manipulated a false call details.

PW10 Ct. Sanjeev Kumar has in his examination in chief by way of affidavit Ex.PW10/1 proved that on 3.3.2010 he had taken the exhibits of the case to the FSL Rohini vide RC No. 13/21/10 and deposed the same with FSL Rohini vide memo No 438 after which he handed over the receipt, memo and copy of RC to MHCM. He has proved that the exhibits were not tampered with during the period it remained in his custody.

In his cross examination by Ld. Defence counsel the witness has deposed that he had not received the directions from the SHO in writing but verbal directions have been issued to him. According to him, no time was mentioned in the entry regarding the said direction. He has denied the suggestion that no such direction was given to him by the SHO. The witness is unable to tell the name, designation or initial of the official from FSL Rohini with whom he had deposited the case property but has denied the suggestion that he had not deposited the exhibits to the FSL and therefore, he was unable to tell the description of the official to whom the exhibits were deposited. He has also denied the suggestion that the entries are St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 20 manipulated later on at the instance of the Investigating Officer with a view to create to false evidence to work out the false case.

PW17 Sh. Kennedy Siwal ABM from LIC of India Wazirpur Branch has brought the summoned record that is the status report of police No. 123179948 which is in the name of Narender Kumar S/o Sh. Ghamandi Lal R/o House No.1392, Block A, Jahangirpuri, Delhi which is Ex.PW/17/A. The witness has identified the notice along with inland letter card issued from LIC of India which notice is Ex.PW17/B and according to the witness, was issued to the policy holder Narender Kumar which notice is having the policy number and other details of the policy and same was issued to the policy holder in the aforesaid inland letter card vide Ex.PW17/C. In his cross examination the witness has admitted that he has no personal knowledge regarding the present policy holder and at the time of issuing of present policy he was not working in that office.

PW18 HC Sunil Kumar has proved that on the intervening night of 30.11.2009 and 1.12.2009 he was posted in PCR and was on duty from 8:00 PM to 8:00 AM. According to him, at around 12 midnight he received a call on 100 number regarding an unconscious person lying under a tree on the footpath. He has proved having filled in the relevant column of the PCR form which is Ex.PW18/A. St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 21 In his cross examination by Ld. Defence counsel the witness has admitted that the Ex.PW18/A does not bear the signatures or initial of any person and that did not fill in the aforesaid form except the entries made at point A. He has also admitted that he did not make any initial at the entry at point A to show that the entires at point A was filled in by him but has denied the suggestion that he did not fill the entry at point A also.

PW19 Ct. Kannu Panwar has deposed that on the intervening night of 30.11.2009 and 01.12.2009 he was posted in Police Station Mahendra Park and on that day he was on emergency duty along with ASI Ram Kishan from 8PM to 8AM. According to him, at about 12:15 AM (midnight) when he was coming back to the police station along with ASI Ram Kishan after attending some call of another case then on the way Ct. Yogesh handed over DD No.2A dated 01.12.2009 to ASI Ram Kishan on which he along with ASI Ram Kishan reached at GTK road, opposite Sandhu Petrol pump near metro pillar No. 122­123 where they found one dead body lying on the pavement. Witness has further deposed that there was a cut mark of sharp injury with some sharp edged weapon and the body was in the pool of blood after which the Investigating Officer conducted the casual search of the body to ascertain its identity. According to the witness, Rs 2775/­, one railway ticket from Aligarh to Delhi dated 30.11.2009 were recovered from the pocket of his shirt and one golden dar wrist watch having the chain of Rado Quartez was found on the left hand. He has St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 22 proved that Investigating Officer ASI Ram Kishan took the said articles and amount into possession vide seizure memo Ex.PW19/A after which Investigating Officer prepared a rukka and handed over the same to him on which he took the same to the police station and got the case registered. He has further deposed that he came back to the spot with copy of FIR Ex.PW1/A and original rukka which he handed over to Investigating Officer and he took the dead body to the mortuary of Babu Jagjeevan Ram Memorial hospital and the dead body remained in his possession. The witness has testified that no tampering was done with the dead body during the period same remained in his possession and Insp. Jawahar Singh had also come to the mortuary and after getting the dead body identified the postmortem on the dead body was got conducted after which the doctor handed over the clothes of the deceased and exhibits to the Investigating Officer which he took into possession vide seizure memo Ex.PW19/B. In his cross examination by Ld. Defence counsel the witness has deposed that they reached the spot at about 12:20AM(midnight) and the dead body was turned turtle by ASI Ram Kishan but the blood was found only on the chest and where the dead body was lying but they did not notice about blood at any other place. According to him, Crime team reached at the spot in his presence. He has denied the suggestion that one black coloured bag was also lying near the dead body on the pavement. He has testified that he and ASI Ram Kishan went to the spot on his motorcycle, but St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 23 he is unable to tell its number or make. He has admitted that no memo of handing over the seal was prepared by the Investigating Officer. He is unable to tell the span of time during which Crime team remained at the spot and has voluntarily added that till his departure for the hospital the crime team was present at the spot but he is unable to tell the approximate time of its arrival. According to the witness, the distance between the police station and the spot is about 700­800 meters and he reached at the police station for lodging FIR at 2:20 AM and remained there for about one hour and reached at the spot at 3:30 AM. He has further deposed that the writing work was done while standing on the pavement but he is unable to tell when the Investigating Officer started the writing work and how long it continued but states that the site plan was not prepared by the Investigating officer in his presence. According to the witness, he did not sign on any paper prepared by the Crime Branch officers. He has denied the suggestion that he did not go to the police station with the rukka for getting the case registered or that he did not visit the spot.

PW20 SI Ram Kishan is the initial Investigating Officer who has deposed that on 01.12.2009 he was posted at Police Station Mahendra Park as ASI and on that day on the receipt of DD No. 2A from Ct. Yogesh vide Ex.PW3/A he along with Ct. Kannu reached in front of Sindhu Petrol Pump, GTK road where they found one body near the metro pillar No. 122­123 and he turned the same turtle and found a grave wound on the chest St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 24 and his clothes were in the pool of blood after which he conducted the casual search of the body during which Rs.2,775/­, one railway ticket from Aligarh to Delhi dated 30.11.2009 and one wrist watch tied on the hand of the body on which he took into possession vide seizure memo Ex.PW19/A. According to the witness, he called the crime team and the photographer of the crime team took the photographs of the scene of crime which are Ex.PW6/A to Ex.PW6/M and on DD No. 2A he prepared the rukka which is Ex.PW20/A after which he sent Ct. Kannu to the police station with rukka for getting the case registered who came back to the spot with copy of FIR Ex.PW1/A and original rukka and same were handed over to SHO Insp. Jawahar Singh who had come to the spot before arrival of Ct. Kannu. The witness has further deposed that thereafter he sent the dead body to Babu Jagjeevan Ram Memorial hospital through Ct. Kannu along with his application which is Ex.PW20/B and got the same preserved at mortuary. According to him, he did not go to the hospital or mortuary and the postmortem of the dead body was got conducted by Insp. Jawahar Singh since further investigations of this case was handed over to Insp. Jawahar Singh and he handed over the documents prepared by him.

In his cross examination by Ld. Defence counsel the witness has deposed that the said DD was received by him when he was present outside the police station and the distance between the police station and the spot is about half kilometer and they both went to the spot on his motorcycle St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 25 but no entry regarding the vehicle used by him was made in the police station. According to him, no person from Sidhu Petrol Pump was called to join the investigations and they remained there at the spot till 4 AM and the writing work was done by him while sitting on the pavement and it took about 10­15 minutes in writing work but he had not shown the street light or the source of light at the spot in the site plan where the writing work was done. He has denied the suggestion that all the writing work was fabricated in the police station itself. He is unable to tell the approximate time when the crime branch official reached at the spot and how long they remained there but states that the documents prepared by the crime branch official were not signed by him or the other police official. According to him, no senior police official like DCP, CP or Joint Commissioner reached at the spot in his presence. He has admitted that no public person was asked to join the investigations of this case and that no trail of blood was found near the spot. According to the witness, Ct. Kannu took the search of the dead body of the deceased but he did not search the dead body of the deceased. The witness has further deposed that nothing was found in the back pocket of the pant of the decease but he is unable to tell if the black color bag was lying at the spot near the dead body.

PW21 Insp. Jawahar Singh is the subsequent Investigating Officer who has deposed that on 01.12.2009 he was posted at Police Station Mahendra Park as SHO and on that day DD No. 2A at about 12:10 regarding a person lying near Sidhu Petrol Pump, GTK Road was handed over to ASI St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 26 Ram Kishan who along with Ct. Kannu reached at the spot and the Duty Officer informed him about the incident on which he along with his staff reached at Metro pillar No. 122/123, on the pavement of GTK road in front of Sidhu Petrol Pump. According to him, the dead body was found lying through the side of his stomach and the body was turned turtle when they found a stab injury on the left side of the chest and the cloth of the deceased were ransacked with blood and there was corresponding cut mark on the shirt and vest of the deceased. The witness has further deposed that ASI Ram Kishan sent rukka and he (witness) called the crime team and in the meanwhile Ct. Kannu brought the copy of FIR and original rukka to the spot and the further investigations of this case was handed over to him being case of murder. According to the witness, ASI Ram Kishan conducted the personal search of the body and recovered Rs.2,775/­, one railway journey ticket dated 30.11.2009 from Aligarh to Delhi and one wrist watch make RADO Quartz of golden color which articles were taken into possession vide seizure memo Ex.PW19/A by ASI Ram Kishan. The witness has also deposed that Crime Team also inspected the spot and prepared the report which is Ex.PW4/A and the photographer of the Crime Team took the photographs of the body of the deceased which are Ex.PW6/A1 to Ex.PW6/A10. According to the witness, he lifted the blood samples with the help of gauze piece from the place of incident which was kept in a plastic container and sealed the same with the seal of JS and also lifted the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 27 blood stained cemented tiles in the form of earth control after breaking and converted the same into pullanda while putting the same into a plastic container and sealed the same with the seal of JS, which exhibits were seized vide memo Ex.PW21/A and the exhibits were deposited in malkhana of Police Station Mahendra Park. The witness has testified that on 15.12.2009 the postmortem on the dead body was got conducted and he prepared the inquest documents i.e. brief facts which are Ex.PW21/B, Death report which is Ex.PW21/C and request for postmortem which is Ex.PW21/D. He has proved having recorded the statement of ASI Ram Kishan and Ct. Kannu who identified the dead body to be the same which they had lifted from the spot vide Ex.PW21/E and also vide memo Ex.PW21/F and after getting the postmortem conducted since the dead body could not be identified therefore the dead body was sent to cremation center Hazrat Nizamuddin. According to him, the doctor concerned handed over the clothes, belongings i.e. shoes, socks to Ct. Kannu in an unsealed condition which Ct. Kannu handed over to him and he took the same into possession vide seizure memo Ex.PW19/B and he received the receipt of cremation of the dead body from Ct. Kannu which is Ex.PW21/G. The witness has further deposed that he collected the postmortem report which is Ex.PW9/A and made efforts to get the dead body identified but same could not be identified and the dead body was got preserved by ASI Ram Kishan and was sent to Mortuary, BJRM hospital. He has also deposed that St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 28 he got issued a hue and cry notice vide Ex.PW21/H and same was got pasted on the conspicuous part of railway station and ISBT and since the deceased was having a railway journey ticket from Aligarh to Delhi therefore he sent HC Chander Veer to Aligarh to ascertain the identity of deceased from the police stations at Aligarh and prior to cremation, he also got flashed the wire less message on all India basis for identification of dead body.

