Delhi District Court
Fir No. 33/2006 Ps R. K. Puram State vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 1 Of ... on 15 November, 2022
IN THE COURT OF MS. VRINDA KUMARI
ADDITIONAL SESSIONS JUDGE-02, SOUTH
DISTRICT, SAKET COURTS, NEW DELHI
CNR NO. DLST01-000056-2009
IN THE MATTER OF
SESSIONS CASE NO. 6886 OF 2016
FIR NO. 33/2006
POLICE STATION : R.K. Puram
UNDER SECTION : 302/323/34/148 IPC
State
Versus
1. Yogesh Kumar @ Labra
S/o Sh. Rajpal Singh
R/o Village Bharthal, New Delhi
2. Hawa Singh
S/o Sher Singh
R/o Village-Rangpuri,
Paggal Colony, New Delhi.
3. Subhash @ Bhola
S/o Sh. Rajender Singh
R/o 8/22, Mehrum Nagar, New Delhi.
4. Ravinder Singh @ Ravi
S/o Dhan Raj,
R/o Village Bharthal, Delhi.
5. Satpal
S/o Sh. Karan Singh
R/o Village Bharthal, Delhi.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 1 of 43
6. Karamveer Singh
S/o Surat Singh
R/o Village Bharthal, Delhi.
7. Pradeep Kumar
S/o SH. Ram Niwas
R/o RZ-A-1, Arya Mohalla, Nangloi.
8. Satender Kumar @ Sate @ Bhondu
S/o Partap Singh
R/o Village Bharthal, New Delhi ....Accused Persons.
DATE OF INSTITUTION : 21.04.2006
DATE OF COMMITTAL : 27.05.2006
DATE OF RESERVING ORDER : 29.10.2022
DATE OF PRONOUNCEMENT : 15.11.2022
JUDGMENT
1. The case of the prosecution against accused Yogesh Kumar, Pradeep Kumar, Hawa Singh, Subhash, Ravinder, Satender, Karamvir and Satpal is that on 17.01.2006 at about 1:15 PM at Moti Lal Nehru College, they all along with one CCL 'A' being armed with deadly weapons which were likely to cause death committed rioting during which accused Subhash hit complainant Jitender Kumar with a wooden danda while accused Karamvir and Satpal held him. All the accused persons, in furtherance of their common intention voluntarily caused simple hurt to the complainant Jitender. Accused Karamvir also hit Somvir Singh Malik on his head with a wooden danda and caused a fatal injury which led to the death of Somvir. Accused Satpal and accused Ravinder Singh also hit Somvir FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 2 of 43 with dandas. All the accused, in furtherance of their common intention, committed murder of Somvir Singh Malik.
2. After conclusion of investigation, the charge-sheet was filed against accused persons, namely, Subhash, Hawa Singh, Pradeep and Yogesh before Ld. MM concerned on 21.04.2006. Cognizance was taken. Vide Order dated 10.05.2006, matter was sent for committal. It was received in the Court of the then Ld. ASJ/PHC/ND on 27.05.2006. Order dated 07.11.2006 shows that supplementary charge-sheet in respect of remaining accused persons was also received and annexed with the main charge-sheet.
CHARGE
3. Charge for the offences punishable u/s 148 IPC, u/s 323/34 IPC and u/s 302/34 IPC was framed against all the accused persons on 13.04.2007. The accused persons pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. Prosecution examined fifty one (51) witnesses in its favour.
Public witnesses in respect of incident dated 12.01.2006
5. PW7 Sh. Kuldeep Singh deposed that he had been FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 3 of 43 working as Lab Assistant in ML Nehru College, Delhi since 1978. On 12.01.2006, he was present in college on his duty from 8:30 AM to 4:30 PM. He did not know any person by the name of Rakesh and Naveen Kumar. He knew only one accused. He pointed out towards accused Pardeep and stated that he was a student of the said college at the relevant time and that he knew him by face but did not know his name. He did not know any remaining accused persons either by their names or by their faces. On 12.01.2006, in between 3:30 PM to 4:00 PM, one boy, whose name he did not know, came running to him while he was present outside the gate of the Lab and told him that some boys were trying to snatch his I-Card and Bus Pass. He was pointing towards canteen. He accompanied that boy towards canteen but by that time, those boys had already gone away from there. He advised that boy to inform him if those boys were seen again in the college and he was further advised to file a complaint with some senior authority of the college.
6. PW12 is Sh. Ravinder who deposed that he only came to know that one student of Moti Lal Nehru College had been murdered three years ago. He did not know whether the deceased was a student of the said college or not. When incident took place, some unknown persons came in the college and started beating the persons standing inside the college. He deposed that he might be able to identify the persons who had assaulted the people standing in the college. However, after seeing the accused persons, he deposed that these accused persons were not the assailants.
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7. PW16 Sh. Naveen Kumar deposed that in the year 2006, he was studying in B.Com (1st Year) in Moti Lal Nehru College, Delhi as a regular student. On 12.01.2006 at about 02:00 PM, he, along with his friend Rakesh, was standing at the main gate of the college. Two boys came and asked Rakesh (PW17) to give his I-Card and on his refusal, they tried to snatch the I-Card. PW16 and PW17 ran towards inside of college where their teacher Sh. Kuldeep (PW7) was standing. They told him about the incident. He accompanied them to the gate of the college but by that time, the aforesaid two persons had gone from there. PW16 did not know the names of those two boys nor could he identify them. He did not complain about the said incident to any other college student.
