State vs . on 13 December, 2019

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Delhi District Court

State vs . on 13 December, 2019

   IN THE COURT OF SH. ASHUTOSH KUMAR, ADDITIONAL SESSIONS
              JUDGE04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 58585/2016
CNR No. DLNT010022352015

State               Vs.
                                                   1. Rizwan @ Sonu
                                                   S/o Sh. Deen Mohd.
                                                   R/o Azad Nagar, Seelam Pur Road,
                                                   Sikandarabad, Bulandsahar, U.P.

                                                   2. Ranjeet
                                                   S/o Sh. Sita Ram
                                                   R/o VillageGhosrama, PSHayaghat,
                                                   Dharbhanga, Bihar.

                    FIR No.        : 409/2015
                    Police Station: Alipur
                    Under Sections: 302/34 IPC

Date of committal to Sessions Court : 27/08/2015
Date of institution             : 27/08/2015
Date of Argument                : 04/12/2019
Date of reservation of order    : 04/12/2019
Date on which Judgment pronounced : 13/12/2019

                                         JUDGMENT

1. Briefly stated, case of the prosecution is that on 05/05/2015, at about 4.30 a.m., DD no. 4B was recorded at PS Alipur regarding quarrel at MRF showroom, Seed Farm House, Alipur. The contents of said DD were telephonically conveyed to HC Jitender for taking necessary action. Thereafter on 05/05/2015 at about 6.00 a.m., DD no. 9A was recorded at PS Alipur vide which DD no. 4B was assigned to SI Satish Pandey who along with Ct Dushyant left for the spot. On SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 1 of 52 inquiry, it was revealed that injured had been taken to SRHC Hospital, Narela. On this information, SI Satish Pandey along with Ct Dushyant reached at the said hospital where HC Jitender briefly apprised him about the incident. Injured Deepak was found under treatment vide MLC no. 1465/15, on which, inadvertently name of injured Deepak was found to be written as Ranjeet. In the MLC, alleged history of "physical assault" was mentioned. Injured was opined to be unfit for statement. Opinion on the nature of injury was kept reserved.

2. In the hospital, Ganesh S/o Joori Das (one of the two eyewitnesses to the incident) met them and inquiries were made from him. Ganesh got his statement recorded, wherein he stated that he is permanent resident of Bihar and has been working as 'Munshi' in Deepak Transport, Seed Farm Road, Alipur for the last five years. The said office was situated on the first floor of house of Sukhbir S/o Prem Singh and he is residing in the same house. Besides him, other drivers of Deepak Transport used to take rest in that office after duty. He further stated that yesterday night ( i.e. on 04/05/2015 ), at about 9.00 p.m., when he came to office, at that time, driver Deepak and one handicapped person were also present there. Deepak had started working with their owner since 01/01/2015 and Deepak was brought by (another) driver Ranjeet, who was working there for the last two months. He further stated that he came to know about the name of handicapped person as Sudhir and on inquiry, it was revealed that driver Rizwan @ Sonu who came one week ago for working in Deepak Transport, had brought Sudhir with him. Ganesh has further stated that at about 09.45 p.m., Ranjeet and Rizwan @ Sonu, brought Eicher Canter No. 5565 to the office and they both took Rs. 500/ each from him (Ganesh). He further stated that after taking Rs. 500/ each from him, they both (Ranjeet and Sonu) went for bringing eatable items and after 1520 SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 2 of 52 minutes, they came back to office with fish and other items and asked him to cook food. Ranjeet, Deepak, Sudhir and Rizwan @ Sonu started consuming liquor and till the food was cooked, they continued drinking liquor. Deepak told Ranjeet that on the asking of Ranjeet, he (Deepak) started doing the job here (in transport company) and asked Ranjeet to get advance salary for him. On this, Ranjeet told Deepak that only four days have passed and asked him to wait for sometime and then he will get him the salary and on this issue, verbal altercation took place between them and they started abusing each other. Ganesh further stated that he asked them to calm down and after taking meals, he himself slept on the bed. He further stated that at about 1½2 a.m. night, all four (Ranjeet, Deepak, Sudhir and Rizwan @ Sonu) also took meals and Sudhir slept besides him, whereas Deepak, Ranjeet and Rizwan @ Sonu went for sleeping on other bed. He further stated that Deepak again started talking about advance money and in the meantime, first of all, Rizwan @ Sonu (A1 herein) and Ranjeet (A2 herein) gave legs and fists blows to Deepak and then while telling "abhi ruk jaa, ye salary maangna hee bhool jayega", Rizwan @ Sonu (A1) went downstairs and brought one brick piece in his hand. Ganesh further stated that he (Ganesh) tried to stop Rizwan, but he pushed him and when Deepak had just lied down on the bed, Ranjeet sat on him, overpowered him and Rizwan @ Sonu (A1) struck on the head of Deepak many times with the large brick piece. He further stated Rizwan @ Sonu (A1) went downstairs with the brick in his hand and asked Ranjeet (A2) and Sudhir to come downstairs with the bag. He further stated that he saw that Deepak had sustained severe injury on his head and blood was oozing from his head. Ganesh has further stated that he also ran behind Rizwan @ Sonu (A1), Ranjeet (A2) and Sudhir, but they all three ran away after sitting on Eicher Canter No. DL IM5565, which was being driven by Rizwan @ Sonu (A1). He tried to make call on the SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 3 of 52 phone of his owner, but the phone was found switched off. Then he went to the house of his owner at Village Mukhmailpur on his bike, where he apprised owner Deepak about everything. Deepak (owner) reached at the office in his car and he also came back to office. PCR vehicle came at the spot and took Deepak (injured) to hospital and he also came to hospital in the PCR vehicle. He further stated that inadvertently he stated the name of injured as Ranjeet, whereas his name is Deepak. He further stated that Ranjeet and Rizwan @ Sonu had beaten Deepak.

3. After that, SI Satish Pandey along with Ct Dushyant came back to the spot i.e. first floor, Deepak Transport, 'Sukhbir Ka Makan', Seed Farm Road, where Ct Kapil Sharma was found present. In the transport office, two beds were found lying and blood was found lying on the bed kept in northwest corner and blood stains were also found on the wall. Blood was also found on the table and also at many places on the floor. On the basis of aforesaid statement of Ganesh, DD entry and MLC, offence u/s 308/34 IPC was found to be committed. Accordingly SI Satish Pandey prepared a tehrir and sent Ct Dushyant for getting the FIR registered. Then FIR of the present case was got registered u/s 308/34 IPC.

4. During investigation, spot was got inspected through crime team. Site plan of the place of occurrence was prepared at the instance of complainant Ganesh. Exhibits i.e. one blood stained piece of mattress, bloodstained floor piece & blood in gauze piece were lifted and were taken into police possession.

5. On 05/05/2015, at about 6.30 p.m., at the instance of transporter Deepak Tokas S/o Rajpal Tokas, R/o H.No. 201, Near Union Bank of India, Mukhmelpur, Delhi, accused Md. Rizwan @ Sonu (A1) was arrested in the SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 4 of 52 present case from Alipur, Delhi. He was interrogated and his disclosure statement was recorded, wherein he confessed his guilt. He also disclosed that he had thrown the brick piece with which he hit on the head of Deepak in the 'ganda nala' and that he left Sudhir and Ranjeet at 'Lal Quila' in Eicher vehicle. The brick piece used in the commission of offence could not be recovered. The accused also pointed out the place where he had caused injury to victim Deepak. Pointing out memo was prepared in this regard. Search for accused Ranjeet and Sudhir was also made at 'Lal Quila' but no clue could be found.

6. During further investigation, SI Satish Pandey made inquiries from transporter Deepak. SI Satish Pandey also tried to record the statement of injured Deepak but he was unfit for statement. On 06/05/2015, DD no. 55B was recorded at PS Alipur regarding death of injured Deepak at LJPN hospital. During inquiry, the name of the deceased was revealed as Deepak s/o Mahender, R/o H.No. 58, Gali no. 3, Jeevan Park, Siraspur. His family members were called.

7. SI Satish Kumar Pandey prepared brief facts and filledup Form no. 25.35 (1) (B) and got the postmortem conducted on the body of deceased Deepak. Dead body identification statements of Nand Kishore (brother of deceased) and Sunil Kumar (neighbour of deceased) were recorded. After postmortem, the dead body of deceased was handed over to his brother Nand Kishore vide a separate memo. After postmortem, Dr. Rishi of LNJP hospital handed over exhibits i.e. blood on gauze kept in an envelope sealed with the seal of 'MAMC RSIO', blood for alcohol (test) kept in a plastic box, wrapped with doctor tape and sealed with the seal of MAMC RSIO and two sample seals of 'MAMC RS IO', which were taken into police possession. Clothes of deceased along with sample seal were also SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 5 of 52 seized.

8. During further investigation, inquiries were made from Sudhir @ Langda (who was present at the time of incident) and his statement u/s 161 Cr.P.C. was recorded.

9. On 15/06/2015, investigation of the case was assigned to SI Satish Jasoriya. The exhibits were deposited in the FSL on 15/07/2015. Scaled site plan was got prepared. PCR form was collected as per which PCR call 9212126595 was made by Deepak. During investigation, it was found that inadvertently in the DD entry, mobile number was written as 9212121596. Photographs of the spot, CDRs/CAFs and postmortem report were obtained. As per postmortem report, the cause of death was cerebral damage consequent upon blunt force impact via injury no. 1 which was sufficient to cause death in ordinary course of nature. All injuries were antemortem in nature, caused by blunt force, and that possibility of homicide cannot be ruled out.

10. SI Satish Jasoriya made efforts to search absconding accused Ranjeet (A2) at Delhi and at his native village of Darbhanga, but no clue could be found. NBWs against him (A2) were obtained. Analysis of CDR was done and it was revealed that mobile no. 8130554707 which was in the name of Sita Ram, was used by accused Ranjeet (A2), who was at Alipur in the night of 05/05/2015, at 03:54 a.m. was at Bhalswa Colony, at 5.00 a.m. was at Nizamuddin East Delhi and at 07:27 a.m. was out of Delhi. The aforesaid mobile, having IMEI number 353967040546510 was operational till 07:27:17 hours on 05/05/2015 and then in this handset mobile SIM 8010633474 was operational which is of Ganesh and SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 6 of 52 which was taken by Ranjeet along with him after the incident.