According to PW21, on 21.12.2009 one Ghamandi Lal S/o Sh. Chander Pal from Hathras came to the police station along with his relatives and told him that they had received information regarding a dead body and had come to find out whether it belong to the missing son of Ghamandi Lal on which he showed them the photograph, clothes and the other belonging of the deceased which he had preserved which Ghamandi Lal and his relative Prem Pal and others identified to be that of the missing son of Ghamandi Lal namely Narender Kumar. He has testified that after the dead body was identified an endorsement to this effect was made on seizure memo which is Ex.PW19/B and all the clothes and articles were converted into parcel and sealed the same with the seal of JS then the said parcel was deposited in malkhana at the same time. Witness has further deposed that Ghamandi Lal informed him that his deceased son Narender Kumar had left Aligarh and started for Delhi on 30.11.2009 and was carrying a black color bag containing the documents of the LIC policy, wearing apparels and a St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 29 cash amount of Rs 5 thousand which had to be deposited towards the LIC policy. Ghamandi Lal also informed that Narender Kumar was carrying a NOKIA phone model 1200 with SIM number 9917583422 issued in his (Ghamandi Lal's) name. The witness has deposed that on receipt of this information he put the mobile phone containing SIM number 9917583422 on surveillance on which he came to know that the above mobile phone with the prescribed IMEI number was running on the number 9991871503 in the name of Via Singh S/o Raghubir Singh, house No. 206, Bhalswa Village since 01.12.2009 to 02.12.2009 and thereafter from 09.12.2009 to 14.12.2009 it was running on the mobile phone No. 9891892014 in the name of Kishan Lal @ Bittoo R/O H­3/1503 , Jahangirpuri. On inquiries from Via Singh it was revealed that this SIM had been taken by one Rajpal who was a resident of district Bhind from the same area to which Via Singh belong and was working with Pardeep cable wala in G Block, Jahangirpuri after which inquiries were made from Rajpal who informed the Investigating Officer that since his own phone was not in working order therefore he has borrowed this mobile phone from one Sajan for two days and thereafter returned the same to Sajan after two days. The witness has testified that inquiries were also made from Kishan Lal @ Bittoo who informed revealed that he had also borrowed this phone from Sajan from 09.12.2009 to 14.12.2009 on which they tried to search for Sajan. According to the witness, on 10.01.2010 they received a secret information on the basis of which Sajan was apprehended from in front of his house at G Block, House St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 30 No. 1604, Jahangipuri who was duly interrogated and during interrogation he disclosed that they had robbed this mobile phone on knife point along with his associates Mukesh @ Jurra and Karan @ Palak on 30.11.2009 near the metro station Jahangirpuri from a boy who was coming from Azadpur side which disclosure is Ex.PW21/I. The witness has proved that Sajan got the said mobile phone recovered from the box under his bed which was seized vide memo Ex.PW21/J and on the pointing out of Sajan the present accused Mukesh @ Jurra was apprehended from his house at H­4 Block who was interrogated and he admitted his involvement in the present offence vide disclosure statement Ex.PW21/K. Mukesh @ Jurra further disclosed that the bag and the knife had been kept in the shop of Karan @ Palak after which accused Mukesh led them to the shop of Karan @ Palak situated at G Block market bearing shop No. 65 where Karan @ Palak was found sitting and on pointing out of Sajan and Mukesh, Karan @ Palak was apprehended and interrogated during which Karan @ Palak made a disclosure which is Ex.PW21/L. The witness has further deposed that before they had gone to the shop of the Karan the accused Sajan and Mukesh also pointed out the place of incident while leading them there vide memo Ex.PW21/M. According to PW21, while they were still at the shop of Karan @ Palak the accused Mukesh @ Jurra got recovered a knife from the wooden rack situated in the shop of Karan @ Palak which knife was measured with the help of a scale and Khaka of the knife was prepared which is Ex.PW21/N; St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 31 its total length was found to be 24.1 cms, length of the handle was found to be 13.7 cms and length of the blade was found to be 10.3 cms; the blade of the knife was sharp from both the sides and there was a design of three holes on the blade. He has proved having seized the knife after converting the same into pullanda vide memo Ex.PW21/O. According to the witness, the accused Mukesh was arrested from in front of his house before they went to the house of Karan @ Palak vide memo Ex.PW21/P and his personal search was conducted vide memo Ex.PW21/Q. He has proved that the accused Karan @ Palak was also arrested from in front of his shop vide memo Ex.PW21/R and his personal search was conducted vide memo Ex.PW21/S. The witness has further deposed that Karan @ Palak also got recovered a black colored bag from his shop which on opening was found to contain LIC documents in the name of Narender Kumar bearing his photograph and certain other document of Havells company along with the card of the same company which documents along with the bag were converted into a pulanda with the help of the white color duly sealed with the seal of JS and seized vide memo Ex.PW21/T. He has also proved that Karan @ Palak thereafter pointed out the place of occurrence vide memo Ex.PW21/U and thereafter all the three accused persons were produced before the Ld. MM on the next day and were remanded to Judicial custody.

According to the witness, he filed an application before the doctor vide Ex.PW21/V for seeking the opinion on the knife on which the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 32 autopsy surgeon Dr. V.K. Jha had gave his opinion. He has proved having recorded the statements of the various witnesses and also having prepared the site plan which is Ex.PW21/W when he had reached the spot on receiving the information on 21.12.2009. He has deposed that he had also called the draftsman to the spot for preparing the scaled site plan which scaled site plan is Ex.PW2/A. The Investigating Officer has further deposed that thereafter he sent the exhibits to CFSL and sought a report on the same and also collected the report from CFSL which is Ex.PW21/X (not disputed by the accused) which he filed in the Court. The witness has proved that he had prepared the charge sheet after completing the investigations and filed the same in the Court.

With the permission of the Court the Ld. Addl. PP for the State has put some leading questions to the witness who has admitted that he made request for postmortem on 15.12.2009 and the death report Ex.PW21/C was prepared on 01.12.2009. He has also admitted that the address of Krishan is H­3/1435, Jahangirpuri, Delhi and that the address of Mukesh is H­4/1563, Jahangirpuri, Delhi. He has further admitted that Dr. V.K. Jha has also prepared the sketch of the knife vide Ex.PW9/B which he handed over to him. PW21 has admitted that he collected the call details of the aforesaid numbers and placed the same on record and that he collected the subscriber form of Via Singh and Ghamandi Lal which are mark X1 and X2 and the call details of the aforesaid numbers are mark 3 collectively. St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 33 The witness has further admitted that he collected PCR form which is Ex.PW18/A or that DD No. 5A and 6A were attested by him which are Ex.PW21/Z­1 and Ex.PW21/XZ­2 and the photograph Ex.PX­2, Ex.PW17/B, inland letter of LIC Ex.PW17/C, Status report of LIC policy Ex.PW17/A and envelop Ex.PW21/PX­3 are the same which were recovered from the bag so recovered by accused Karan @ Palak. The witness has also admitted that the length of blade was 10.4 cms.

He has correctly identified both the accused Karan @ Palak and Mukesh @ Jurra as well as the case property i.e. blood stained currency notes total value of Rs.2,775/­, one wrist watch, one train ticket from Aligarh to Delhi dated 30.11.2009 as taken by him into possession which are Ex.P­1, P­2 and P­3; mobile phone make NOKIA 1200 which is Ex.P­4; one black colour bag bearing the words "OFFICIAL" same as belonging to deceased Narender which is Ex.P­5; one plastic container which is containing cemented material which is Ex.P­6; one plastic container which is containing earth control (cemented tiles) which is Ex.P­7; one jacket, shirt, baniyan, pant, underwear having brown stains and one pair of shoes and one pair of socks as given to him by the doctor which are collectively Ex.P­8 and the knife as got recovered by accused Mukesh @ Jurra which is Ex.P­9.

In his cross examination the witness has deposed that he recorded the statement of SI Mahesh Chandra, I/C, Crime Team; Ct. Bal St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 34 Kishan, Crime Team, North West; ASI Ram Kishan and SI Manohar Lal. He has has admitted that he did not tell this fact in his examination in chief but has denied the suggestion that the aforesaid official did not give their statements under Section 161 Cr. P. C. to him and he himself recorded the same of his own. According to him, he recorded the statements of some of them at the spot and some of them were examined in the police station but he is unable to give the dates of statement of respective witness. He has deposed that they remained on 24 hours duty but they often used to go to their house also whenever they get time with the permission of their senior officers. The witness has testified that the accused Sajan was arrested from in front of his house at about 5.55PM but when confronted with the arrest memo of accused Sajan the witness has admitted that the time 4.35 PM as mentioned in the arrest memo Ex.PW21/DX­1. According to him, SI Madan Mohan, Ct. Anil, HC Anil and Ct. Surender were also present when the accused Sajan was arrested. He has admitted that the signature of Ct. Anil, HC Anil and Ct. Surender are missing on the arrest memo Ex.PW21/DX­1. He has testified that departure entry was made in the police station when they left the police station but he does not remember whether the said departure entry was placed on record by him or not. The witness has further deposed that the disclosure statement of accused Sajan was recorded at the place of his arrest and he obtained the signature of Sh. Shyam Lal on the memo of arrest of accused Sajan and it took about 5­7 St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 35 minutes for him to record the disclosure statement of accused Sajan on which he obtained the signature of SI Madan. He has denied the suggestion that accused Sajan did not make any disclosure statement and therefore he did not take signature of his father on the same. PW21 has also deposed that he does not remember the time when he started writing of disclosure statement and when it was finished but states that they reached the house of Mukesh @ Jurra at about 6.45PM, in the evening and all the officials as named above were also accompanied at the house of accused Mukesh @ Jurra. He has denied the suggestion that none of those police officials mentioned above were present during the investigation of this case with him. According to the witness, the accused Mukesh @ Jurra was arrested from inside of his house and at that time the brother of accused Mukesh and two­ three other family members were also present in the house. The witness has further deposed that the house of accused is surrounded by other houses but no public persons were collected when they reached at the house of accused Mukesh @ Jurra and accused Mukesh was standing at the ground floor when they arrested him information of which was given to the brother of accused Mukesh who was present at that time but when confronted with the arrest memo of accused Mukesh @ Jurra the witness has admitted that the information of arrest of accused Mukesh was given to his father Sh. Kishan Lal. According to PW21, the accused Sajan was under the custody of Ct. Anil Kumar. He has denied the suggestion that except himself and SI Madan Mohan, no other police official was present at the time of arrest of St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 36 accused Mukesh but has admitted that he obtained the signature of SI Madan Mohan only on the arrest memo of accused Mukesh @ Jurra. He does not remember the time when accused Mukesh was taken for pointing out the spot but states that both accused Sajan and Mukesh were taken in a government vehicle for pointing out at the same time which was being driven by Constable whose name he does not remember and has clarified that he did not join the said Constable in the investigation nor he recorded his statement. According to the witness, they reached the shop of Karan at around 7.00PM and accused Karan was identified by both the accused persons i.e. Mukesh and Sajan but accused Karan was arrested from his shop and he informed the father of accused Karan who was present at the shop at that time regarding the arrest of Karan. He has denied the suggestion that the accused Karan was not arrested from his shop but when confronted with the arrest memo of accused Karan @ Palak the witness has admitted that the accused Karan was arrested from his house and thereafter he was taken to his shop. He has denied the suggestion that neither they had gone to the house of accused Karan on 10.01.2010 nor he was apprehended on 05.01.2010. PW21 has also deposed that he was present when the recovery was effected from accused Karan and Mukesh and the accused Mukesh got recovered knife at about 7:00 PM from the open wooden rack lying near the wall but the bag was not visible at the time when the accused Mukesh got recovered knife. According to him, the knife was closed when it was got recovered but the knife was having blood stains. He has admitted St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 37 that there are other shops near the shop of Karan which is in the name of his father which shops were open at that time and public persons were available in the market who collected at the spot. According to the witness, he requested the public persons to join the proceeding but none agreed and left the spot without telling their names and addresses. He has denied the suggestion that the knife or the bag containing the aforesaid documents were not got recovered by any of the accused or that the aforesaid knife and the bag containing the documents have been planted upon the accused in order to implicate them in this case falsely. He has admitted that father of Karan Sh. Bishamber Dayal was present at the time of alleged recovery of knife of the bag containing documents and articles and that he was not cited as a witness but voluntarily added that he had refused to join the investigation. He has denied the suggestion that he never went to the spot or that he planted the aforesaid bag upon the accused persons since it was lying with the dead body and after taking the same recovery of the said bag has been shown by him only to connect the accused Karan @ Palak in this case. The witness has admitted that no site plan was prepared at the place where the recovery of knife and the bag was allegedly effected and that that no photograph of the place of recovery was taken. He is not aware if father of accused Karan has made any call at 100 number on 5th and 6th January 2010. He has denied the suggestion that accused Mukesh was lifted on 06.01.2010 from his working place at Chandni Chowk or that he had done the writing work while sitting at the police post.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 38 Statement of the accused/ defence evidence:

After completion of prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to them which they have denied. The accused Mukesh @ Jurra has stated that he has been falsely implicated in the present case. According to him, he had not committed any offence and had been made to sign blank papers under threat and coercion. He has further stated that he is innocent and police has falsely implicated him to solve their pending case. He has not examined any witness in his defence.

The accused Karan @ Palak has stated that he has been falsely implicated in the present and he has not committed any offence. According to him, he was not arrested in the manner as stated by the police witnesses since he was picked from his shop only on 5/6.1.2010 and illegally detained for five days whereas his arrest has been wrongly shows as on 10.1.2010. He has denied having made any disclosure statement and states that he was made sign to blank papers under threat and coercion. According to him, he is innocent and police has falsely implicated him to solve their pending cases.

The accused Karan @ Palak has examined two witnesses in his defence. DW1 Ravi Kumar has deposed that he is working as an employee in a Service Centre shop situated at shop No. 65, DDA Market, Jahangir Puri, Near Kushal Cinema, Delhi which shop belongs to father of the accused Karan @ Palak. According to him, on 05.01.2010 at about 5 PM St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 39 four­five persons came at the shop, some of them were in civil dress and rest were in the police jersey. He has deposed that the said persons came on motorbike make Pulsar and asked him of whereabouts of Karan and also asked who is Karan on which he told them that Karan had gone to purchase some material related to the Service Centre only. The witness has further deposed that the said persons including police officials came again after one hour and again asked where was Karan on which he told them that Karan was standing nearby who was talking to a customer and on his pointing out the said persons who were claiming to be the police officials took Karan along with them on a motorbike. According to DW1, thereafter he called Karan on his mobile phone having number 9555548163 from mobile phone of somebody else and on being asked Karan told him that those police officials made him roaming here and there with them. He has testified that thereafter he again tried to contact Karan after an hour but his phone was going switched off and after closing the aforesaid shop he went to the father of Karan @ Palak who was present at his house at N­30, C­142, Huts, Jahangir Puri, New Delhi­33 and told him that Karan @ Palak had been picked up by the police officials. According to him, on 07.01.2010 those same police officials again came with Karan @ Palak to the aforesaid shop at around 6 - 7 PM and they searched the premises of the aforesaid shop in his presence and many other of the market but the police officials did not find anything incriminating. He has testified that the police officials thereafter went away within 15­20 minutes.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 40

In his cross­examination by the Ldl. Addl. PP for the State the witness has deposed that the service center run by the father of accused Karan is the service center of motor vehicles and he is still working at the said shop. He has admitted that he was not given any document showing that he is working at the said shop of father of the accused Karan. According to him, he is drawing a salary of Rs.3,000/­ per month in cash but he has no proof that he is drawing the said salary as no document is prepared at the time of taking the salary. He has denied the suggestion that he is not working in the service center of father of accused Karan @ Palak or that father of accused Karan @ Palak is having no service center. He does not remember the day of the week fallen on 5.1.2010 and states that when he went to inform the father of Karan regarding taking away the accused Karan by those persons, his father was present at his residence but he is unable to give the address of his residence. The witness DW1 has deposed that he knew the accused Karan for the last two years from the date of incident. He has denied the suggestion that since he does not remember his date of birth and the date of birth of his younger brother and therefore, he is giving the aforesaid date as 5.1.2010 after being tutored by the accused Karan. According to the witness he did not ask the name of the police officials of other persons accompanied them and he had seen only one motorcycle on which the aforesaid five/ six persons came. He is unable to tell whether some of them came on foot or on one motorcycle. He has deposed that he did not go to the police station along with father of the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 41 accused Karan, to inform them about the taking away of Karan @ Palak by five - six police officials. He is not aware whether the accused Karan @ Palak has been falsely implicated or rightly charged in the present case.

DW2 Sh. Bishamber Dayal is the father of accused Karan @ Palak who has deposed that he is a Mechanic by profession and he had a shop at DDA Market, Jahangir Puri, Near Kushal Cinema. According to him, on 05.01.2010 at around 8 PM Ravi Kumar the boy who worked on his shop as an employee came to him at his jhuggi and told him that Karan had been picked up by the police officials and had not returned back on which he took his cycle and went to various police stations of the locality. He has deposed that firstly he went to police station Adarsh Nagar where his son was not found and thereafter he went to police station Mahindra Park and thereafter to police station Jahangir Puri but none of the police stations helped him nor told about whereabouts of his son. The witness has further deposed that he remained in tension for the whole night and was searching his son but could not find him anywhere and on 06.01.2010 in the morning he again went to police station Mahindra Park where the police officials told him that they had not brought his son Karan @ Palak. He has testified that thereafter at around 12:10 PM on being told by somebody he made a call at 100 number from his mobile phone having number 9818943264. He has placed on record the certified authenticated copy of the PCR record is which is Ex.DW2/A showing that he had made a call on PCR at 100 number and St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 42 given them an information that "05.01.10 Ko P.S. Mahindra Park Ke Police Mere Batte Ko Utha Kar Le Gai Thi, Iska Koi Pata Nahi Chal Raha Hai."

The witness has also deposed that thereafter he again made a call at around 1:35 PM on 06.01.2010 itself and made a complaint to police at 100 number of kidnapping that "Mere Batte Ko Name Karan aged 18 years Thin, shallow Ko Do Admi Jo Apne Aap Ko Police Wala Bata Rahe The Black Pulsar Par Kal Shyam Ko 6 baje Le Gai Hai Mere Bette Ka Kuch Pata Nahi Chal Raha Hai." He has placed on record the certified copy of the PCR record which is Ex.DW2/B. The witness has testified that making these calls were useless since none of the police officials came to him and helped him. According to the witness, he came to know about the arrest of his son Karan @ Palak in the aforesaid case in FIR No.76/09 only on 10.01.2010 that too when they had brought his son in a police vehicle and showed him near the Metro Station Jahangir Puri but he was not told that he had been implicated in the two other FIRs bearing No. 88/09 and 05/10. the witness has further deposed that he is a poor person and is visually impaired and had been severely harassed at the hands of the police officials who had falsely implicated his son in the aforesaid cases due to which reason he also made an RTI on 18.08.2010 asking the Assistant Commissioner of Police, PCR, Model Town, New Delhi who had given him a reply dated 16.09.2010 which is Ex.DW2/C collectively.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 43

In his cross­examination by the Ld. Addl. PP for the State the witness has deposed that he used to go to his shop/ service center at about 6 or 7:00 PM after taking pheri whole the day and used to repair the cookers and cooking gas. According to him, Ravi had not come to inform him at his residence and states that Ravi told him at the shop when he went there after the pheri. The witness has deposed that Ravi informed him that two police officials came on black coloured Pulsar but he did not inform him as to from which police station they had come. According to DW2, Police Station Adarsh Nagar is about one km from his service center and he returned to his residence upto 9:00 - 9:30 pm after searching his son in Police Station Adarsh Nagar, Mahendra Park and Jahangir Puri. DW2 has also deposed that Ravi had not given the name of police officials to him who took away his son with them on 5.1.2010. He has testified that he did not make any complaint either in writing or orally to any higher authorities of police regarding taking away of his son. According to the witness, Ravi is working at his center for last four years and he used to pay Rs.2,500/­ apart from the travelling expenses which he gave him sometime Rs.10/­ and sometime Rs. 20/­ daily but he did not maintain any account register for the salary of Ravi Kumar. He has denied the suggestion that he had made two calls on 6.1.2010 at about 12:10 and 1:35 pm only to create evidence showing that his son had been taken away. According to DW2, there was no other case pending against his son Karan before his arrest in the present case and he is not aware on 10.1.2010 as to how many cases were worked out against his St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 44 son. The witness has testified that he had visited the jail to meet his son after 10.1.2010 but he does not remember the dates. He has denied the suggestion that the aforesaid date i.e. 5.1.2010 has been manipulated by him or that nothing such happened on 5.1.2010. The witness has also denied the suggestion that only to create evidence he had wrongly communicated the message on 100 number or that he has giving the aforesaid story falsely in order to save the accused Karan @ Palak being his father. FINDINGS:

I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the evidence on record and the written synopsis/ memorandum of arguments filed on behalf of the parties. First I propose to deal with all the allegations/ averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.

 Sr.         Name of the                              Details of deposition
 No.           witness
Public witnesses:
1.       Ghamandhi Lal          He is the father of the deceased who has deposed on the  
         (PW11)                 following aspects:
                                1. That   he   was   a   Chowkidar   in   Sikandar   Rao,   Uttar  
                                    Pradesh   and   used   to   reside   in   the   Police   Station  

Sikandar Rao itself and on 30.11.09, his son Narender Kumar left the village for Delhi for getting the premium of LIC deposited.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 45

2. That Narender Kumar was wearing a wrist watch and a mobile of Nokia 1200 which was in his name and he took a bag containing two pair of clothes, Rs.5,000/­ and left the village with one Sheovir of his village.

3. That both his son and Sheovir had gone together upto Dhanipur Mandi, Aligarh and Sheovir returned from Dhanipur Mandi to the village and his son came to Delhi which fact Sheovir informed him.

4. That Narender Kumar did not return the village for three to four days after which he tried to contact his son Narender Kumar but there was no response. He thereafter made efforts to trace him and also contacted brother­in­law of his son Narender who informed him that Narender had not came to him on which he lodged this information regarding Police Station Gandhi Park, Aligarh on 04.12.09.

5. That his son Narender was wearing one brown colour pant, pink colour shirt, black colour jacket and badami colour (light red) shoe, grey colour socks and the phone number of his mobile was 9917583422 which his son Narender took when he came to Delhi.