11. On 02/08/2015, the investigation was assigned to Inspector Mahabir Singh, who prepared the chargesheet.

12. On completion of investigation, chargesheet u/s 302/34 IPC was filed against accused Rizwan @ Sonu (A1), whereas accused Ranjeet (A2) was kept in column no. 12, before the concerned Magisterial Court on 03/08/2015 and accordingly cognizance was taken. Thereafter the case was committed to the Court of Sessions on 17/08/2015 and was received on assignment by this Court on 27/08/2015.

13. It is pertinent to mention here that till the filing of the chargesheet, FSL result was awaited.

14. On 15/10/2015, supplementary chargesheet u/s 302/379/411/34 IPC was filed against accused Ranjeet (A2) before the concerned Magisterial Court, which was committed to the Court of Sessions on 20/10/2015 and was received on assignment by this Court on 02/11/2015.

15. Vide order dated 21/12/2015, charge u/s 302/34 IPC was framed against both the accused, to which they pleaded not guilty and claimed trial.

16. On 08/04/2016, FSL result dated 17/03/2016 of biology division was filed before the Court. FSL result of Chemistry division was also filed later on before the Court.

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17. In order to prove its case, prosecution has examined 27 witnesses in all (nomenclature of PW Ganesh was inadvertently given as PW14, whereas it should have been PW15 as PW HC Jitender was already examined as PW14). The details of said witnesses are as under: S.No. Name of prosecution witness Purpose of examination 1 PW1 Dr. Jogendra Kumar, Medical For proving the MLC Ex. PW1/A of injured Officer, SRHC Hospital, Narela, Delhi. Deepak (since deceased).

2 PW2 Nand Kishore, younger brother For proving statement Ex. PW2/A qua of deceased. identification of dead body of deceased and qua receiving the dead body of deceased vide receipt Ex. PW2/B. 3 PW3 ASI Ram Kumar, incharge, For proving crime team report Ex. PW3/A Mobile Crime Team, OD, Delhi. prepared by him.

4 PW4 Ct Mahesh, Crime team For proving photographs of the place of photographer occurrence Ex. PW4/B (colly) and negatives thereof Ex. PW4/A (colly).

5 PW5 Ct Hari Om, concerned DD Who proved attested copy of DD no.4B writer dated 05/05/2015 Ex PW5/A recorded regarding initial information qua quarrel & attested copy of DD no. 55B Ex. PW5/B qua information received regarding death of injured Deepak (since deceased).

6 PW6 Dr. Rishi Solanki, S.R. (Forensic For proving postmortem examination report Medicine), MAMC, New Delhi. Ex. PW6/A. 7 PW7 Deepak Tokas, public witness Who deposed about the factum of employment of injured Deepak, Ranjeet, Rizwan @ Sonu and PW Ganesh in his office, receiving the information about receiving of injuries by Deepak (since deceased) from PW Ganesh, reaching at the spot, removing of the injured Deepak to SRHC hospital, arrest of accused Rizwan @ Sonu at his instance.

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8 PW8 Sunil Kumar, neighbour of For proving statement Ex. PW8/A qua deceased identification of dead body of deceased and qua receiving the dead body of deceased vide receipt Ex. PW2/B. 9 PW9 HC Vinod Kumar, duty officer Who proved attested copy of DD No. 9A Ex. PW9/A. 10 PW10 Yogesh Tripathi, Alternate Who proved the following record: Nodal Officer, Reliance i) Call detail record of mobile no. Communication Limited. 8010633474 for the period from 01/05/2015 to 15/07/2015 & cell ID Chart Ex. PW10/C which was in the name of Ganesh Dass, photocopy of CAF Ex. PW10/A, attested copy of DL Ex. PW10/B and certificate u/s 65B of Indian Evidence Act Ex. PW10/D. 11 PW11 Chander Shekhar, Nodal Who proved the following record: Officer, Bharti Airtel Limited. i) Call detail record of mobile no.

8130554707 for the period from 01/05/2015 to 13/07/2015 Ex. PW11/C which was in the name of Sita Ram, photocopy of CAF Ex. PW11/A, its cell ID chart Ex. PW11/E, copy of election I/Card Ex. PW11/B and certificate u/s 65B of Indian Evidence Act Ex. PW11/D.

ii) Call detail record of mobile no.

9661046064 for the period from 01/05/2015 to 08/10/2015, which was in the name of Maya Devi Ex. PW11/G, KYC form Ex.

PW11/F and certificate u/s 65B of Indian Evidence Act Ex. PW11/H.

iii) Call detail record of mobile no.

8130554766 for the period from 01/05/2015 to 08/10/2015, which was in the name of Vicky Kumar Ex. PW11/K, photocopy of CAF Ex. PW11/J and certificate u/s 65B of Indian Evidence Act Ex. PW11/H. 12 PW12 Sh. Santosh Tripathi, Sr. Proved FSL report (chemical examination) Scientific Officer (Chemistry), FSL, Ex. PW12/A. Rohini, Delhi.

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13 PW13 SI Satish Pandey, First IO Proved the part investigation conducted by him.

14 PW14 HC Jitender, witness to initial Who proved the factum of receiving DD investigation no.4B regarding quarrel, reaching at the spot, visiting SRHC hospital and apprising about the condition of injured to SHO and visit of SI Satish Pandey along with Ct Dushyant at the hospital.

15 PW14 Ganesh (nomenclature of this Qua the incident in question.

witness was inadvertently given as PW14, whereas it should have been PW15) 16 PW15 Sudish, eyewitness to incident Qua the incident in question. 17 PW16 Pritam Singh, public witness Who proved the factum of letting out his the first floor office of ancestral property at Seed Farm Road to Deepak , who was running a transport office in the said tenanted premises.

18 PW17 Ct Dushyant, witness to Who deposed about the initial investigation investigation conducted in his presence by PW13 SI Satish Pandey.

19 PW18 HC Surender, police witness. Who proved the factum of collecting six sealed pullandas and two FSL forms vide two road certificates from MHC(M), depositing the same at FSL and handing over of the acknowledgement of FSL to MHC(M).

20 PW19 ASI Devender Joshi (retired), Who proved computerized copy of FIR Ex.

duty officer PW19/A, his endorsement on rukka Ex.

PW19/B and certificate u/s 65B of Indian Evidence Act Ex. PW19/C. 21 PW20 Ct Anoop Singh, police Who proved the factum of joining the witness investigation with IO Inspector Satish Kumar on 10/09/2015, obtaining of one day PC remand of accused Ranjeet, recovery of one mobile instrument make Samsung without SIM got effected from accused Ranjeet, seizing of the same vide memo SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 10 of 52 Ex. PW20/A and preparation of pointing out memo Ex. PW20/B at the instance of accused Ranjeet.

22 PW21 Inspector Mahesh Kumar, Who proved the scaled site plan Ex.

Draughtsman PW21/A. 23 PW22 Ct Gaurav Kumar, PCR official Who proved PCR form Ex. PW22/A in which information qua quarrel at Seed Farm Road near MRF showroom was recorded.

24 PW23 Inspector Satish, investigating Who deposed about the investigation officer conducted by him.

25 PW24 Ct Ravi Kant, police witness He proved the factum of joining the investigation with SI Satish Kumar, accompanying him to mortuary of LNJP Hospital, getting postmortem conducted on the body of deceased by IO, handing over of sealed exhibits by concerned doctor after the postmortem, seizing of the said exhibits vide memo Ex. PW13/M and handing over of dead body to the relatives of the deceased.

26 PW25 Ct Kapil, police witness Who proved the factum of initially reaching at the spot along with HC Jitender to whom DD no. 4B was marked for taking necessary action and his relieving from the spot after registration of FIR.

27 PW26 ASI Ajay Kumar, the then He proved the relevant entries qua MHC(M), PS Alipur depositing of case property vide Ex.

PW26/A, Ex. PW26/B & Ex. PW26/C in malkhana, sending of some of the case property to FSL Rohini through Ct Surender vide RCs no. 120/21/15 & 121/21/15 Ex.

PW26/D & Ex. PW26/E respectively and depositing of acknowledgments of FSL Ex.

PW26/F and Ex. PW26/G respectively.

18. After completion of prosecution evidence, statements of both the accused persons were recorded u/s 313 Cr.P.C., wherein they have denied the SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 11 of 52 case of prosecution and claimed that they are innocent and have been falsely implicated in this case. However they opted not to lead any evidence in defence.

18.1. Accused Rizwan @ Sonu (A1) has put forth following defence in his statement u/s 313 Cr.P.C.: "I am innocent and have been falsely implicated in this case. Infact, after taking dinner, I went to sleep in the aforesaid vehicle. Thereafter, somewhere in the night, Sudhir came to wake me up and requested me to drop him from where he had come and on his request, I dropped him at Red Fort. I myself made a call to my employer i.e. PW7 Deepak and reached the office, where some police officials were also present, who made enquiries from me. Later on, I myself visited to the PS, where I was detained and falsely implicated in this case. During my police custody, my signatures were forcibly obtained on some blank papers, which were subsequently converted into various incriminating documents against me."

18.2. Accused Ranjeet (A2) came forward with the following defence in his statement u/s 313 Cr.P.C. : "I am innocent and have been falsely implicated in this case. Infact, after taking dinner, I went to sleep in the aforesaid vehicle. Thereafter, somewhere in the night, Sudhir came to wake me up and requested me to drop him from where he had come and on his request, I dropped him at Red Fort. I myself made a call to my employer i.e. PW7 Deepak and reached the office, where some police officials were also present, who made enquiries from me. Later on, I myself visited to the PS, where I was detained and falsely implicated in this case. During my police custody, my signatures were forcibly obtained on some blank papers, which were subsequently converted into various incriminating documents against me."

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19. I have heard ld. APP for the State,Sh. Anuj Arya, ld. Amicus Curiae for the accused Rizwan @ Sonu (A1) and Sh. Arun Yadav,ld. Counsel for accused Ranjeet (A2) and have carefully gone through the material available on record and written submissions filed on behalf of the accused persons.

20. The most important prosecution witnesses to the incident are PW14 Ganesh and PW15 Sudish.

21. PW14 Ganesh (nomenclature of this witness was inadvertently given as PW14, although it should have been PW15 as PW HC Jitender was already examined as PW14) has deposed that he was working as a 'Munshi' with Deepak Transport situated at Seed Farm Road, Alipur, Delhi, since about 5-6 months prior to the occurrence and the said office belonged to his employer Deepak who had taken the same on rent from Sh. Sukhbir S/o Sh. Prem Singh, which was situated on the first floor. He further deposed that he used to reside in the said office even during the night hours and sometimes the drivers and conductors of Deepak Transport Co. also used to take rest in the said office even during the night hours. He further deposed that on 05.05.2015, at about 9 pm, he came to his aforesaid office after completing his work and saw Sudhir (who was handicapped) present in the office. PW14 further deposed that one Deepak (since deceased) joined Deepak Transport Co. 1015 days prior to the occurrence, who was got employed by accused Ranjeet {A2 (present in the Court) } in their firm. He further deposed that when he entered inside his office, he came to know the name of said handicapped person as Sudhir and that he enquired from said Sudhir as to why he was sitting in his office, who replied that it was driver Rizwan @ Sonu (A1 herein), who had brought him for employment. PW14 Ganesh further deposed that at about 9.30 pm, SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 13 of 52 accused Ranjeet (A2) and Rizwan @ Sonu (A1) came to the office, after parking Eicher Canter bearing registration no. DL1LM5565 and he paid a sum of Rs. 500/ each to Deepak as well as to accused Rizwan @ Sonu (A1) and Ranjeet (A

2) towards their expenses. PW14 further deposed that after taking the said money, Deepak as well as accused Rizwan @ Sonu (A1) left the office for purchasing liquor and eatables and after about 10 minutes, they returned to the office. He further deposed that Deepak as well as accused Rizwan @ Sonu (A1) and Ranjeet (A2) started consuming liquor and asked him as well as Sudhir for preparing food as they had brought fish. PW14 Ganesh further deposed that accordingly he and Sudhir started cooking the food and while they (Deepak, Rizwan @ Sonu and Ranjeet) were consuming liquor, Deepak told to accused Ranjeet (A2) that since he (Deeak) had already started working, he was in need of some money as advance. PW14 further deposed that upon this, accused Ranjeet (A2) replied to Deepak that since Deepak was doing the job for the last 34 days only, he should wait for few more days so that he could talk to the employer and arrange money. PW14 further deposed that on this, accused Ranjeet (A2) started quarreling with Deepak and on seeing them quarreling, he (PW14) intervened and pacified them. He further deposed that thereafter, they all had eaten the dinner. PW14 Ganesh further deposed that after taking dinner, accused Ranjeet (A2) again started quarreling with Deepak and on seeing them quarreling, he (PW14) asked accused Ranjeet (A2), Rizwan @ Sonu (A1) as well as Deepak for leaving the said office and accordingly they left his office and PW14 went to sleep. PW14 Ganesh further deposed that at about 2.00 am, he woke up on hearing the noise of accused Rizwan @ Sonu (A1) who was asking his friend Sudhir to wake up and to leave the office and at that time accused Ranjeet (A2) was also present inside the office. He further deposed that he also saw Deepak (since deceased) lying in SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 14 of 52 injured condition on a bed near his bed, having injuries over his head and was bleeding from his head. PW14 Ganesh further deposed that thereafter accused Rizwan @ Sonu (A1) and Ranjeet (A2) took Sudhir towards the aforesaid Eicher Canter which was parked in front of their office and he (PW14) followed them and tried to apprehend them and also tried to snatch the key of the aforesaid Canter from the possession of accused Rizwan @ Sonu (A1), but in vain. He further deposed that they (accused Rizwan @ Sonu (A1), Ranjeet (A2) & Sudhir) firstly loaded the hand rickshaw of handicapped Sudhir inside the aforesaid Canter and thereafter they sat inside the aforesaid Canter and managed to run away from the spot while driving away the Canter. PW14 Ganesh further deposed that he tried to contact his employer namely Deepak by making several phone calls to him, but his phone was found switched off. He further deposed that thereafter he immediately started his bike and rushed to the house of his employer Sh. Deepak and upon reaching there, he narrated about the aforesaid occurrence to him. He further deposed that his employer Deepak immediately made a call at 100 number and thereafter he accompanied Sh. Deepak to the aforesaid office i.e. the place of occurrence. PW14 further deposed that by that time, the PCR officials had already reached there and thereafter he with the help of Sh. Deepak and PCR officials brought injured Deepak downstairs and PCR officials took injured Deepak to SRHC Hospital in PCR Van. He further deposed that he alongwith his employer Sh. Deepak also went to SRHC Hospital and from there, they both returned back to their office. PW14 Ganesh further deposed that while they were present at their office, his employer Deepak instructed him to make a call to accused Rizwan @ Sonu (A1) and accordingly he dialed the mobile number of accused Rizwan @ Sonu (A1) from his mobile phone and his employer Sh. Deepak talked to accused Rizwan @ Sonu (A1) and asked him to return to the office by saying that injured SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 15 of 52 Deepak (since deceased) was alright. PW14 further deposed that after about one hour or so, accused Rizwan @ Sonu (A1) came to the aforesaid office while driving the aforesaid Canter and they managed to apprehend him. PW14 further deposed that his employer Deepak made a call to the police, on which police officials reached at the spot and they (PW14 & his employer Deepak) produced accused Rizwan @ Sonu (A1) before the said police officials. He further deposed that police officials took accused Rizwan @ Sonu to the PS and they also accompanied the police officials to PS Alipur. He further deposed that in the PS, police official recorded statement Ex.PW14/A and that police interrogated accused Rizwan @ Sonu (A1) and also effected his arrest. He further deposed that thereafter, he, Sh. Deepak as well as the police officials went to the house of accused Ranjeet (A2) at Village Siraspur, but said accused was not found present inside his house. He further deposed that they met father and sister of accused Ranjeet, who informed them that accused Ranjeet had not returned to the house. He further deposed that thereafter they returned back to the PS and police also brought the father of accused Ranjeet to PS for interrogation.

21.1. Since PW14 Ganesh had partly resiled from his previous statement made before the police, ld. Addl. PP for the state sought permission to cross examine him and during such crossexamination, PW14 Ganesh has denied the suggestion that at about 1.30-2.00 am, Deepak (since deceased) as well as accused Rizwan @ Sonu (A1), Ranjeet (A2) and Sudhir had finished their dinner or that thereafter, handicapped Sudhir came to his bed or that Deepak (since deceased) and accused Rizwan @ Sonu (A1) and Ranjeet (A2) went to another bed lying inside the office or that Deepak again started demanding money/salary from accused Rizwan @ Sonu (A1) or that accused Rizwan @ Sonu (A1) and SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 16 of 52 Ranjeet (A2) started giving beatings to Deepak with fists and legs or that both accused thereafter exhorted the words "abhi ruk ja ye salary mangna hi bhul jayega" or that thereafter, accused Rizwan @ Sonu (A1) went downstairs or brought a brick piece with him or that he (PW14) intervened and tried to stop accused Rizwan @ Sonu (A1) from assaulting Deepak, but accused Rizwan @ Sonu (A1) pushed him (PW14) or that when Deepak (since deceased) was lying on the bed, accused Ranjeet (A2) sat over him or that accused Rizwan @ Sonu (A1) had assaulted a number of times over the head of Deepak with the said brick piece or that after assaulting Deepak, accused Rizwan @ Sonu (A1) went downstairs with the said brick piece. During crossexamination of PW14 by ld. Addl. PP for the State, statement Ex.PW14/A was read over to him but he denied having made any such statement before the police. He further denied the suggestion that he was intentionally not supporting the entire statement, which he made before the police, being won over by the accused persons or being threatened by them. However he admitted that except him, Deepak (deceased), accused Rizwan @ Sonu (A1), Ranjeet (A2) and handicapped Sudhir, no other person was present in the aforesaid office. He further admitted that when he woke up on hearing the noises, he saw Deepak lying in injured condition over the bed having injuries over his head and accused Rizwan @ Sonu (A1), Ranjeet (A2) and handicapped Sudhir were only available in the said office/room. He further deposed that so far as he knew, the age of Deepak was around 3035 years and he was of 5½ of height and was well built. PW14 further admitted that deceased Deepak had no altercation whatsoever with handicapped Sudhir. He further deposed that since he met handicapped Sudhir for the first time on that night, he was not aware about the percentage of his (Sudhir's) disability, but had seen him walking with the help of crutches (baisakhi).

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21.2. PW14 Ganesh has identified the piece of mattress Ex.P3 before the Court as the piece of the same mattress over which Deepak (deceased) was lying in injured condition.

21.3. During crossexamination of PW14 Ganesh by ld. Counsel for accused persons, he admitted that police also threatened him to give his statement and had voluntarily stated that he was threatened to give the correct statement, otherwise he would also be put behind the bars.