6. That when he was searching his son he found one "Ishtihar" at Railway station, Aligarh in which he had identified photograph of his son. Thereafter, he alongwith his cousin Puran came to police station Mahendra Park where the cloth, wrist watch, photograph were shown to him which he had identified as belonging to his son Narender Kumar but he does not remember as to how much amount was missing from the bag and his statement was recorded by the Investigating Officer.

He has correctly identified the case property i.e. a wrist watch, one train ticket from Aligarh to Delhi dated 30.11.09, blood stained currency notes of total value of Rs. 2,775/­ which are Ex.P1, P2 & P3 respectively; mobile phone make Nokia 1200 belonging to him and given by him to his deceased son which is Ex.P4; Black colour bag St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 46 bearing the words "OFFICIAL" written on it which as belonging to his deceased son Narender which bag is Ex.P5.

2. Prem Pal (PW12) He is the brother­in­law (Sala) of Ghamandi Lal the father of deceased Narender by relation and has deposed on the following aspects:

1. That co­brother/ Sandu and also the Sala of Ghamandi Lal both reside near his house and on 05.12.09, Ghamandi Lal telephoned him and asked him to call them and to forward a message that his Narender be send home.

2. That when he forwarded this message to Narender co­ brother/sandu of Ghamandi Lal and Mahesh Sala of Ghamandi Lal they told him that Narender S/o Ghamandi Lal had not came to their house, on which he conveyed this message to Ghamandi Lal when he called him again and thereafter Ghamandi Lal came to Delhi on the very next day and told them that Narender had started for Delhi on 30.11.09.

3. That this fact was also communicated by him to his other relatives staying in Delhi and they tried to search for Narender and after some days when they could not locate Narender that is around 20­21 of December, 2009.

4. That they went to police station Mahendera Park to inform the police and Ghamandi Lal showed the photograph of his son Narender to the police and informed them that his son was not traceable, the police told Ghamandi Lal that this boy had been stabbed and his body was found near a petrol pump.

5. That the police also showed a photograph of the deceased which he, Ghamandi Lal, Mahesh and another relative who is the chacha in relation to the deceased identified as that of Narender and clothes of the deceased was also shown to them which were identified by Ghamandi Lal to be belonging to his son Narender.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 47

6. That Ghamandi Lal had told him that Narender was carrying Rs.5,000/­, one mobile phone and two pairs of clothes along with passbook.

3. Mahesh (PW13) This witness is also related to Ghamandi Lal who is the father­in­law of his real sister and Narender was her husband. He has deposed as under:

1. That they received a telephone of Ghamandi Lal on 5­6 December, 2009 that Narender had come to Delhi to file the installment of insurance policy and should be sent back.

2. That his wife who attended the call told him that Narender had not came to Delhi, on which Ghamandi Lal came to Delhi in search of his son Narender and they all also helped him but Narender could not be traced.

3. That Ghamandi Lal again came to Delhi on 21.12.09 after seeing some posters at Aligarh regarding identification of a dead body of missing person and then they all went to police station, Mahendera Park and when they went to police station they showed the photograph of Narender which was with them to the police on which the police told them that the person in the photograph had been stabbed to death on 01.12.09.

4. That the police also showed the photograph of the dead body of Narender which was identified by him, Ghamandi Lal, Prem Pal, Puran and other persons who had gone with them.

5. That they were also shown the clothes which were worn by Narender at that time which clothes were identified by Ghamandi Lal as that belonging to Narender which he wearing at that time when he left Aligarh.

4. Rajpal (PW14) This witness has deposed on the following lines:

1. That he was working with one Pradeep, a Cable Operator as his assistant and one Sajan who is a resident of G­1624, Jahangir Puri had come to their office on 01.12.09.

2. That his mobile had stopped working and on that day Sajan gave one mobile to him and told him that he St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 48 could use it and he kept this mobile make Nokia 1200 of black/ sleti colour for one day and used the same.

3. That he returned the mobile phone to Sajan to the next day i.e. 02.12.09 as his personal mobile has already been repaired at that time.

4. That the number of his mobile connection was 9891871503 on which he operated the same for one day but he returned the said mobile phone to Sajan at 12.00 noon.

5. That on 09.01.10 some police officers from Police station Mahendra Park came to him and made enquiries about the mobile phone, then he told them that he had used this mobile phone Nokia 1200 for one day after taking it from Sajan and the said phone had been returned to Sajan and his statement was also recorded by the police on the same day.

He has correctly identified the phone make Nokia 1200 mobile as the same which was used by him for one day which phone is Ex.P4. It has been observed by this Court that the IMEI No of mobile is 359842/01/758647/2 (as that of Ghamandi Lal).

5. Kishan Lal This witness has deposed on the following aspects:

(PW15) 1. That he was running a pan shop and on 09.12.09 in the area and one boy Sajan who often used to come to his shop to purchase gutka came to him and told him that he wanted to sell the mobile phone make Nokia of black/slati colour but the witness told Sajan that he did not want to purchase and also told him that his telephone was not working hence he (Sajan) gave that mobile phone to him and told him that he could use it four to five days.

2. That his mobile connection of Idea was having number 9891892014 and he used this mobile phone on his connection for about four days but on 14.12.09, Sajan came to him at about 2:00 PM and asked him to return and accordingly he returned the same.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 49

3. That he is not aware as to who was owner of the mobile phone but he only used the same for about four days.

4. That on 07.01.10, police officer from police station Mahendera Park came to him to enquire about the mobile phone and his statement was recorded on the same day.

He has correctly identified the mobile set make Nokia 1200 as the same which was used by him for four days which phone is Ex.P4. It has been observed by this Court that the IMEI number of mobile is 359842/01/758647/2.

6. Baya Singh This witness has deposed as under:

(PW16) 1. That he is running a shop of namkeens at I­27, Mahendera Park and Rajpal S/o Sh. Kalyan Singh is a resident of his village Rai ki Pali, Goth Chorauha, District Bhind, Madhya Pradesh and is a resident of Jahangir Puri.

2. That Rajpal is working with Pradeep, Cable operator and was previously working with him and had obtained the SIM No. 9891871503 on his name and his address which he was using.

3. That the officers from police station Mahendera Park had come to him for investigation in this case on 05.01.10 and recorded his statement on the same day. Medical evidence/ witness:

7. Dr. V.K. Jha This witness has proved having conducted the postmortem (PW9) on the dead body of one unknown person aged about 26­27 at about 12.00 noon on 15.12.09 which body was sent by Inspector Jawahar Singh and identified Ct. Kannu vide postmortem report Ex.PW9/A. He has proved the following aspects:

1. That the cause of death in this case was hemorrhagic shock as a result of injury to heart consequent to stab wounds inflicted by other party and all injuries were antemortem in nature and Injury No. 2 was sufficient to cause death in ordinary course of nature.

2. That the blood gauze piece were sealed with the sample seal and time since death was approximately 15 days. St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 50

3. That an application was filed by the Investigating Officer seeking opinion of injury caused by knife and corresponding cut mark on the clothes on the deceased and on 28.02.10, he perused the application and in reference to the said application he received two sealed packets with the seal of JS and on opening the same it found to contain clothes after which he examined the clothes and opined that the cut mark on the shirt and baniyan were consistent in the injuries mentioned on above said postmortem report.

4. That on opening other parcel which was duly sealed it found containing one knife and he prepared the sketch of knife which is Ex.PW9/B and after examining the said knife, he opined that injury no. 2 mentioned in the aforesaid PM report has been caused by this weapon i.e. knife or similar such weapon.

5. That the aforesaid clothes and knife were sealed with the seal of mortuary of the hospital and his detailed report in this regard is Ex.PW9/C. Police/ official witnesses:

8. HC Sushil Chand He is a formal witness being Duty Officer who has proved (PW1) having recorded the copy of the FIR which is Ex.PW1/A and having made his endorsement on the rukka which is Ex.PW1/B.

9. SI Manohar Lal He is the draftsman who has proved having prepared the (PW2) scaled site plan which is Ex.PW2/A.

10. HC Naresh (PW3) He is also a formal witness who has proved having recorded the DD No. 2A copy of which is Ex.PW3/A.

11. SI Mahesh He is the Crime Team Incharge who has proved having Chander (PW4) inspected the spot of incident and having prepared the crime team report which is Ex.PW4/A which he had submitted to the Investigating Officer. He has clarified that in the said report the time of call has been inadvertently mentioned as 12:45 PM on the first line instead of 12:45 was (midnight) and therefore, the same may be read as 12:45 was (midnight).

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 51

12. HC Vijay Singh He is the MHCM who has proved the various entries in (PW5) register No. 19 which are Ex.PW5/A to Ex.PW5/C vide which the case property was deposited in the Malkhana and the RC copy of which is Ex.PW5/D vide which the exhibits of the case were sent to FSL.

13. Ct. Bal Kishan He is the photographer posted in the Crime Team and has (PW6) proved having taken the photographs of the spot which are Ex.PW6/A­1 to Ex.PW6/A­10.

14. Husain M. Zaidi He is the Authorized Signatory from Idea Cellular Ltd. UP (PW7) (West Circle) who has proved the ownership and call details of mobile No. 9917583422 from 24.08.09 to 11.06.10 which is in the name of Sh. Ghamandi Lal which call details are Ex.PW7/A1 to Ex.PW7/A7. He has also placed on record the true copy of the customer application form in the name of Sh. Ghamandi Lal with regard to the aforesaid mobile number which is Ex.PW7/B; identity card of election commission in the name of Ghamandi Lal in support of the residential address and his identity is Ex.PW7/C running into two pages and the certificate under Section 65 B Evidence Act which is Ex.PW7/D.

15. Ajit Singh (PW8) He is the Assistant Nodal Officer from Idea Cellular Ltd.

Delhi Circle who has proved the ownership and call details of mobile phone no. 9891892014 which is in the name of Krishan Lal from 15.11.09 to 04.01.10 which call details are Ex.PW8/A­1 to Ex. PW8/A­8. He has placed on record the true copy of the customer application form in the name of Sh. Krishan Lal with regard to the aforesaid mobile number which is Ex.PW8/B; photocopy of Driving License in the name of Krishan Lal in support of the residential address and his identity which is Ex.PW8/C. This witness has further proved the ownership and call details of mobile phone no. 9891871503 which is in the name of Waya Singh from 15.11.09 to 04.01.10, which call details are Ex.PW8/D­1 to Ex. PW8/D­15; true copy of the customer application form in the name of Sh. Waya Singh with regard to the aforesaid mobile number which is St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 52 Ex.PW8/E; photocopy of Voter ID card in the name of Waya Singh in support of the residential address and his identity which is Ex.PW8/F and the certificate under Section 65 B Evidence Act which is Ex.PW8/G.

16. Ct. Sanjeev Kumar He is a formal witness who has proved that on 3.3.2010 he (PW10) had taken the exhibits of the case to the FSL Rohini vide RC No. 13/21/10 and deposed the same with FSL Rohini vide memo No 438 after which he handed over the receipt, memo and copy of RC to MHCM. He has also proved that the exhibits were not tampered with during the period it remained in his custody.

17. Kennedy Siwal He is the Assistant Branch Manager of LIC of India (PW17) Wazirrpur Branch who has proved the status report of police No. 123179948 which is in the name of Narender Kumar S/o Sh. Ghamandi Lal, R/o House No.1392, Block A, Jahangirpuri, Delhi which is Ex.PW/17/A. He has identified the notice along with inland letter card issued from LIC of India which notice is Ex.PW17/B and according to the witness, was issued to the policy holder Narender Kumar which notice is having the policy number and other details of the policy and same was issued to the policy holder in the aforesaid inland letter card vide Ex.PW17/C.

18. HC Sunil Kumar This witness has proved that on the intervening night of (PW18) 30.11.2009 and 1.12.2009 at around 12 midnight he received a call on 100 number regarding lying of an unconscious person under the tree on the footpath. He has proved having filled in the relevant column of the PCR form which is Ex.PW18/A.

19. Ct. Kannu Panwar This witness was posted in the Police Station Mahendra (PW19) Park at the relevant point of time and had gone to the spot along with ASI Ram Kishan. This witness has proved having taken the rukka to the Police Station and having got recorded the FIR. He has proved the following documents:

                                Ex.PW19/A         Seizure   memo   of   Rs   2775/­,   one   railway  
                                                  ticket   from   Aligarh   to   Delhi   dated  


St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park                                Page No. 53 
                                                  30.11.2009 and one wrist watch having the  
                                                 chain of Rado Quartez  recovered from the  
                                                 body of the deceased
                                Ex.PW19/B        Seizure memo of clothes of the deceased

20.      SI Ram Kishan          He is the initial Investigating Officer who has proved the  
         (PW19)                 following documents:
                                Ex.PW20/A        Rukka
                                Ex.PW20/B        Application for preserving the dead body

21. Inspector Jawahar He is the subsequent Investigating Officer and apart from Singh (PW21) the documents proved by the various witnesses, he has proved the following documents:

Ex.PW21/A Seizure of blood samples and earth control Ex.PW21/B Brief facts Ex.PW21/C Death report Ex.PW21/D Request for postmortem Ex.PW21/E Statement of ASI Ram Kishan regarding identification of the dead body Ex.PW21/F Statement of Ct. Kannu regarding identification of the dead body Ex.PW21/G Receipt of cremation of dead body Ex.PW21/H Hue and Cry notice Ex.PW21/I Disclosure statement of accused Sajan (juvenile) Ex.PW21/J Seizure memo of mobile phone Ex.PW21/K Disclosure statement of accused Mukesh @ Jurra Ex.PW21/L Disclosure statement of accused Karan @ Palak Ex.PW21/M Pointing out memo of the spot of incident by accused Mukesh and Sajan Ex.PW21/N Sketch of the knife St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 54 Ex.PW21/O Seizure memo of knife Ex.PW21/P Arrest memo of accused Mukesh @ Jurra Ex.PW21/Q Personal search memo of accused Mukesh Ex.PW21/R Arrest memo of accused Karan @ Palak Ex.PW21/S Personal search memo of accused Karan Ex.PW21/T Seizure memo of black colored bag, LIC documents in the name of Narender Kumar bearing his photograph and certain other document of Havells company along with the card of the same company Ex.PW21/U Pointing out memo of the place of occurrence by accused Karan @ Palak Ex.PW21/V Application for seeking opinion of the knife Ex.PW21/W Site plan Ex.PW21/X FSL Report Ex.PW21/Z1 DD No. 5­A Ex.PW21/Z2 DD No. 6A Now coming to the microscopic evaluation of the evidence on record against the accused.

Ocular Evidence:

Ocular evidence/ eye witness count is the best evidence in any case. In the present case there is no direct/ ocular evidence against the accused and the entire evidence on record is circumstantial. Circumstantial Evidence:

The case of the prosecution is that vide DD No. 2­A they had received an information regarding a dead body lying near the Metro Pillar No. 122­123 and when they went to the spot they found the dead body of a St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 55 young boy lying in a pool of blood with wounds on the chest. On the casual search of the body Rs.2,775, one railway ticket dated 30.11.2009 from Aligarh to Delhi and one wrist watch make Rado (local) were found which were taken into possession and duly seized vide seizure memo Ex.PW19/A. In order to establish the aforesaid SI Mahesh Chander has been examined as PW4 who has proved the Crime Team Report which is Ex.PW4/A which report was prepared at 12:45 AM (midnight). Perusal of the said report shows that it was a homicidal death by stab injury and one golden wrist watch of Rado (local), Rs.2,275/­ and a railway ticket from Aligarh to Delhi were found on the dead body but no chance prints could be traced. The scene of the crime had been got photographed by a digital camera and the photographs have been duly proved by Ct. Bal Kishan (PW6) who has proved the said photographs which are Ex.PW6/A­1 to Ex.PW6/A­10. I have perused the said photographs which show a stab injury on the chest of the deceased. Further, both the Crime Team Report Ex.PW4/A and the photographs Ex.PW6/A­1 to Ex.PW6/A­10 only shows the dead body lying at the spot but no belongings that is bag containing clothes, cash and documents which the deceased was carrying as per the statement of Ghamandi Lal (PW11) were found lying around the body. Medical evidence:

The postmortem report Ex.PW9/A has been duly proved by Dr. V.K. Jha (PW9) who has proved that the death in this case was as a result of St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 56 Hemorrhagic Shock as a result of injury to heart consequent to stab wounds inflicted by other party. He has also proved that the examination of the clothes of the deceased show that the cut mark on the shirt and baniyan were consistent with the injuries mentioned in the postmortem report and that the knife produced before him Ex.P­9 is compatible with the injury no. 2 which could have been caused by the said weapon or similar such weapon which knife was having special identification mark. There is no reason to disbelieve the testimony of Dr. V.K. Jha more so because the comparison of the sketch of the knife duly proved by the doctor which is Ex.PW9/B and the sketch of the knife prepared by the Investigating Officer which is Ex.PW21/N have been found to be identical and the blade of the knife whose total length was 10.3 cm was sharp from both the sides and is compatible to the size of the injuries so specified in the postmortem report that is 2 x 2 cm x chest cavity deep. The postmortem report Ex.PW9/A shows that on dissection of this injury it was found that it had cut the wall of left ventricle and clotted blood was present in the chest cavity. This injury has been opined to be sufficient in ordinary course of nature to cause death, an aspect which has been duly established by the prosecution. Forensic Evidence:

The FSL report Ex.PW21/X and its findings have not been disputed and have been duly exhibited in the statement of the Investigating Officer Inspector Jawahar Singh (PW21). The weapon of offence that is the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 57 knife which had been got recovered by the accused Mukesh @ Jurra had been sent to FSL for its examination and the report Ex.PW21/X proves the presence of blood on the said knife Ex.P­9. The Ld. Defence Counsel has submitted that when the knife was produced for opinion before Dr. V.K. Jha (PW9) it did not have any blood stains and hence no reliance can be placed on the FSL report. Here, I may observe that in his cross­examination Dr. V.K. Jha has observed that he did not mention any blood stains present on the knife in the sketch diagram Ex.PW9/B and has explained that there were no visible stains on the knife and has further stated that the nature of the stains can only be explained by the official from the forensic department. It is not necessary that the blood stains present on the knife should be visible.

The knife Ex.P­9 had been got recovered by the accused Mukesh @ Jurra at the time of arrest which is after almost one month of the incident and hence the possibility of there being visible stains present on the knife is remote and perhaps it is for this reason that the FSL report only shows that blood was detected on the said knife but not the blood group. The said knife having been got recovered by accused Mukesh @ Jurra and he does not explain the presence of blood on the same. Therefore, under these circumstances, I hereby hold that the prosecution has successfully connected the injury present on the body of the deceased with the knife recovered at the instance of accused Mukesh @ Jurra.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 58 Motive:

It is settled law that the motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive only strengthens the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.

Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.

In the present case it is evident from the record that the deceased Narender Kumar was not previously known to any of the accused St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 59 being a resident of Aligarh, Uttar Pradesh and had only come to Delhi to deposit the premium of the LIC policy and was a chance victim of the accused. The accused Karan @ Palak has not been able to successfully explain the possession of the bag of the deceased containing his policy document and other papers and in his statement under Section 313 Cr.P.C. when this material was specifically put to him, he simply denied the same. In the present case during the course of investigations, pursuant to his disclosure statement the accused Mukesh @ Jurra got recovered the knife allegedly used by him in the commission of the offence and the accused | Karan @ Palak got recovered the bag belonging to the deceased containing the articles belonging to the deceased the details of which were provided to the police by Ghamandi Lal the father of the deceased even before the apprehension of the accused and both of them are unable to explain the possession of the same. This being the background the motive of the offence being robbery simplicitor cannot be ruled out. Disclosure statements of the accused:

The entire case of the prosecution revolves around the disclosure statement of the accused Mukesh @ Jurra, Karan @ Palak and Sajan (juvenile) while they were in Police Custody followed by recovery of the stolen mobile phone at the instance of Sajan (juvenile); bag containing the clothes and LIC policy in the name of the deceased at the instance of accused Karan @ Palak and the recovery of weapon of offence that is knife St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 60 at the instance of accused Mukesh @ Jurra.

Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.

Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:

1. Anything, state of things, or relation of things, or capable of being perceived by the senses,

2. Any mental condition of which any person is conscious.

It further provides five illustrations as to what would constitute a fact which are as under:

(a) That there are certain objects arranged in a certain order in a certain place, is a fact

(b) That a man heard or saw something, is a fact.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 61

         (c)      That a man said certain words, is a fact.

        (d)      That a man holds a certain opinion, has a certain intention,  

acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation, is a fact.

A co­joint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".

The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 62 place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. King­Emperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under:­ "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"

".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.

27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 63 connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."

"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.

This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"

After considering the settled principles the Hon'ble Apex Court observed as under:

"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 64 statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 65 show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.

Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evident Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:

"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.

The essential ingredient of the Section is that the information given by the accused must led to the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 66 discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.

In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 67

Now applying these principles to the facts of the present case it is evident that the principles so enunciated squarely apply to the facts of the present in hand where the stolen mobile phone of the deceased was kept under surveillance and it was on account of the use of this stolen mobile belonging to the father of the deceased which was being used by the deceased Narender and was kept under surveillance by the police, that the Investigating Officer could reach the accused Sajan (juvenile) who during interrogation gave information to the Investigating Officer vide his disclosure statement Ex.PW21/I that he along with his associates Mukesh @ Jurra and Karan @ Palak had committed many incidents of robbery at GTK Road and on many occasions the victim often used to raise an alarm and therefore being apprehensive of getting caught, his associate Mukesh @ Jurra got a buttondar knife after which they used to show this knife to the victims and commit robberies. He further disclosed that on 30.11.2209 he along with Mukesh @ Jurra and Karan @ Palak were standing near Sandhu Petrol Pump with they saw one boy coming on foot from Azadpur side on the patri on which he and Karan @ Palak caught hold him while Mukesh @ Jurra showed him a knife and tried to snatch his bag but the said boy started raised alarm on which he (Sajan) and Karan @ Palak abused him and told Mukesh @ Jurra to stab him pursuant to which Mukesh @ Jurra gave him many blows on his chest with the knife and snatched his bag after which they threw the injured on the patri. Later when they checked the bag they found the clothes, Rs.2,000/­ and a mobile phone which they distributed St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 68 between them. Rs.500/­ and the mobile phone came in his share and Rs. 750/­ each fell in the share of Mukesh @ Jurra and Karan @ Palak after which they removed the clothes from the bag and threw at the spot of occurrence and the bag after checking was kept by Karan @ Palak. He thereafter told the Investigating Officer that he had spent the cash amount but the mobile has been kept in his house which he could get recover and he could also get his associates Mukesh @ Jurra and Karan @ Palak apprehended. "....Jo rupay main­ne kharch kar diye they va mobile phone main­ne apne ghar me chipa rakha hai jiski main nishandehi karke baramad kara sakta hoon tatha apne saathi Mukesh@ Jurra, Karan @ Palak ki talash karakar une pakarva sakta hoon...". Pursuant to the aforesaid disclosure the accused Sajan (juvenile) took the police team to house No. H­4/1563, Jahangir Puri that is the residence of Mukesh @ Jurra where he identified the accused Mukesh as the person who had inflicted knife injury to the deceased. This portion of the statement of accused Sajan (juvenile) Ex.PW21/I that he could lead the police to his associate Mukesh @ Jurra which is discovery of a named person from whom the knife used in the commission of murder of the deceased while committed robbery was recovered. It is this part of statement of Sajan Ex.PW21/I leading to the identification and apprehension of accused Mukesh @ Jurra which is relevant and admissible in evidence apart from the portion of his statement leading to recovery of the stolen mobile phone St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 69 of the deceased Narender.