22. PW15 Sudish (another eyewitness to the incident in question, but he is referred to as Sudhir in the entire prosecution case and documents but that discrepancy in my view is not of any significance) has deposed that he came to Delhi for the first time in the year 2011 and he used to remain in Delhi for about 4 to 6 months and used to run a hawker shop. He further deposed that in the month of May 2015, he again came to Delhi on the asking of his friend i.e. accused Rizwan @ Sonu (A1), who offered him that he should arrange a shop for him (PW15) in Delhi and accordingly he (PW15) came to Delhi approximately two days prior to the occurrence of present case. He further deposed that he met accused Rizwan @ Sonu (A1) approximately one year prior to the occurrence and developed friendship with him. PW15 further deposed that on the day of occurrence, he came to Delhi in the morning hours and on the same day he reached at Alipur i.e. Deepak Transport Office situated at first floor. He further deposed that when he reached inside the said office, he met accused Ranjeet (A

2) as well as accused Rizwan @ Sonu (A2). He further deposed that at about 6 pm, he also met one Deepak Kumar (since deceased) in the said office and that in between 78 pm, he also met one Ganesh (PW14), who introduced himself to be SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 18 of 52 the 'Munshi' of Deepak Transport Company/Office. PW15 further deposed that when Ganesh entered inside the office, he made enquiries from him and also enquired as to from where he (PW15) belonged, on which he replied that he belonged to Bihar and was called by accused Rizwan @ Sonu (A1). He further deposed that at about 9.30 pm, accused Ranjeet and Rizwan @ Sonu (A2 & A1 respectively) came to said office after parking Eicher Canter bearing registration no. DL1LM5565 and PW14 Ganesh paid a sum of Rs. 500/ each to Deepak as well as to accused Rizwan @ Sonu and Ranjeet towards their expenses. PW15 further deposed that after taking the said money, Deepak as well as accused Rizwan @ Sonu left the office for purchasing liquor and eatables and after about 1015 minutes, they returned back to said office. He further deposed that Deepak (since deceased) as well as accused Rizwan @ Sonu (A1) and Ranjeet (A2) started consuming liquor and asked him and PW14 Ganesh to prepare food as they had brought fish and accordingly they both started cooking the food. He further deposed that while they were consuming liquor, Deepak told to accused Ranjeet that since he (Deepak) had already started working, he was in need of some money as advance, on which accused Ranjeet (A2) replied to Deepak that since Deepak was doing the job for the last 34 days only, he should wait for few more days so that he (Ranjeet) could talk to the employer and arrange money. PW15 Sudhish further deposed that upon this, accused Ranjeet (A2) started quarreling with Deepak and on seeing them quarreling, he intervened and pacified them and that thereafter, they all had eaten the dinner and after taking dinner, he went to sleep. PW15 further deposed that at about 2.00 am, he woke up on hearing some noises and saw Deepak lying in injured condition on a bed near a bed, having injuries over his head and he was bleeding from his head. He further deposed that in the meantime, 1015 nearby persons gathered there. He further SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 19 of 52 deposed that thereafter accused Rizwan @ Sonu (A1) took him (PW15) towards the aforesaid Eicher Canter which was parked in front of the said office and he (accused Rizwan @ Sonu) firstly loaded his (PW15's) tricycle inside the aforesaid Canter and thereafter they sat inside the aforesaid Canter. PW15 further deposed that accused Rizwan @ Sonu (A1) drove away the said Eicher Canter towards Lal Qila and dropped him there. He further deposed that except that, he did not know anything else about this case and did not want to say anything else.

22.1. Since PW15 Sudish resiled from his previous statement made to the police, ld. Additional PP sought permission to cross examine him and during his said crossexamination, similar suggestions with regard to the manner in which Deepak (since deceased) had received injuries, as were given to PW14 Ganesh, were put to PW15, but he denied all such suggestions. He also denied having made any statement Mark PW15/A before the police. He also corroborated the latter part of evidence of PW14 Ganesh.

23. PW7 Deepak Tokas has deposed about running transport business in the name of Deepak Transport having office at Seed Farm Road, Alipur, Delhi, hiring of Ganesh (PW14) as Munshi/Munim, of Deeapk (since deceased) as driver in the first Week of May, 2015 at the behest of his driver /accused Ranjeet (A2) and also hiring of accused Rizwan @ Sonu (A1) as a driver in his transport company, arrival of PW14 Ganesh at his house on 05/05/2015 at about 4.30 a.m., narrating of incident of quarrel which took place between accused Rizwan (A1), Ranjeet (A2) and Deepak (since deceased) on the issue of advance salary, causing of injury over the head of Deepak by accused Ranjeet (A2) and Rizwan (A2), lying of Deepak in injured condition in the office, running away of accused SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 20 of 52 Rizwan and Ranjeet along with one more person in Eicher Canter No. DL1LM 5565, which was registered in his (PW7's) name, making of a call at 100 number on receiving of above information from PW14 Ganesh from his mobile no. 9212126595, his reaching at the office with PW14 Ganesh, arrival of PCR van at the spot, removing of injured Deepak to hospital by PCR, his accompanying PW14 Ganesh to the hospital, arrival of local police, his making a call to accused Rizwan @ Sonu (A1), arrival of accused Rizwan @ Sonu at aforesaid office along with aforesaid canter, apprehension of accused Rizwan @ Sonu (A1) at his instance, arrest of accused Rizwan @ Sonu (A1) vide memo Ex. PW7A, conducting of his personal search vide memo Ex. PW7/B and recording of his statement.

24. As per case of prosecution, injured Deepak (since deceased) was taken to SRHC Hospital. PW1 Dr. Jogendra Kumar, Medical Officer, SRHC Hospital, Narela, Delhi, has proved the MLC No. 1465/15 of injured Deepak, who was brought to the hospital with alleged history of physical assault. He testified that initially the name of the patient was inadvertently mentioned as "Ranjeet", which was corrected in the MLC itself by mentioning the correct name of patient as "Deepak". He further testified that on examination, the patient was found unconscious with ENT bleeding and on local examination, he (PW1) found left eye globe damaged, one CLW 4 x 1 cm on left side of forehead and multiple abrasion on the right side of face of injured Deepak. He further deposed that after medical examination, injured Deepak was referred to SR (Surgery) and SR (Medicine) for expert opinion and further management. He has proved the observations at portion X to X1 on MLC Ex. PW1/A made by Dr. Vikram from surgical side, who further referred the patient to higher centre/LNJP hospital for further management.

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25. PW22 Ct Gaurav Kumar has deposed that on 05.05.2015, he was posted at PCR PHQ and was on duty from 2.00 p.m. to 8.00 p.m. at Channel No.

115. He further deposed that that day at about 4:25:03 hours, a PCR call was received from Mobile no. 9212121596 and the informer disclosed his name as Sandeep Kumar and informed regarding quarrel at Seed Farm road, near MRF showroom and he (PW22) recorded the said information in PCR FormI and transmitted the said information for further necessary action. He has proved the said PCR form as Ex. PW22/A.

26. The information regarding quarrel at MRF showroom situated at Seed Farm House, Alipur, Delhi, was received on 05/05/2015 at PS Alipur and the said information was recorded by PW5 Ct Hari Om in Roznamcha vide DD no. 4B, attested copy of which is Ex. PW5/A and the contents of said DD were informed to HC Jitender (PW14), who along with PW25 Ct Kapil was on emergency duty on the intervening night of 4/5.05.2015 and on receipt of DD no.4B, they both reached at C Farm Road, Deepak Transporter. PW14 HC Jitender deposed that in the said DD, last numbers of the mobile were inadvertently mentioned as 1956, whereas the last numbers of the mobile were 6595. He further deposed that at the spot i.e. office of abovementioned address, he noticed bloodstains at wall, floors as well as bed. He further deposed that he also met owner of the office namely Deepak (PW7) along with 23 other persons and it was revealed that injured had been removed to SRHC hospital, Narela. He further deposed that thereafter he left PW25 Ct Kapil at the spot and himself reached at SRHC hospital, where he found injured Deepak whose name was inadvertently mentioned as Ranjeet in the MLC. PW14 further deposed that since the condition of injured was serious, therefore he informed the concerned SHO, whereafter PW13 SI Satish Pandey along with SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 22 of 52 PW17 Ct Dushyant reached at the hospital, to whom he conveyed the entire situation.

27. PW13 SI Satish Pandey has deposed that in the intervening night of 04/05.05.2015, he was posted at PS Alipur and was on night emergency duty from 8 pm to 8 am alongwith PW17 Ct. Dushyant. He further deposed that on that day, DD No. 9A {which was recorded by PW9 HC Vinod Kumar (duty officer) & vide which PW13 SI Satish Pndey was directed to conduct necessary action/enquiry with regard to DD no. 4B} was marked to PW13 SI Satish Pandey and accordingly PW13 alongwith PW17 Ct. Dushyant went to SRHC Hospital. PW13 SI Satish Pandey further deposed that in the said hospital, he met PW14 HC Jitender and upon enquiry, PW14 briefed him about the occurrence and injured Deepak was found under treatment vide MLC No. 1465/15. He further deposed that he collected the aforesaid MLC and on perusal of the same, he found that the name of injured was inadvertently mentioned as Ranjit. He further deposed that in the said hospital, he also met PW14 Ganesh S/o Sh. Joori Dass, who made statement before him since injured was unfit for statement. PW13 SI Satish Pandey further deposed that PW14 Ganesh remained in the hospital, whereas he alongwith PW17 Ct. Dushyant came to the spot i.e. at First Floor, Deepak Transport, Sukhbir Ka Makaan, Seed Farm Road, where they met PW25 Ct. Kapil Sharma. He further deposed that on visiting the said office, he found two beds kept in the said office, blood stains on the northwest corner on one bed and the nearby wall of the said bed was also having blood stains, blood on the table lying inside the said office and blood stains over the floor of said office. PW13 SI Satish Pandey further deposed that on the basis of statement made by PW14 Ganesh, contents of MLC and the facts and circumstances of the case, he prepared rukka Ex.PW13/A and handed SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 23 of 52 over the same to PW17 Ct. Dushyant, who accordingly, went to PS for getting the FIR registered.

28. PW19 ASI Devender Joshi (retired) has corroborated PW13 SI Satish Pandey and has deposed that on the basis of aforesaid rukka Ex. PW13/A brought by PW17 Ct Dushyant, he got recorded FIR of the present case and has proved the computerized copy of FIR as Ex. PW19/A, his endorsement on the rukka Ex. PW19/B and certificate u/s 65B of Indian Evidence Act Ex. PW19/C.

29. PW13 SI Satish Pandey further deposed that he also called crime team officials at the spot. He further deposed that in the meantime, PW14/complainant Ganesh also reached at the place of occurrence and he prepared rough site plan Ex.PW13/B of the place of occurrence at the instance of PW14 Ganesh. Crime team officials inspected the place of occurrence and crime team photographer took the photographs of the place of occurrence from different angles. PW3 ASI Ram Kumar, incharge, mobile crime team, outer district, has proved his crime team report Ex. PW3/A which was handed over by him to PW13 Satish Pandey, whereas PW4 Ct Mahesh (photographer) who took 12 photographs of the place of occurrence from different angles has identified the 11 photographs available on judicial record as Ex. PW4/B colly and 12 negatives thereof as Ex. PW4/A collectively, out of which, one negative was washed out. As per version of PW3 and PW4, no chance prints could be lifted from the place of occurrence.