Similarly after Mukesh @ Jurra was apprehended and interrogated he made a disclosure statement with regard to his involvement in the present case along with his associates Sajan (who was already in the custody of police at that time) and Karan @ Palak. In his disclosure statement Ex.PW21/K he told the Investigating Officer that he had spent the money which came into his share and the knife used by him at the time of the incident had been hidden by him in the shop of Karan @ Palak which he could get recovered. He also stated that he can also get his associate Karan @ Palak apprehended. "... Jo rupay main­ne kharch kar diye hain. Vaardaat mein istmaal chakoo main­ne Karan @ Palak ki dukaan mein chipa kar rakha hua hai jiski main nishandehi karke baramad kara sakta hoon va apne saathi Karan @ Palak ko pakarva sakta hoon...". Pursuant to the aforesaid the accused Mukesh @ Jurra took the police party to the shop of the accused Karan @ Palak from where he got the knife used by him in the incident recovered from under the rack kept in the shop of Karan @ Palak at shop No. 65, G­Block, DDA Market in front of school, Jahangir Puri, Delhi which knife was duly seized by the Investigating Officer vide memo Ex.PW21/O. This portion of the statement of accused Mukesh @ Jurra Ex.PW21/K that he could lead the police to his associate Karan @ Palak which is discovery of a named person from whom the bag of the deceased allegedly robbed at the time of the incident could be recovered. It St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 70 is this part of statement of Mukesh @ Jurra Ex.PW21/K leading to the identification and apprehension of accused Karan @ Palak which is relevant and admissible in evidence apart from the portion of his statement leading to recovery of the knife i.e. weapon used in commission of the offence.

Similarly, it was on the pointing out of the accused Mukesh @ Jurra that the accused Karan @ Palak was arrested from his shop and pursuant to his arrest Karan @ Palak made his disclosure Ex.PW21/L regarding the incident dated 30.11.2009 and the fact that he could get the bag belonging to the deceased recovered "... Rupay main­ne kharch kar diye hain va bag main­ne apni dukaan mein chipa kar rakha hua hai jiski main nishandehi karakar bag baramad kara sakta hoon...". Pursuant to the above disclosure the accused Karan @ Palak got the bag of the deceased recovered from his shop containing the photograph of the deceased, letter sent by LIC and the receipt of the LIC bearing the name of the deceased that is Narender Kumar S/o Ghamandi Lal with the address of House No. 1392, A­Block, Jahangir Puri­110033; which were seized vide memo Ex.PW21/T. Further, the said documents of the LIC have been duly proved by PW17 Sh. Kennedy Siwal, Assistant Branch Manager from LIC of India Wazirpur Branch and hence it is this portion of this statement which would be relevant and admissible.

Ld. Defence Counsel has vehemently argued that the disclosure statements of the accused are inadmissible in evidence because there is no St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 71 discovery of fact connecting the accused with the alleged incident. I am not able to convince myself with the argument put forward by the Ld. Defence Counsel in view of the specific observations made by the Hon'ble Supreme Court in the case of Jaffar Hussain Dastagir Vs. State of Maharastra (Supra) that the statement of the accused naming a particular person and the place where the robbed articles and the weapon of offence used in the commission of offence is kept pursuant to which the person so named has been discovered and identified by the maker of the statement, is discovery of a fact and the disclosure statements of the accused would be admissible in evidence to the said extent. In the present case the bag got recovered by the accused Karan @ Palak from his shop has been connected to the deceased. Not only has the said bag been identified by the father of the deceased but the LIC receipt in the name of the deceased recovered from the said bag has been duly proved by independent witness PW17 Sh. Kennedy Siwal, Assistant Branch Manager from LIC of India Wazirpur Branch. Further, the weapon of offence duly recovered by accused Mukesh @ Jurra pursuant to his disclosure has also been connected with the offence in question. Dr. Bhim Singh has duly proving that the cuts found on the clothes of the deceased were matching with the place where in the injuries have been inflicted and further opining that the vital injuries present on the body of the deceased are compatible to the weapon of offence that is the knife so produced before him (which was the same knife proved to have St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 72 been got recovered by accused Mukesh @ Jurra). Hence, under these circumstances, I hereby hold Firstly that the arrest of the accused Mukesh @ Jurra was a direct outcome of the information given by the Sajan (juvenile) leading to his identification and apprehension at the instance of Sajan and the recovery of the knife Ex.P­9 by the accused Mukesh @ Jurra was the direct outcome of the information given by accused Mukesh @ Jurra vide his disclosure statement Ex.PW21/K. Secondly the arrest of the accused Karan @ Palak was the direct outcome of the information given by Mukesh @ Jurra leading to his identification and apprehension at his (Mukesh) instance. Thirdly the recovery of the bag and the receipts regarding LIC policy belonging to the deceased was the direct outcome of the information given by accused Karan @ Palak vide his disclosure statement Ex.PW21/L. Fourthly it is these portions of the statements given by Sajan, Mukesh @ Jurra and Karan @ Palak which distinctly connected with the recovery of the weapon of offence and articles belonging to the deceased, are admissible qua the accused Mukesh @ Jurra and Karan @ Palak. Lastly the "fact so discovered" relates to the commission of offence of robbery and murder of the deceased Narender and therefore the embargo on the statement of the accused before the police officers will not apply to the disclosure statements of the accused Mukesh @ Jurra and Karan @ Palak about the incident, thereby completing the chain of evidence. St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 73 Recovery of the mobile phone of the deceased and the use of the stolen mobile phone:

The case of the prosecution is that after having committed the robbery, the mobile phone of the deceased came in the share of accused Sajan (juvenile) who thereafter made efforts to sell the same but he could not succeed in the same. During this period the phone was used by two persons of the same area to whom the accused Sajan had tried to sell the mobile.

PW11 Ghamandi Lal has proved that the number of his mobile phone was 9917583422 which was being used by his son Narender Kumar (deceased) when he came to Delhi. PW7 Hussain M. Zaidi the Authorized Officer from Idea Cellular Ltd. UP (West circle) has duly proved the fact that Ghamandi Lal was the user of mobile connection bearing No. 9917583422. He has placed on record the call details record of the said mobile phone from 24.8.2009 to 11.6.2010 which are Ex.PW7/A­1 to Ex.PW7/A­7 and further placed on record the customer application form in the name of Ghamandi Lal which is Ex.PW7/B along with the address and identity proof which are Ex.PW7/C. The entire testimony of Hussain M. Zaidi (PW7) has gone uncontroverted and it stands established that the above connection was in the name of Ghamandi Lal. PW11 Ghamandi Lal has proved that when his son Narender (deceased) was coming to Dehi he had given this mobile to him for his use which mobile was not found on the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 74 body of the deceased when recovered by the police. Further, Rajpal (PW14) who is working with one Pradeep (Cable Operator) as assistant, has proved that Sajan who is a resident of G­1624, Jahangir Puri had come to their office on 1.12.2009 and had given him a mobile phone make NOKIA 1200 of Black/ Saleti (Grey) colour for one day and accordingly he used the same because his own telephone was out of order. Rajpal (PW14) has further proved that he used the said mobile on his connection bearing no. 9891871503 for one day and returned the phone to Sajan at 12:00 noon on the next day. He has further proved that later when the police came to him, he hold them that he had used the said mobile which had been given to him by Sajan. The witness has duly identified the mobile phone which is Ex.P4 bearing IMEI No. 359842/01/758647/2 (same as the IMEI number of the phone belonging to Ghamandi Lal). The Call Detail Records Ex.PW7/A­1 to Ex.PW7/A­7 prove the use of above phone for one day that is 1.12.2009 to 2.12.2009. Further, the witness Baya Singh (PW16) has duly proved that Rajpal (PW14) had obtained a SIM No. 9891871503 on his name and address which he had been using since Rajpal belong to his own native village. These aspects have gone uncontroverted and therefore stand established.

PW15 Kishan Lal who is running a Paan Shop and had used the mobile phone between 9.12.2009 to 14.12.2009, has deposed that it was Sajan who often used to purchase Gukta came to him and told that he St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 75 wanted to sell a mobile phone make NOKIA of black/ saleti (Grey) colour. He has proved that he told Sajan that he did not want to purchase the said mobile hone but since his own telephone was out of order, therefore, he used the said mobile on his Idea connection bearing no. 9891892014 and returned the same to Sajan on 14.12.2009. he has duly identified the said mobile phone in the Court which is Ex.P­4 bearing IMEI No. 359842/01/758647/2 (as that of the mobile phone of Ghamandi Lal).

The call detail records along with the certificate under Section 65­B Evidence Act proves that the IMEI number of the phone of the deceased duly tallied with the various SIM connection used from time to time leading the investigating team to the accused Sajan who vide his disclosure statement led them to the accused Mukesh @ Jurra and Karan @ Palak. It stands established that the mobile phone bearing IMEI No. 359842/01/758647/2 belong to Ghamandi Lal which was being used by his son Narender Kumar (deceased) which mobile was missing when the body of Narender was recovered and this mobile was found in possession of Sajan (juvenile) and during the said period had been used by Rajpal and Kishan Lal and it was these persons who led the Investigating Officer to Sajan (juvenile) who in turn disclosed his involvement in the present case and the led the Investigating Officer to the accused Mukesh @ Jurra and Karan @ Palak.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 76 Recovery of the LIC Policy in the name of the deceased stands established:

The case of the prosecution is that the deceased had come to Delhi to deposit the premium amount in respect of the policy no. 123179948 in his name which documents were present in his bag which he was carrying and had been snatched by the accused and thereafter recovered at the instance of the accused Karan @ Palak. In this regard the testimony of PW17 Sh. Kennedy Siwal, Assistant Branch Manager from LIC of India Wazirpur Branch is very categorical. He has produced the summoned record/ status report in respect of policy no. 123179948 in the name of deceased Narender Kumar S/o Ghamandi Lal which is Ex.PW7/A and also proved the notice issued by LIC of India which is Ex.PW7/B. He has further proved that the inland letter card Ex.PW17/C was issued to the police holder that is deceased Narender Kumar having the policy number and other details of the policy. Therefore, it stands established from the testimony of Ghamandi Lal (PW11) the father of the deceased that his son Narender Kumar had come to Delhi to deposit the premium of the policy which was pursuant to the notice issued to him by the LIC vide Ex.PW17/B and Ex.PW17/C which documents of the policy had been recovered from the black coloured bag containing the said policy details and also the documents of Havells Company thereby connecting the accused Karan @ Palak and no explanation is forthcoming on behalf of the accused Karan @ Palak as to how the bag and documents of the deceased came into his St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 77 possession. I may observe that in his first statement made to the police on 21.12.2009 (even before the apprehension of the accused) Ghamandi Lal told to the police that he son Narender was carrying a black coloured bag containing documents of his LIC premium in view of the demand raised by the LIC and Rs.5,000/­ for purposes of depositing towards the LIC premium. He has also informed the police that on 4.12.2009 he had lodged a missing report at Police Station Gandhi park, Aligarh, Uttar Pradesh and also the mobile phone make NOKIA 1200 with a SIM No. 9917583422 and also reported that the said articles including the bag, mobile phone containing the aforesaid SIM number and Rs.2,000/­ were missing. The only defence offered by the accused Karan @ Palak is that the said bag of the deceased had been planted upon him by the police to falsely implicate him in the case which does not appear to be probable. At the time when the dead body of the deceased was recovered from the footpath it was unclaimed. The Crime Team report Ex.PW4/A and the photographs Ex.PW6/A­1 to Ex.PW6/A­10 does not show the presence of the bag at the spot where the body was recovered. It therefore stands established that this black coloured bag was not recovered from the place where the body of the deceased was found and the evidence on record is very conclusive and points out towards the recovery of the same at the instance of the accused Karan @ Palak.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 78

Ld. Defence Counsel has vehemently argued that despite the presence of the public witnesses, none of them have been joined in the investigations. He has argued that the father of the accused had made a PCR call informing them that has son had been lifted by son persons and also in his deposition before this Court, he has specifically deposed as such. Here, I may observe that Bishambhar Dayal (DW2) is an interested witness and his attempt is to save his son Karan @ Palak from penal consequences. Merely because the public witnesses have not been joined during the investigations would be not reason to disbelieve the police officers on the aspect of recovery since public witnesses particularly neighbours are normally hesitant in joining any kind of proceedings conducted against a person residing in the same area and the benefit of the same cannot go to the accused. Merely because public witnesses have not been joined in the investigations cannot be a ground to throw out the said proceedings. It is only a Rule of Caution and once it stands established that efforts were made to join public witnesses (as evident from the testimony of PW21 Inspector Jawahar Singh) who expressed their unwillingness and went away without disclosing their names and addresses, there is no reason to disbelieve the version given by the police witness and doubt the recovery. I hold that the recovery of the bag containing the LIC papers and documents of the deceased from the accused Karan @ Palak stands established. Here, I may say that technically the offence under Section 411 Indian Penal Code would not separately made out against the person who had committed the robbery St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 79 upon the deceased since the provisions of Section 392 Indian Penal Code also cover theft and hence any recovery of the stolen property from the possession of that very accused who had committed robbery would make him liable for the offence of robbery but not for the offence of receiving the stolen property (Section 411 Indian Penal Code).

Admissibility of evidence of recovery of knife/ weapon of offence at the instance of accused Mukesh @ Jurra:

The case of the prosecution is that in so far as the accused Mukesh @ Jurra is concerned, he is a desperate criminal and is involved in similar cases of robbery and the knife which has been got recovered by the accused Mukesh @ Jurra under the rack of the shop belonging to the father of Karan @ Palak, was the one with which he had stabbed the deceased. Reliance has been placed on the postmortem report of the deceased and the opinion given by the doctor. Ld. Defence Counsel has vehemently argued that no reliance can be placed on the recovery of the knife as the same has been duly planted upon the accused Mukesh @ Jurra and also because no public witnesses have been joined by the police despite an opportunity in this regard. I have considered the rival contentions. At the very outset I may observe that it is an admitted case that no public witnesses have been joined by the police at the time of recovery of the knife by the accused Mukesh @ Jurra despite a number of persons having collected at the spot. In this regard, I may observe that normally public witnesses are hesitant in joining the proceedings carried out by the police particularly if the accused St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 80 happen to be a resident of the same area as is a desperate criminal. Therefore, under these circumstances there would be no reason to disbelieve the testimonies of the police officers and once it stands established that attempt was made by the Investigating Officer to join public witnesses who refused, it would be sufficient and benefit of the same cannot be given to the accused.

Further, it is evident that the accused Mukesh @ Juura had been apprehended pursuant to the disclosure made by the co­accused Sajan (juvenile) and it was the accused Mukesh @ Juura who disclosed that he had stabbed the deceased to silent him since at the time of committing robbery he (deceased) was raising an alarm. The knife so recovered by the accused Mukesh @ Jurra had been produced before Dr. V.K. Jha (PW9) who had conducted the postmortem of the deceased and it is evident from his (PW9) testimony that he had specifically opined the cause of death in the present case as Hemorrhagic Shock as a result of injury to heart consequent to stab wounds inflicted by other party, which injury was sufficient to cause death in ordinary course of nature. He has further proved that on examination of the clothes of the deceased he opined that the cut mark on the shirt and baniyan were consistent with the injuries mentioned in the postmortem report. PW9 Dr. V.K. Jha has also proved that the knife so recovered at the instance of accused Mukesh @ Jurra had been examined by him and he had opined that the injury no.2 as mentioned in the postmortem report has been caused by this weapon that is knife or similar other weapon. He has further St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 81 proved the sketch of the knife prepared by him which is Ex.PW9/B and it is evident that the said sketch tallies with the knife produced in the Court and also with the sketch prepared by the Investigating Officer. In his cross­ examination Dr. V.K. Jha (PW9) has specifically proved that there were special identification marks on the said knife and has also been specified in the sketch prepared by him which is Ex.PW9/B. He has denied a specific suggestion by the Ld. Defence Counsel that such type of knives are often produced before him in such cases and there are no special identification marks or that the injury might have been caused on account of fall on the sharp object. I may also observe that the knife Ex.P9 has been produced in the Court tallies with the sketches and there were specific identification marks in the form its design and three holes on its blade and therefore, it is not difficult for the Doctor to recollect the said knife having given an opinion on the same.

Further, it is evident that the incised wound of 2 cm x 2 cm c chest cavity deep which is compatible to the weapon of offence whose maximum width is hardly 2 cm at its depth. Further, the FSL report Ex.PW21/X has confirmed the presence of blood on the knife which was found to be having blood stains. This being the background, there is no reason to doubt the recovery of the knife at the instance of the accused Mukesh @ Jurra which knife connects him with the injury present on the body of the deceased.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 82 Non conducting of Test identification Parade of the stolen property:

Ld. Defence Counsel has raised an objection that no Judicial Test Identification Parade of the stolen property so recovered from the accused that i.e. mobile phone, black coloured bag containing the LIC papers, documents of Havells Company and the card of the company, has been got conducted. It is argued that under these circumstances the identification of the said articles by the father of the deceased Sh. Ghamandi Lal (PW11) is liable to be rejected and the benefit of the same be given to the accused. I have considered the submissions made before me and in this regard I may observe that the details of the property robbed from the possession of the deceased as above had already been provided to the police by the father of the deceased namely Ghamandi Lal at the first instance which details find a mention in his statement under Section 161 Cr.P.C. including the details of the mobile phone i.e. make and SIM number were also given to the investigating agency. Being a blind case, it is only because the robbed mobile kept on surveillance that there was a break through in the investigations and the assailants could be tracked and apprehended. This being the background, the details already being available with the investigating agency there is no requirement of conducting the judicial Test Identification Parade and I hold that the identification of the aforesaid articles for the first time in the Court will not be fatal to the case of the prosecution.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 83 FINAL CONCLUSION:

In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

Applying the above principles of law to the present case it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. They have proved having gone to the spot of incident. It stands established that on the night of St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 84 30.11.2009 opposite Siddhu Petrol Pump near Metro Pillar No. 122/123, GTK Road, Jahangir Puri, Delhi dead body of the deceased was found lying in a pool of blood with a stab injury on his chest. It stands established that the deceased was identified as one Narender S/o Ghamandi Lal aged 23 years who had started from Aligarh on 30.11.2009 for Delhi to deposit the premium of his LIC policy no. 123179948 which was pursuant to a demand raised by the LIC on 20.3.2007. It further stands established that at the time Narender Kumar came to Delhi he was wearing one brown coloured pant, pink colour shirt, black colour jacket and badami colour (light red) shoes, grey colour socks and Rado (local) wrist watch which articles were identified by his father Ghamandi Lal along with the photograph of his dead body on 21.12.2009 since his body could not be identified for about 21 days and was cremated as such. It also stands established that he was carrying a black coloured bag containing the LIC documents, Rs.5,000/­ and a mobile phone make NOKIA 1200 with IMEI No. 359842/01/758647/2 SIM number 9917583422 in the name of his father Ghamandi Lal which he was carrying for its use in Delhi. It further stands established that the said mobile phone bearing IMEI No. 359842/01/758647/2 was put on surveillance by the police which led them to the accused Sajan (juvenile). It stands established that after the said mobile was put on surveillance it was found to be running on the number 9991871503 in the name of Via Singh since 1.12.2009 to 2.12.2009 and from 9.12.2009 to 14.12.2009 on the number 9891892014 in the name of Kishan Lal @ Bittoo. It further stands established that the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 85 above SIM number had been taken in his name by one Rajpal after which Rajpal was interrogated who in turn informed the police that he had taken the said mobile from one Sajan. It also stands established that Kishan Lal @ Bittoo had used the mobile phone from 9.12.2009 to 14.12.2009 after borrowing the same from Sajan. It further stands established that after the apprehension of the accused Sajan (juvenile), he led them to the accused Mukesh @ Jurra and Karan @ Palak as his associates who were involved in the commission of offence in the present case and also got recovered the mobile phone bearing IMEI No. 359842/01/758647/2 robbed from the deceased. It further stands established that the accused Sajan (juvenile) led the police to the house of Mukesh @ Jurra from where the accused Mukesh @ Jurra was arrested who disclosed that he had kept the knife and bag in the shop of Karan @ Palak after which he led them to the shop of Karan @ Palak from where the accused Karan @ Palak was apprehended and arrested. It has also been established that accused Mukesh @ Jurra got recovered the knife from the wooden rack situated in the shop of Karan @ Palak and the accused Karan @ Palak also got recovered a black coloured bag containing the LIC documents in the name of Narender Kumar bearing his photograph and certain other documents of Havells company along with the card of the said company. It further stands established that cause of death was hemorrhagic shock as a result of injury to heart consequent to stab wounds inflicted by other party and all injuries were antemortem in nature and Injury No. 2 (that is incised wound of 2 x 2 cm x chest cavity St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 86 deep which cut the wall of left ventricle) was sufficient to caused death in ordinary course of nature. It also stands established from the FSL report that the blood stains were present on the knife so recovered by the accused Mukesh @ Jurra. It further stands established that the cut marks on the shirt and baniyan of the deceased were consistent with the injury marks present on the body of the deceased. It also stands established that the fatal injury (injury no.2) could have been caused by the knife got recovered by the accused Mukesh @ Jurra (as per the opinion of the doctor who had been shown the said knife). The use of the knife on a vital organ at the time of commission of the robbery clearly establishes the requisite intent so as to bring the case of accused Mukesh @ Jurra under the provisions of Section 300 Indian Penal Code.

It further stands established that the knife so got recovered by the accused Mukesh @ Jurra which is in violation of the Gazette Notification dated 17.2.1979 bearing No.F.13/203/78­Home (C) providing that any any person found in possession of a knife open or close with any of the mechanical device with a blade of 7.62 or more in length and 1.72 cms or more in breadth, in public places should be regulated. The knife so got recovered by the accused Mukesh @ Jurra is clearly beyond the prescribed notified limits.