30. PW13 SI Satish Pandey further deposed that from the place of occurrence, he cut the blood stained portion of 'gadda' (mattress) found over the bed and kept the said exhibit in a plastic container, which was sealed with the help SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 24 of 52 of doctor's tape and with the seal of 'SKP' and was seized vide seizure memo Ex.PW13/C. He further deposed that he also lifted the blood stained floor piece after breaking the same, kept the same in a plastic container, which was sealed with the help of doctor's tape, sealed with the seal of "SKP" and was seized vide seizure memo Ex.PW13/D. He further deposed that he also lifted the blood on gauze piece, which was found lying over the table and kept the same in a plastic container, which was sealed with the help of doctor's tape with the seal of SKP and was seized vide seizure memo Ex.PW13/E.

31. PW13 SI Satish Pandey further deposed that since injured Deepak was shifted to LNJP Hospital, he alongwith PW17 Ct. Dushyant went to LNJP Hospital, where the concerned dealing clerk handed over one sealed pullanda containing clothes of injured and sample seal of "LNH New Delhi", to him, which he seized vide seizure memo Ex.PW13/F and thereafter he alongwith PW17 Ct. Dushyant returned back to the spot. He further deposed that he contacted PW7 Deepak Tokas i.e. the employer of injured Deepak, who was in possession of premises in question. He further deposed that he (PW7) met them at the spot and he instructed PW7 Deepak Tokas to contact accused Rizwan @ Sonu (A1), who accordingly made a telephone call to accused Rizwan @ Sonu. PW13 SI Satish Pandey further deposed that on his instructions, PW7 Deepak Tokas told to said accused that the condition of injured Deepak was out of danger and he (Deepak Tokas) asked accused Rizwan @ Sonu to come to the said hospital. He further deposed that accordingly accused Rizwan @ Sonu (A1) came to the office while driving Tempo bearing registration no. DL1LM5565 and they managed to apprehend accused Rizwan @ Sonu (A1). PW13 further deposed that he effected arrest of accused Rizwan @ Sonu vide arrest memo Ex.PW7/A and conducted his SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 25 of 52 personal search vide memo Ex.PW7/B. He further deposed that accused Rizwan @ Sonu also made disclosure statement Ex.PW13/G before him and also pointed out the place of commission of offence vide memo Ex.PW13/H.

32. PW13 SI Satish Pandey further deposed that during investigation, efforts were made to effect the recovery of weapon of offence i.e. stone piece and to effect the arrest of coaccused, but in vain. He further deposed that he recorded the statements of witnesses, deposited the case property in Malkhana and accused Rizwan @ Sonu (A1) was kept in the Lockup. He further deposed that on 06.05.2015, judicial remand of accused Rizwan @ Sonu (A1) was obtained. He further deposed that on the same day, at about 6.00 pm, information was received from LNJP Hospital vide DD No. 55B Ex.PW5/B (recorded by PW5 Ct Hari Om, who was working as DD writer at PS Alipur on 06/05/2015) to the effect that injured Deepak had expired during treatment in the said hospital and accordingly, offence U/s 304 IPC was added in the investigation. PW13 SI Satish Pandey further deposed that on 07.05.2015, he alongwith PW24 Ct. Ravi Kant went to the Mortuary of LNJP Hospital, where he met PW8 Sunil Kumar (neighbour of deceased Deepak) and PW2 Nand Kishore (real brother of deceased Deepak), who identified the body of Deepak in the said Mortuary and that he recorded their statements Ex.PW8/A and Ex.PW2/A respectively. PW13 further deposed that in the said hospital, he filled form no.25.35(1)(B) Ex.PW13/J and prepared brief facts Ex.PW13/K and also moved an application Ex.PW13/L for conducting postmortem on the body of deceased and accordingly postmortem on the body of deceased was conducted by concerned Autopsy Surgeon.

33. PW6 Dr. Rishi Solanki, S.R. (Forensic Medicine), MAMC, New Delhi SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 26 of 52 02 has corroborated PW13 SI Satish Pandey and has deposed that on 07/05/2015, he conducted the postmortem on the body of deceased Deepak Kumar S/o late Mohan Lal on the request of PW13 SI Satish Kumar. He further deposed that the body was brought with alleged history that on 05.05.2015 at about 2.00 a.m., quarrel occurred between accused and victim (Deepak) in which deceased Deepak was hit by accused on head with a brick and he was taken to SRHC hospital, from where he was referred to Lok Nayak Hospital, where he expired during the course of his treatment. He further deposed that dead body was identified by PW2 Nand Kishore (brother of deceased) and PW8 Sunil Kumar (neighbour of deceased). PW6 has proved his detailed postmortem report no. 395/15 dated 07/05/2015 as Ex. PW6/A. He further deposed that after carrying out the postmortem examination, he gave opinion that cause of death was cerebral damage consequent upon blunt force impact via injury no. 1 which was sufficient to cause death in ordinary course of nature. He further deposed that all the injuries were antemortem in nature caused by blunt force and possibility of homicide could not be ruled out. He further deposed that SDH (subdural haematoma) blood was preserved in sealed container duly sealed with the seal of "RS10 MAMC' and was handed over to police official for alcohol analysis. In the cross examination, PW6 has stated that it was unlikely that the nature of injuries as mentioned by him in PM report Ex. PW6/A, could have been caused due to striking of head of deceased either against wall while running at fast speed. He further deposed that possibility of sustaining those injuries by hitting against the head of deceased against some hard surface due to falling down while running at fast speed cannot be ruled out. He further deposed that in view of injury no.1 mentioned in PM report Ex. PW6/A, said injury could have been caused with single blow of blunt force. However he has denied the suggestion that the single blow with brick piece even on the head of a SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 27 of 52 person, is not sufficient to cause his death. He has voluntarily stated that in case the impact of the force with which brick blow is given on the frontal region of the head, which is also the position in this case, same could have been sufficient to cause death of a person.

34. PW13 SI Satish Pandey further deposed that after the postmortem, the body of deceased was handed over to Nand Kishore (brother of deceased) vide receipt Ex.PW2/B and that PW6 Dr. Rishi produced the relevant exhibits sealed with the seal of MAMC RS 10, which he seized vide seizure memo Ex.PW13/M. He further deposed that he recorded the statements of witnesses and deposited the aforesaid exhibits in the Malkhana.

35. PW13 SI Satish Pandey has identified the gauze piece Ex. P1 as the one with the help of which blood was lifted from the table which was lying at the scene of crime, few concrete pieces having dark stains stated to be containing blood lifted from the floor of scene of crime as Ex. P2 and piece of mattress having dark stains as Ex.P3 lifted from the scene of crime.

36. As per prosecution case, on 15/06/2015, further investigation of the present case was marked to PW23 SI Satish (now Inspector), who testified that on 15.07.2015, upon his instructions, PW18 Ct. Surender (now HC) had collected six sealed pullandas and two form FSL vide Road Certificate from MHC(M) and deposited the same at FSL, Rohini and he recorded the statement of Ct. Surender in this regard. PW23 further deposed that on the same day i.e. 15.07.2015, he accompanied PW13 SI Satish Pandey and PW21 Draftsman Inspector Mahesh to the place of occurrence, where Draftsman took measurements and prepared rough SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 28 of 52 notes at the instance of PW13 SI Satish Pandey. He further deposed that he recorded the statement of PW21 Draftsman Inspector Mahesh as well as of PW13 SI Satish Pandey in this regard.

37. PW21 Inspector Mahesh has corroborated PW23 SI Satish and has proved the scaled site plan Ex. PW21/A prepared by him on the basis of aforesaid rough notes and measurements.

38. PW23 Inspector Satish further deposed that on 24.07.2015, he recorded statement U/s 161 Cr.P.C. of PW16 Pritam Singh i.e. the owner of the premises where the occurrence took place. PW23 further deposed that during investigation, offence U/s 302 IPC was incorporated in the investigation and further investigation was marked to Inspector Mahavir, who had prepared and filed chargesheet in respect of accused Rizwan @ Sonu (A1). PW23 Inspector Satish further deposed that on 07.09.2015, accused Ranjeet (A2) surrendered himself before the concerned court and accordingly he accompanied Ct. Sukhdev to Rohini Court, where he moved an application and after taking permission from the Ld. MM, he (PW23) interrogated accused Ranjeet (A2), effected his arrest vide arrest memo Ex.PW23/A, conducted his personal search vide memo Ex.PW23/B, who also made disclosure statement Ex.PW23/C and was sent to JC. PW23 Inspector Satish further deposed that on 10.09.2015, PW20 Ct. Anoop Singh joined the investigation of the present case with him and that day he (PW23) obtained one day P/C remand of accused Ranjeet (A2). He further deposed that during P/C remand on 10.09.2015, accused Ranjeet (A2) led them to his house situated at Gali No. 4, Rajiv Nagar, Libaspur, Delhi, where they met his father Sh. Sita Ram. He further deposed that accused Ranjeet (A2) picked up one mobile instrument SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 29 of 52 make Samsung without SIM from the room of his house and produced the same before him, which he seized vide seizure memo Ex.PW20/A. PW23 further deposed that thereafter accused Ranjeet (A2) led them to the place of commission of offence and pointed out the place of occurrence and he prepared pointing out memo Ex.PW20/B in this regard. He further deposed that thereafter they returned back to PS and he deposited the case property in the Malkhana and also recorded statement of PW20 Ct. Anoop in this regard.

39. PW23 Inspector Satish further deposed that during investigation, he also collected the CDRs of mobile no. 8130554707, which was in the name of Sh. Sita Ram, father of accused Ranjeet and was being used by accused Ranjeet (A

2). He further deposed that from the analysis of the said CDR, it was revealed that during the night hours of 05.05.2015, the location of the said mobile handset was at Alipur, at about 3.54 am at Bhalswa Colony, at 5 am at Nizamuddin East Delhi and at 7.27 am, the location of said mobile handset was outside Delhi. He further deposed that it was also revealed that from the same mobile instrument, mobile SIM no. 8010633374 was used on 20.05.2015 and that the said mobile SIM number was in the name of complainant Ganesh (PW14), which was taken away by accused Ranjeet after the commission of offence. He further deposed that during P/C remand, accused Ranjeet (A2) got recovered the aforesaid mobile instrument belonging to PW14 complainant Ganesh. PW23 further deposed that he also collected the FSL result and upon completion of investigation, prepared supplementary chargesheet in respect of accused Ranjeet (A2).