There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 87 prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.

In view of the above, I hereby hold the accused Mukesh @ Jurra guilty of the offence under Sections 392 read with Section 397, 302 IPC and under Section 25/27/54/59 of Arms Act for which he is accordingly convicted. In so far as the accused Karan @ Palak is concerned the prosecution has not been able to prove that he had in any manner facilitated the offence of murder and hence benefit of doubt is being given to him (in respect of the offence under Section 302 IPC). Therefore, keeping in view the aforesaid the accused Karan @ Palak is hereby acquitted of the charge under Section 302,394,397 Indian Penal Code and he is held guilty only for the offence under Section 392 Indian Penal Code for which he is accordingly convicted.

Case be listed for arguments on sentence on 21.11.2011.

Announced in the open court                                     (Dr. KAMINI LAU)
Dated: 14.11.2011                                              ASJ­II(NW)/ ROHINI


St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park                      Page No. 88 

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II (NW): ROHINI COURTS: DELHI Session Case No. 1215/10 Unique Case ID No. 02404R0091872010 State Vs. (1) Mukesh @ Jurra S/o Kishan Lal R/o H­4/1563, Jahangir Puri, Delhi (Convicted) (2) Karan @ Palak S/o Bishamber Dayal R/o C­142, H­4, Jahangir Puri, Delhi (Convicted) FIR No.: 76/2009 Police Station: Mahindra Park Under Section: 302/201/394 IPC Date of Judgment: 14.11.2011 Arguments heard on: 21.11.2011 Date of sentence: 30.11.2011 APPEARANCE:

Present: Substitute Public Prosecutor for the State.

Both the convicts in judicial custody.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 89 ORDER ON SENTENCE:

Vide detailed judgment dated 14.11.2011 this Court has held the accused Mukesh @ Jurra guilty of the offence under Sections 392 read with Section 397, 302 IPC and under Section 25/27/54/59 of Arms Act. Further, the accused accused Karan @ Palak has been held guilty of the offence under Section 392 Indian Penal Code.

This unfortunate case relates to the death of one Narender Kumar a young boy of 23 years age a resident of Aligarh, Uttar Pradesh and had come to Delhi on 30.11.2009 for depositing the premium of the LIC Policy pursuant to the demand raised by the LIC and was a chance victim of the accused before this Court who constitute a gang of robbers operating in the area habitually committing such incidents. As per the allegations, when Narender Kumar reached near Sandhu Petrol Pump near Metro Pillar No. 122/123, GTK Road, Jahangir Puri, Delhi and was walking on the footpath. On seeing him coming alone in the lonely area the accused Mukesh @ Jurra, Karan @ Palak and Sajan (juvenile) caught hold of him in order to commit robbery but Narender Kumar started raising an alarm when Karan @ Palak and Sajan (juvenile) caught hold of him while accused Mukesh @ Jurra gave knife blows on the chest of Narender Kumar after which they all snatched the black coloured bag of the deceased and ran away. Narender Kumar expired at the spot and for twenty days his body could not be identified. It was only on 21.12.2009 when the father of the deceased St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 90 namely Ghamandi Lal came to Police Station Mahendra Park, that he identified the photograph and clothes of the deceased to be that of his son. Ghamandi Lal informed the police that Narender Kumar had started for Delhi from Aligarh on 30.11.2009 and was carrying a black colour bag containing the documents of the LIC policy, wearing apparels and a cash amount of Rs.5,000/­ and was also having a NOKIA phone model 1200 with SIM number 9917583422 issued in his (Ghamandhi Lal's) name. On receipt of this information the said mobile with IMEI No. 359842/01/758647/2 was put on surveillance and during investigations it was found that the said mobile was running on the number 9991871503 in the name of Via Singh since 1.12.2009 to 2.12.2009 and from 9.12.2009 to 14.12.2009 on the number 9891892014 in the name of Kishan Lal @ Bittoo. The said persons were approached and on inquiries from Via Singh it was revealed that the SIM number had been taken in his name by one Rajpal since he belong to his native village and on interrogation Rajpal informed the police that he had taken the said mobile from one Sajan (juvenile). Kishan Lal @ Bittoo was also interrogated and he informed the police that he had borrowed the said mobile phone from Sajan and used the same from 9.12.2009 to 14.12.2009. Thereafter, efforts were made to search for Sajan and on 10.1.2010 pursuant to a secret information the accused Sajan (juvenile) was arrested who admitted his involvement in the present case and got recovered the mobile phone belonging to Ghamandi Lal and also disclosed the names of his two associates that is Mukesh @ Jurra and Karan @ Palak. The St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 91 accused Sajan thereafter led the police to the house of Mukesh @ Jurra from where the accused Mukesh @ Jurra was arrested who disclosed that he had kept the knife and bag in the shop of Karan @ Palak after which he led them to the shop of Karan @ Palak from where the accused Karan @ Palak was apprehended and arrested. The accused Mukesh @ Jurra got recovered the knife from the wooden rack situated in the shop of Karan @ Palak with which he had stabbed Narender Kumar and the accused Karan @ Palak also got recovered a black coloured bag containing the LIC documents in the name of Narender Kumar bearing his photograph and certain other documents of Havells company along with the card of the said company.

On the basis of the call detail record, testimonies of the various witnesses examined by the prosecution particularly the public witnesses namely Ghamandi Lal (PW11), Rajpal (PW14), Kishan Lal (PW15) and Baya Singh (PW16) and also the circumstantial evidence on record, this Court has held the accused Mukesh @ Jurra guilty of the offence under Sections 392 read with Section 397, 302 IPC and under Section 25/27/54/59 of Arms Act. Further, the accused accused Karan @ Palak has been held guilty of the offence under Section 392 Indian Penal Code. However, he has been acquitted of the charges under Section s 394, 397 and 302 Indian Penal Code.

Heard arguments on the point of sentence. The convict Mukesh @ Jurra is aged about 22 years having a family comprising of five elder St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 92 brothers and four sisters. He is sixth call pass and is a labour by profession. He has already been convicted by this Court in case bearing FIR No. 88/09, PS Mahendra Park, under Section 392/397/34 IPC wherein he has been sentenced to Rigorous Imprisonment for a period of Ten years and fine to the tune of Rs.25,000/­. He is also involved in the following cases:.

1. FIR No. 5/10, PS Mahendra Park, under Section 392/397/34 IPC.

2. FIR No. 40/08, PS Adarsh Nagar, under Section 324/34 IPC.

3. FIR No. 42/08, PS Adarsh Nagar, under Section 457/380/411 IPC.

The convict Karan @ Palak is aged about 20 years having a family comprising of aged parents, one elder brother and two married sisters. He is totally illiterate and is a motorcycle mechanic. He has already been convicted in case FIR No. 88/09, PS Mahendra Park, under Section 392/397/34 IPC wherein he has been sentenced to Rigorous Imprisonment for a period of Five years and fine to the tune of Rs.25,000/­. He is also involved in another case bearing FIR No.5/10, PS Mahendra Park, under Section 392/397/34 IPC.

Ld. Counsels appearing on behalf of the convicts have vehemently argued that both the convicts are young boys and at the time of the incident they were in their early twenties. They request that a lenient view be taken against the convicts.

The Ld. Public Prosecutor has on the other hand, placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 93 in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convict Mukesh @ Jurra. It is also stated that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life. Further, in so far as the convict Karan @ Palak is concerned, he has argued that a strict punishment be awarded to the convict keeping in view the facts and circumstances of the case and also in view of the fact that he is involved in another case of robbery.

I have considered the submissions made before me. At the outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be kept in mind before awarding a death sentence in any given case.

The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic.

(i) The punishment sought to be inflicted for any given offence should be such that the evil St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 94 of the punishment must be made to exceed the advantage of the offence.

ii) The more deficient in certainty a punishment is, the severer it should be.

iii) The greater an offence is, the greater reason there is to hazard a severe punishment for the chance of preventing it, and

iv) Same punishment for the same offence ought not to be inflicted upon all delinquents.

It is necessary to pay some regard to the circumstances which effect sensibility.

However, at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.

I may observe that in the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. The report of National Crime Record Bureau shows St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 95 that in the year 2010 alone, a total number of 51,292 cases were registered out of which 599 cases were of looting/ robbery and 565 cases were of murder. The deteriorating law and order problem in the Capital of the Country is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Under these circumstances the courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Rajiv ­vs­ State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.

Now I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Mukesh @ Jurra is a young boy and belong to very poor family. He is in judicial custody for the last one year and eleven months. The aggravating factors are that the convict Mukesh @ Jurra is involved in as many as three other cases. The convict Karan @ Palak is also involved in one more case and both Mukesh @ Jurra and Karan @ Palak have already St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 96 been convicted in case FIR No. 88/09, PS Mahendra Park, under Section 392/397/34 IPC.

It is evident that both the convicts are desperate criminals. The manner in which the convict Mukesh @ Jurra had used dangerous weapon (knife) upon the victim and killed him with the single blow on his chest and left him on the footpath to die, shows that he has no worth for human life and do not hesitate to take the life of another in case of any resistance. The murder of deceased Narender Kumar hardly aged 23 years had been committed in cold blood without any instigation with the sole intent of monetary gain only because Narender had dared to offer resistance to the convicts. Life of Narender proved cheaper than Rs.2,000/­ and a mobile phone which was robbed by the convicts before this Court.

After having considered the submissions made before me and the various aggravating and mitigating factors and the conviction of Mukesh @ Jurra being based solely on circumstantial evidence, his case does not fall within the category of Rarest of Rare and I therefore, award the following sentence to the convict Mukesh @ Jurra:

1. The convict Mukesh @ Jurra is sentenced to Rigorous Imprisonment for life and fine for a sum of Rs.2,000/­ for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.

St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 97

2. He is also sentenced to Rigorous Imprisonment for a period of Seven years and fine of Rs.2,000/­ for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of fifteen days.

3. In so far as the offence under Section 25/27/54/59 of Arms Act are concerned, the convict Mukesh @ Jurra is sentenced to to Rigorous Imprisonment for a period of Three year and fine of Rs.2,000/­. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of fifteen days.

All the above sentences in this case shall run concurrently and benefit of Section 428 Cr.P.C. shall be given to him for the period already undergone by him during the trial in the present case.

Further, in so far as the convict Karan @ Palak is concerned, he has only been held guilty of offence under Section 392 IPC and has been acquitted of the charge under Section 302 IPC. He is hereby sentenced to Rigorous Imprisonment for a period of Three year and fine to the tune of Rs.2,000/­ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of fifteen days. Benefit of Section 428 Cr.P.C. shall be given to him for the period already undergone by him during St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park Page No. 98 the trial in the present case.

It is clarified that since the convicts Mukesh @ Jurra and Karan @ Palak are reported to be undergoing sentence imposed upon them in FIR No. 88/09, PS Mahendra Park, under Section 392/397/34 IPC the sentence so imposed upon both the convicts in the present case shall run consequent to the completion of the period of sentence imposed upon the convicts in case bearing FIR No. 88/09, PS Mahendra Park, under Section 392/397/34 IPC as per rules.

The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order of sentence be given to both the convicts free of costs and another copy be attached with their jail warrants.

File be consigned to Record Room.

Announced in the open court                                    (Dr. KAMINI LAU)
Dated: 30.11.2011                                              ASJ­II(NW)/ ROHINI



St. Vs. Mukesh @ Jurra Etc., FIR No. 76/09, PS Mahendra Park                       Page No. 99