39.1. PW23 Inspector Satish has identified the mobile instrument make Samsung (without SIM) Ex. P20/1 recovered at the instance of accused Ranjeet SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 30 of 52 (A2), which was belonging to PW14 complainant Ganesh.

40. PW10 Yogesh Tripathi, Alternate Nodal Officer, Reliance Communication Ltd. has proved the call detail record of mobile no. 8010633474 for the period from 01/05/2015 to 15/07/2015 & cell ID Chart Ex. PW10/C, which was in the name of PW14 Ganesh Dass, photocopy of CAF Ex. PW10/A, attested copy of DL Ex. PW10/B and certificate u/s 65B of Indian Evidence Act Ex. PW10/D. In his crossexamination, PW10 has deposed that as per the CDR, the aforesaid mobile connection was active till 11.05.2015 and no further call was made or received in the aforesaid SIM number from 11.05.2015 till 15.07.2015. In his crossexamination, he further stated that if a person wants to close any SIM connection, he may move an application to the nearest office/store of the concerned company and the said concerned office/store may close the SIM connection on any such application.

41. PW11 Chander Shekhar, Nodal Officer, Bharti Airtel Ltd. has proved the call detail record of mobile no. 8130554707 for the period from 01/05/2015 to 13/07/2015 Ex. PW11/C which was in the name of Sita Ram {father of accused Ranjeet (A2)}, photocopy of CAF Ex. PW11/A, its cell ID chart Ex. PW11/E, copy of election I/Card Ex. PW11/B and certificate u/s 65B of Indian Evidence Act Ex. PW11/D. He has also proved call detail record of mobile no. 9661046064 for the period from 01/05/2015 to 08/10/2015, which was in the name of Maya Devi Ex. PW11/G, KYC form Ex. PW11/F and certificate u/s 65B of Indian Evidence Act Ex. PW11/H and also call detail record of mobile no. 8130554766 for the period from 01/05/2015 to 08/10/2015, which was in the name of Vicky Kumar Ex. PW11/K, photocopy of CAF Ex. PW11/J and certificate u/s 65B of Indian Evidence Act Ex.

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PW11/H.

42. PW12 Sh. Santosh Tripathi, Sr. Scientific Officer (Chemistry), FSL, Rohini, Delhi, has deposed that on 15.07.2015, their office received one sealed parcel vide reference no. 2263/SHO/Alipur, which was marked to him for examination purposes. He further deposed that on receipt of said parcel, he found the seals over the said parcels intact as per the Forwarding Authority's Specimen seal. He further deposed that he opened the said parcel, which was found containing blood sample Volume 20 ml approx. kept in a small plastic container. PW12 further deposed that he chemically examined the said blood sample and on chemical and GCHS examination, the said blood sample i.e. Ex.1 was found to contain Ethyl Alcohol 24.4 mg/ 100 ml of blood. He has proved his report dated 24.08.2015 Ex.PW12/A in this regard bearing his signatures at pointsA on both the pages. He further deposed that after examination, the remnant of the exhibit were sealed with the seal of "STY FSL Delhi". In his crossexamination, PW12 has admitted that as per the sealed parcel labelled as PM no. 395/15 dated 07.05.2015, name of "Deepak Kumar" was mentioned and that the ratio of alcohol found in the said blood sample, was a mild one.

43. PW26 ASI Ajay Kumar, the then MHC(M), PS Alipur, has deposed that on 05.05.2015, PW13 SI Satish Kumar deposited four pullandas alongwith one sample seal and personal search articles of accused Rizwan @ Sonu (A1), in the Malkhana and he made entry at serial no. 262/15 in register no. 19 in this regard. He has proved the photocopy of the relevant page containing the aforesaid entry as Ex.PW26/A. He further deposed that on 07.05.2015, PW13 SI Satish Kumar deposited two pullandas sealed with the seal of "MAMC RS 10" alongwith two SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 32 of 52 sample seal, in the Malkhana and he made entry at serial no. 266/15 in register no. 19 in this regard and has proved the photocopy of the relevant page containing the aforesaid entry as Ex.PW26/B. PW26 further deposed that on 10.09.2015, PW23 Inspector Satish Kumar deposited one mobile phone without SIM in the Malkhana regarding which entry was made by HC Jaswant Singh, the then MHC(M) at serial no. 528/15 in register no. 19 and has proved the photocopy of the relevant page containing the aforesaid entry as Ex.PW26/C. He further deposed that on 15.07.2015, five sealed pullandas alongwith two sample seals were sent to FSL, Rohini through PW18 Ct. Surender (now HC) vide R.C. No. 120/21/15. He further deposed that one sealed pullanda sealed with the seal of "MAMC RS 10" was also sent to FSL, Rohini through PW18 Ct. Surender (now HC) vide R.C. no 121/21/15 regarding which HC Jaswant Singh made necessary endorsement/entry in register no. 19. PW26 ASI Ajay Kumar has proved the photocopies of RC no. 120/21/15 and 121/21/15 as Ex.PW26/D and Ex.PW26/E, bearing the signatures of HC Jaswant Singh at pointsA. PW26 further deposed that after depositing the aforesaid sealed pullandas, PW18 Ct. Surender (now HC) handed over the acknowledgements of FSL Ex.PW26/F & Ex.PW26/G. APPRECIATION OF EVIDENCE

44. As per the case of prosecution, both PW14 Ganesh & PW15 Sudish had witnessed the incident when the injuries were caused to Deepak (since deceased) in the aforesaid manner by both the accused, whereas in their depositions before the Court, they have not stated to have witnessed the causing of injuries to victim Deepak (since deceased) by both the accused. However from the statements of PW14 Ganesh and PW15 Sudish, it can be very well inferred that both the accused were very much present at the spot on the day of the SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 33 of 52 incident as they consumed liquor and ate food there along with both these PWs and victim Dinesh (since deceased), although PW14 Ganesh has claimed in his deposition that initially quarrel took place between accused Ranjeet (A2) and victim Deepak (since deceased) on the issue of advance salary but he pacified them and again after taken dinner, both Ranjeet (A2) and victim Deepak (since deceased) again started quarreling and on this he (Ganesh) asked accused Ranjeet (A2), Rizwan @ Sonu (A1) and Deepak (since deceased) for leaving the said office and they did accordingly. However he has furher deposed that at about 2.00 a.m., he wokeup on hearing the noise of accused Rizwan @ Sonu (A1) who was asking his friend Sudhir to wakeup and to leave the office and at that time, accused Ranjeet (A2) was also present inside the office and he (PW14 Ganesh) had seen Deepak (since deceased) lying in injured condition on a bed near his bed, having injuries over his head and bleeding. On the other hand, the other eye witness PW15 Sudish has only supported the version of prosecution qua the initial quarrel and has nowhere deposed that again a quarrel took place between accused Ranjeet (A2) and victim Deepak (since deceased) or that on the asking of PW14 Ganesh, both the accused and victim Deepak left the said office. Rather he claimed that after taking dinner, he went to sleep and at about 2.00 a.m., he woke up on hearing some noise and saw Deepak (since deceased) lying in injured condition and confirmed the presence of accused Rizwan @ Sonu (A1) at that time, who took him towards the Eicher canter and then they (PW15 and accused Rizwan @ Sonu) went from there. However in his crossexamination by ld. Addl. PP, he has accepted the presence of accused Ranjeet also there. Thus PW14 Ganesh and PW15 Sudish have deposed about seeing the victim Deepak (since deceased) in injured condition and bleeding at 2.00 a.m. when they wokeup after hearing the noise of accused Rizwan @ Sonu (A1), who asked Sudhir (PW15 SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 34 of 52 Sudish) to leave the office. Since both these eyewitnesses have turned partly hostile and had not seen causing of injuries to Deepak by both the accused, therefore it has become a case of circumstantial evidence inspite of the case initially based on eyewitness account.

45. Both the eyewitnesses PW14 Ganesh and PW15 Sudish were cross examined by the then ld. Addl. PP for the State and suggestions were given qua their having witnessed the incident occurring in the aforesaid manner, but they denied the same.

46. Nothing substantial could be extracted during the crossexamination of PW14 Ganesh and PW15 Sudish on behalf of both the accused persons.

47. During course of arguments, ld. respective Counsels representing both the accused persons have submitted that since both the aforesaid eye witnesses have not supported the case of prosecution having witnessed the incident and there is no other evidence to show that the injuries in question were caused by accused Rizwan @ Sonu (A1) and Ranjeet (A2) in the aforesaid manner, therefore both the accused persons deserve to be acquitted.

48. It is a settled law that maxim 'falsus in uno, falsus in omnibus' is not applicable to the Indian Evidentary Jurisprudence. Under Indian Law, if one part of testimony of witness is found reliable and trustworthy and remaining part of such testimony is found to be unreliable, then that portion which inspires confidence and is reliable should not be rejected and can be taken into consideration. In this regard, I find support from 'State of Karnatka Vs. Papanaika' (2004) 13 SCC 180.

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It is well settled that testimony of even a hostile witness can be relied upon if it incriminates the accused on material points and the same can form basis of conviction.

49. In view of the aforesaid case law, I do not find any force in the aforesaid submission of ld. Counsels for the accused persons.

50. From the testimony of aforesaid both eyewitnesses, the presence of both the accused persons with victim at the spot during quarrel late in evening and then when Deepak was found in injured condition at 2.00 a.m. same night stands established. Furthermore, it also stands proved that a verbal altercation took place initially between victim Deepak (since deceased) and accused Ranjeet (A2) as victim was asking accused Ranjeet (A2) to get him advance salary from the employer since he had started working there on his (Ranjeet's) asking. Thus it can safely be presumed that accused Ranjeet (A2) developed grudge against the victim Deepak and had motive to cause bodily injury to him. From testimonies of PW14 & PW15, it stands established that besides them, both the accused along with victim Deepak (since deceased) were present in the said room from late evening of 04/05/2015, when food was cooked, liquor was consumed, aforesaid verbal altercation took place, dinner was eaten, which may have taken some time and both aforesaid PWs went to sleep and when they wokeup at 2.00 a.m. on the same night on hearing noise, the victim Deepak was lying on adjoining bed with head injuries and bleeding, while both the accused were present and awake and making preparation to run away.

51. As per Section 106 of Indian Evidence Act, the facts specially within SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 36 of 52 the knowledge of a party, must be explained by the said party. Reliance is placed on the judgment of Hon'ble Delhi High Court in the case of 'Rudal @ Jasan Vs State', Criminal Appeal no. 878/2013, date of decision: 25/09/2017, wherein in para no. 25, 26 & 27, it was held as under: "25. In the light of the above, it is to be seen whether in the facts and circumstances of the instant case, the Trial Court below was right in invoking the 'last seen theory'. From the evidence of PW9 and PW10 extracted hereinabove, it has been proved that only the appellant was residing with the deceased in his jhuggi for about 15 days prior to the incident and the deceased was also last seen in the company of the appellant prior to his death. The death of the deceased came to light on the next morning. Be it noted, that the prosecution has succeeded in proving the fact by definite evidence that the deceased was last seen alive in the company of the appellant. Thus, a reasonable inference can be drawn against the appellant and the onus stands shifted on the appellant under Section 106 of the Evidence Act.

26. It is not necessary to multiply with authorities. The principle is well settled.

The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 37 of 52 fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Naina Mohd. , Re. [AIR 1960 Mad 218]."

27. The Supreme Court of India in the case of Babu v. Babu and Another reported at (2003) 7 SCC 37, held that two persons have slept inside a bolted room on the night of the occurrence, it was for the accused alone to explain as to what had happened and how the other person had died on account of strangulation. The relevant para 14 reads as under: "14. The second important circumstantial evidence against the accused is that the accused and the deceased were last seen together. To put it tersely, both of them slept together by retiring to the room that night.

Last seen together in legal parlance ordinarily refers to the last seen together in SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 38 of 52 the street, at a public place, or at any place frequented by the public. But here, the last seen together is much more than that. The last seen together here is sleeping together inside the bolted room. It is in the evidence of PW3 and PW6 that they had dined together and the accused and the deceased were closeted in a bedroom at about 8.30 p.m. is undisputed and it is for the accused alone to explain as to what happened and how his wife died and that too on account of strangulation."

51.1. Hon'ble Apex Court in 'State of Rajasthan Vs. Jaggu Ram' (2008) 12 SCC 51 has held as under: "In our considered view, this was a fit case for invoking Section 106 of the Evidence Act, which lays down that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him..... The accused by virtue of their special knowledge must offer an explanation which might lead the court to draw a different inference."

51.2. In the case of 'Trimukh Maroti Kirkan V State of Maharashtra', (2006) 10 SCC 681, the Hon'ble Apex Court considered the applicability of Section 106 of the Evidence Act and observed as follows: "If an offence takes place inside the privacy of a house and in such circumstances where the assailants have all the opportunity to plan and commit the offence at the time and in circumstances of their choice, it will be extremely difficult for the prosecution to lead evidence to establish the guilt of the accused SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 39 of 52 if the strict principle of circumstantial evidence, as noticed above, is insisted upon by the courts. A judge does not preside over a criminal trial merely to see that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties. (See Stirland vs. Director of Public Prosecutions (1944) AC 315) quoted with approval by Arijit Pasayat, J. in State of Punjab V Karnail Singh (2003) 11 SCC 271. The law does not enjoin a duty on the prosecution to lead evidence of such character which is almost impossible to be led or at any rate extremely difficult to be led.

The duty on the prosecution is to lead such evidence which it is capable of leading, having regard to the facts and circumstances of the case. Here it is necessary to keep in mind Section 106 of the Evidence Act which says that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."

51.3. In another case of 'Raj Kumar Prasad Tamarkar Vs. State of Bihar' (2007) 10 SCC 403, the Hon'ble Apex Court held that "if some occurrence happens inside the residential portion of the accused, where he was also available, at or about the time of the incident, he is bound to offer his version as to how the occurrence had taken place. The only other person who can speak about the occurrence will be the deceased and now that she is dead, if at all, the accused alone can offer an explanation. Section 106 of the Evidence Act states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. It is true that this section cannot be used, so as to shift the onus of proving the offence, from the prosecution to the accused. However, in the SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 40 of 52 present, there is satisfactory evidence, which fastens or conclusively fixes the liability, for the death of Gandhimathi, on the inmate of the house, present therein at the relevant time. So, in the absence of any other explanation, the only possible inference is that the accused participated in the act. If he claims contrary, under Section 106 of the Evidence Act, the burden of proving that fact is upon him, since that is within his special knowledge."

52. There were five persons present in the room including both the accused, victim (deceased) and the aforesaid two eyewitnesses PW14 Ganesh and PW15 Sudish. From the depositions of PW14 and PW15, it is clear that both the accused and the victim consumed liquor together and the aforesaid two eye witnesses went to sleep after taking meals. Although no specific time of their taking meals after consuming liquor is mentioned but PW14 Ganesh has deposed that he gave Rs. 500/ each to accused Ranjeet and Rizwan around 9.00 p.m. and Deepak and accused Rizwan @ Sonu (1) brought liquor & eatables after ten minutes, fish was cooked and all aforesaid five took dinner and this process must have taken about 2/2½ hours from 9.10 p.m. i.e. upto about 11.10/11.40 p.m. and then as per testimony of PW14 and PW15, they woke up around 2.00 a.m. on hearing the noise of accused Rizwan @ Sonu, who was trying to wakeup Sudhir (PW15) and both PW14 & 15 saw Deepak with head injury and bleeding from his head. From the testimony of PW14 & 15, it can safely be inferred that till the time Deepak went to sleep and both the eyewitnesses were awake, which must have been around till 11.10/11.40 p.m., there was no injury to victim Deepak (since deceased) and at 2.00 a.m. Deepak was found in aforesaid injured condition in the room where accused Rizwan @ Sonu and Ranjeet were found awake and from the testimony of PW14, it is also evident that immediately thereafter both the accused SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 41 of 52 taking PW15 Sudish with them, fled away in the Eicher canter. Thus there is last seen evidence of both the accused with the injured Deepak. Also both the accused not making any hue and cry on seeing victim Deepak in injured condition and trying to run away, creates strong suspicion against them of having caused the injuries to Deepak. Other police witnesses have deposed about finding of blood on the mattress where victim Deepak was lying as well as in the surroundings. Thus it can be safely presumed that victim Deepak had received injuries in the said room only sometime ago. Furthermore there was no 6 th person present in that room during the earlier incident. The bald pleas taken by both the accused in their statements u/s 313 Cr.P.C is not of any help to them qua the presumption u/s 106 of Indian Evidence Act and their subsequent conduct of absconding from the spot after the incident. Besides last seen evidence, there is aforesaid motive on the part of accused Ranjeet (A2). Although proving of motive is not a sinequonon for the case of prosecution to succeed as it is well settled that the motive is in the mind of an accused and many times, prosecution may not get sufficient evidence to prove the same. Although no motive of accused Rizwan @ Sonu (A2) has been proved on record, still proving of motive on the part of accused Rizwan @ Sonu (A2) was not necessary in view of the aforesaid reason. Hence presumption under Section 106 of Indian Evidence Act can be drawn against both the accused that they were the ones who had caused the said injuries to victim Deepak, since both the accused have not been able to rebut the said presumption qua the fact especially within their knowledge as to how the injuries were caused to victim Deepak and who caused the same.

53. Thus in the facts and circumstances and in view of the aforesaid judgments, it can be presumed that the said injuries were caused to the victim by SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 42 of 52 both the accused persons. However there is no eyewitness's deposition as to by what means & in what manner injuries were caused and which of the injuries were caused by which of the accused. Also from the testimony of PW14 Ganesh and PW15 Sudish, the subsequent conduct of both the accused of running away from the spot while taking handicapped PW15 Sudish with them, shows that they had role in causing the said injuries to the victim Deepak and had they been innocent, there was no occasion or reason for them to abscond and rather it was their duty to inform their employer or police, which is not the case herein. Furthermore accused Ranjeet (A2) had got employed victim Deepak (since injured) in the said firm, therefore it was all the more incumbent upon him to inform the employer or the police about injuries to Deepak.

54. As per MLC of victim Deepak Ex. PW1/A, he was brought to Satyavadi Raja Harish Chandra Hospital, Narela, Delhi, on 05/05/2015 at 5.11 a.m. with alleged history of physical assault. It further reveals that injured Deepak was found unconscious with ENT bleeding and on local examination, left eye globe was found damaged, one CLW 4 x 1 cm on left side of forehead and multiple abrasion on the right side of face of injured Deepak were observed. As per the observation of Dr. Vikram Dewal, MO (Surgery) on the MLC Ex. PW1/A, patient was unconscious with ENT bleeding, left eye was damaged, right pupil was non reactive to light, CLW over the left side forehead, swelling and multiple abrasions over the left side of face. He also referred Deepak (since deceased) to higher centre/LNJP hospital for further management. From the same, it appears that there was one major injury perhaps by brick on the left side forehead of victim Deepak (deceased), whereas other injuries being abrasions, were minor.

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55. As per postmortem report Ex. PW6/A, Deepak died on 06/05/2015 at 5.45 p.m. at LNJP hospital and on external examination, following injuries were observed on his person:

i) stitched lacerated would of length 5 c.m. present on the left side of forehead placed 3 c.m. above to left eyebrow and 4 c.m. outer to midline.

ii) contused abrasion, reddish brown, of size 12 c.m. x 8 c.m. present on the left side of face, 4 cm outer to midline, 2 cm below left zygomative bone.

55.1. Further as per postmortem report Ex. PW6/A, the cause of death was cerebral damage consequent upon blunt force impact via injury no. 1 which was sufficient to cause death in ordinary course of nature.

56. Ld. Counsel for accused Rizwan @ Sonu (A1) has argued that in view of the following contradictions/discrepancies/lacunae in the case of the prosecution, accused Rizwan @ Sonu is entitled for benefit of doubt and consequent to acquittal:

i) No enmity or motive: It is an admitted case of the prosecution that the quarrel did not occurred between the accused and the deceased Deepak. Therefore no motive exists at the instance of accused for committing murder. Further as per the prosecution story itself, there was no enmity between the deceased and the accused.

ii. Contradictions/depositions of witnesses:

a) That PW7 namely Deepak Tokas deposed that the accused Rizwan @ sonu reached at the transport office at about 7.00 p.m. in evening, while PW14 namely Ganesh deposed that the accused immediately after 1 hour SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 44 of 52 or so, reached at the transport office, creating an eventual doubt in their testimony.

b) That PW14 namely Ganesh deposed that he tried to catch the accused persons but in vain and the accused persons initially loaded hand rickshaw of handicap Sudish and thereafter they managed to run away from the spot in a Canter. However, on the other hand PW15 namely Sudish deposed that 1015 nearby persons gathered there and thereafter accused Rizwan @ Sonu took him towards the Eicher canter and they left from the spot and then accued Rizwan @ Sonu dropped him at Lal Qila.

c) Contradiction in the manner of arrest of the applicant/accused: That PW7 deposed that he called the accused on the instruction of the police persons and when the accused reached there, the police officers arrested him who were already present there.

On the other hand, PW14 namely Ganesh deposed that he was instructed to make a call on the phone of accused and he did accordingly. He further deposed that after one hour or so, accused reached there and then only they apprehended him and called to the police persons.

d) conduct of the applicant/accused: The above material contradiction in the statements of the witnesses itself shows that the accused is innocent and he was falsely implicated in the present case by the police in connivance with the local police officers.

56.1. In support of his arguments, ld. Counsel for accused Rizwan @ Sonu has relied upon the judgment of Hon'ble Supreme Court of India in the case of i) 'Mangu Singh & Ors. Vs Dharmendra and Ors'., MANU/SC/1459/2015, date of SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 45 of 52 decision:16/12/2015 & ii) 'Tika Vs. State of U.P.', AIR 1974 SC 155 and iii) 'Balraj Singh Vs. State of Punjab', 1976 Cr. L.J. 1471 (DB) (Punjab) of Hon'ble High Court of Punjab & Haryana.

57. Ld. Counsel for accused Ranjeet (A2) has argued that PW14 who is the complainant of the case, in his examinationinchief has stated that on the day of incident "upon seeing them quarreling, I asked accused Ranjeet, Rizwan as well as Deepak for leaving the said office and accordingly, they had left my office" and in the crossexamination, the said witness has stated that he slept at 10.0010.30 p.m. and wakeup at 2.00 a.m. and in between the incident had taken place. He has further argued that thus there is no corroboration in statement of PW14 before the court and his previous statement u/s 161 Cr.P.C. recorded by the police. He has further argued that PW14 resiled from his earlier statement and did not support the case of prosecution and was crossexamined by ld. APP but the said PW denied the specific suggestions of ld. APP. He has further argued that PW14 stated that he was threatened by the police officials and said that "it is correct that the police had also threatened me to give my statement. Voltd. I was threatened to give correct statement, otherwise I shall also be put behind the bar". Ld. Counsel has further argued that PW15 has stated in his examinationinchief that on the day of incident, after taking dinner, he went to sleep and on or about 2.00 a.m., he wokeup hearing some noise and when he wokeup, he had seen Deepak lying in injured condition on a bed and that in the meantime, 1015 persons were there and thus there is no corroboration in the statement of PW15 recorded in the Court and his previous statement u/s 161 Cr.P.C. made to the police. He has further argued that PW14 has stated in his examinationinchief that he tried to contact his employer namely Deepak by making several phone calls to him but his mobile SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 46 of 52 phone number was switched off and he had left the place of occurrence on or about 2.00 a.m. and reached within 5 minutes to his employer's house, whereas PW7 (employer) has stated that Ganesh (complainant) was not having any mobile phone with him as accused Ranjeet had also taken away his mobile phone and further stated that Ganesh had not made any call to him before coming to his house and further stated that Ganesh had come to his house about 4.30 p.m. He has further argued that there are contradictions in the statement of PW7 & PW14 and benefit of doubt goes in favour of the accused. Ld. Counsel has further argued that in his crossexamination, PW3 ASI Ram Kumar, duty incharge of mobile crime team and PW4 Constable Mahesh, duty photographer of the crime team stated that they also found small piece of stones over the bed lying in the said office and till the time they remained at the spot, IO had not seized any exhibit from the spot. He has further argued that report Ex. PW3/A shows that "pathar ke chote chote tukade pade the". He further argued that on the other hand PW13 stated in his examinationinchief that during investigation efforts were made to effect the recovery of weapon of offence i.e. stone piece, but in vain, which shows that IO intentionally not seized the weapon of offence and manipulated things and planted the complainant and eyewitnesses.

58. As regards the aforesaid lacunae/discrepancies/contradictions pointed out by ld. Counsels for the accused persons, the same are not fatal to the case of prosecution in view of the cogent and trustworthy testimony of PW14 Ganesh and PW15 Sudish qua the motive of accused Ranjeet (A2), last seen together of both the accused with victim Deepak (deceased), seeing of victim Deepak (deceased) in injured condition after some time when he was seen together with the accused persons, the presence of both the accused persons SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 47 of 52 when the victim Deepak was found in injured condition in the room and subsequent conduct of both the accused persons in fleeing from the spot, incriminates both the accused persons and lacunae/discrepancies/contradictions pointed out, do not go to the root of the case. It can safely be held that the chain of evidence on all material points against both the accused persons is complete and same gives only one hypothesis that they are the ones who had caused the said injuries to victim Deepak. The law laid down in the judgments cited by ld. Counsel for accused Rizwan @ Sonu (A1) do not help his case in any manner as the facts of the case are distinguishable.

59. Thus from the aforesaid discussion, it stands proved that both the accused had caused the aforesaid injuries to the victim Deepak and injury no. 1 was sufficient to cause his death in ordinary course of nature. However there is no eyewitness account as to how the injuries were caused, in what manner and what were the actual roles of the accused.

60. Rest of the case of the prosecution does not appear to be in dispute and the same even otherwise stands proved by the testimony of other prosecution witnesses and documents exhibited on record.

61. Now it has to be seen whether accused are guilty for the offence u/s 302 IPC or u/s 304 IPC.

62. In Criminal Appeal no. 23012302/2014, 'Gurvinder Singh @ Sonu Vs State of Punjab', date of decision: 08/05/2018, it was held by Hon'ble Supreme Court in para no. 15 to 19 as under: SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 48 of 52 "15. For bringing in operation of "Exception 4" to Section 300 IPC, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.

16. Considering the scope of "Exception 4" to Section 300 IPC, in Sridhar Bhuyan v. State of Orissa, (2004) 11 SCC 395, it was held as under: "8. The fourth exception of Section 300 IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation.

But, while in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A "sudden fight" implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 49 of 52 attaches to each fighter. The help of Exception 4 can be invoked if death is caused: (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to Section 300 IPC is not defined in IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation.

It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression "undue advantage" as used in the provision means "unfair advantage"." (underlining added).

17. The question falling for consideration is the nature of the offence whether it would fall under Section 304 PartI IPC or PartII IPC. The third clause of Section 300 IPC consists of two parts. Under the first part, it must be proved that there was an intention to inflict the injury that is present and under the second part, it must be proved that the injury was sufficient in the ordinary course of nature to cause death. As discussed earlier, deceased Harbhajan Singh was attacked with axe on the head and he sustained multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. The head injury caused to Harbhajan Singh was sufficient in the ordinary course of the nature to cause death. The accused intended to inflict that injury on Harbhajan Singh which is sufficient in the SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 50 of 52 ordinary course of nature to cause death. In Nankaunoo v. State of Uttar Pradesh (2016) 3 SCC 317, it was held as under: "12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder.

For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant.

Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place."

18. Keeping in view the above principle, when we examine the facts of the present case, the deceased sustained head injuries with multiple fractures, right fronto temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain, haemorrhagic contusions in bilateral temporal region and right parietal region. The weapon used in the manner in which the injury was inflicted clearly establish that the appellants intended to cause the injury which is sufficient in the ordinary course of nature to cause death. Having regard to the facts and circumstances of the case, we are of the view that the conviction of the appellants under Section 302 IPC to be modified as conviction under Section 304 PartI IPC.

19. In the result, the conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 PartI IPC and the appellants are sentenced to undergo imprisonment for seven years and the appeals are partly allowed.

63. In this matter also, there is nothing on record to show that there was any premeditation. Injuries were inflicted to the victim Deepak (since deceased) SC No. 58585/2016 FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr. Page 51 of 52 pursuant to the earlier quarrel between him and the accused Ranjeet. From postmortem report of deceased, his death appears to be homicidal and not accidental as suggested by the accused. Merely because the postmortem report of the deceased mentions that injury no. 1 was sufficient to cause death in the ordinary course of nature, the same is not sufficient to fasten liability of causing murder upon both the accused because, firstly, the said report is merely an opinion, secondly, there is no eyewitness account as to how the said injury no. 1 was exactly caused by which of the accused. In such circumstances, requisite intention to commit murder, cannot be attributed upon the accused, specially when it appears that only one blow with brick, was given in causing the said injury no. 1. However it can safely be inferred that the accused had knowledge that the said injury no.1 caused on vital part of body with (perhaps) brick, is likely to cause the death of deceased and both the accused shared a common intention for that. The said view gets reinforced since there was no premeditation and perhaps the act was caused on sudden spur and in anger. In view of the aforesaid reasoning and in view of aforesaid case law, both the accused are liable to be convicted for the offence u/s 304 (PartII)/34 IPC and not under Section 302/34 IPC. Hence both the accused are convicted for the offence u/s 304 (PartII)/34 IPC.



Announced in the Open Court                               (Ashutosh Kumar)        Digitally signed
                                                                                  by ASHUTOSH
On 13th of December 2019                                     ASHUTOSH
                                                         Addl. Sessions Judge: 04 (North)
                                                                                  KUMAR
                                                           Rohini Courts: Delhi
                                                             KUMAR              Date: 2019.12.13
                                                                                16:44:43 +0530




SC No. 58585/2016   FIR no. 409/2015 PS Alipur State Vs Rizwan @ Sonu & Anr.        Page 52 of 52

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State vs . on 13 December, 2019