8. PW17 is Sh. Rakesh Kumar who deposed that in the year 2006, he was studying in B.Com (1st Year) in Moti Lal Nehru College, Delhi in the morning shift. On 12.01.2006, he and his friend Naveen (PW16) were present in the college. On that day, at about 01:30 PM to 02:00 PM, two boys came to them and asked him to show his I-Card. On his refusal to show the I-Card to them, they misbehaved with him. He got scared and went to Kuldeep Sir inside the college and informed him about this. When he along with Kuldeep Sir went to the spot, those two boys had already left.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 5 of 43 Public witnesses in respect of incident dated 17.01.2006
9. PW1 is Sh. Jitender on whose statement (Ex. PW1/C) the present FIR was registered. He, however, turned hostile. His testimony has been discussed later in the Judgment. He proved his MLC (Ex. PW1/A), seizure memo of his blood stained shirt (Ex. PW1/B) and the blood stained shirt (Ex. PW1/1). He denied having given statement Ex. PW1/C to the police. He also did not identify any of the accused persons in the Court. He deposed that he had not seen the incident and that is why he was unable to identify the accused persons.
10. PW3 Sh. Naveen Kumar Malik deposed that in the year 2006, he was doing private job. He did not know any person by the name of Yogesh Kumar S/o Azad Singh, Kuldeep Singh and Ajeet Singh. Deceased Somveer was his cousin brother. He did not know any person by the name of Jitender Kumar. He did not know if any person by the name of Jitender had contested any election or not. He deposed that he did not go in support of any candidate in any college election. On 17.01.2006 in noon time, he was on duty. He did not know any of the accused persons, namely, Yogesh Kumar @ Labra, Pradeep Kumar, Hawa Singh, Subhash @ Bhola, Ravinder @ Ravi, Satender @ Sate @ Bhoonda, Karambir Singh and Satpal. On 17.01.2006, his cousin brother Somveer had gone to Moti Lal Nehru College and there on account of election rivalry, a quarrel had taken place and in that quarrel his cousin Somveer sustained head injuries FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 6 of 43 besides other injuries caused by the students of the aforesaid college and he was hospitalized. In the evening time, he went to Safdarjung hospital and at that time Somveer was serious. He remained there for about 01 to 1½ hour and, thereafter, Somveer was declared dead by the concerned doctor. He remained in the hospital upto 12:00 midnight to 12:30 AM.
11. PW5 is Sh. Anil Kumar who deposed that he was working as Lecturer with Moti Lal Nehru College, Delhi since 16.07.2002. In the year 2006, he was Advisor of the Students Union and due to this, he knew the main students of the college. He had no idea about the students who had contested the elections of the Student's Union in the year 2006. He did not remember as to which candidate had lost the election. On 17.01.2006 at about 01:00 PM, he was taking class at 1st Floor, Room No. 115 at the college. At that time, he heard the noise. On hearing the noise, he came down. After inquiry, he came to know that some outsiders had come armed with dandas and that they fled away from there. One of his student told him that a boy was lying in the play ground of the college. He went to the playground where he found that one boy was lying on the ground and he was not able to stand. He did not know the name of that boy. He advised other students who were accompanying him to take the boy lying there to College Doctor. He also accompanied that boy upto the doctor at the college. Thereafter, he returned to his staff room. Later, he came to know that the said boy was taken to hospital by the students. He knew his student Pardeep Kumar who FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 7 of 43 was one of the accused present in the Court and this witness correctly identified him. He did not know the remaining accused persons, present in the Court either by their names or by their faces.
12. PW6 Sh. Prashant Kumar deposed that in the year 2006, he was regular student of B.A. (Pass) Final year in Moti Lal College, Delhi and was member of Central Council of Students. He and Jitender Kumar had won the elections of Member of Central Council of Students. He belonged to Najafgarh whereas Jitender belonged to Village Dichau, Najafgarh. PW6 identified accused Satpal and deposed that accused Satpal had lost the elections in the year 2006. He did not know the area to which accused Satpal belonged. He did not know whether after election, there was any split between the students or not. He did not know any Naveen (PW16) or Rakesh (PW17). He did not know what had happened on 12.01.2006. Besides Satpal, he also identified accused Pradeep Kumar and Karambeer Singh being his co-students in the college. He did not identify the remaining accused persons either by their names or by their faces. He deposed that he did not know what had happened on 17.01.2006. He did not know any Somvir and he did not know as to how Somvir had sustained injuries.
13. PW13 is Sh. Yogesh who deposed that in the month of January 2006, he along with Somveer had gone to South Campus to collect the I-Card of correspondence studies. When they alighted at the bus stand of route no. 764 and while they were passing in front FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 8 of 43 of Moti Lal Nehru College, they saw some students standing and gossiping there. All of a sudden, some persons started pelting stones from the opposite direction. These persons then ran inside the college in different directions. He did not know in which direction, Somveer ran away. PW13 himself took position behind a car to save himself. He did not know what was the fate of Somveer. He could not identify any of the accused persons who pelted stones. He could not identify whether the accused present in the Court were the same or not who had pelted stones. In the evening, he came to know that Somveer had been murdered in that incident.
14. PW18 is Sh. Kuldeep S/o Sh. Dharam Singh who deposed that in the year 2006, he was a student of 12 th Class, Open School. In 10th Class when he was student of New Manav Bharti Public school, one Yogesh S/o Azad Singh R/o Village Dichau Kalan and Manjeet were also students there. Manjeet used to live in the same locality where PW18 was living. PW18 deposed that he did not remember the exact date, month and year, however, 2-3 years ago, one day in the winter season, he had gone with Yogesh, Manjeet and Sombeer by bus route no. 764 and got down at Moti Lal Nehru College bus stop. Yogesh had to collect his admit card from Old Moti Lal Nehru college. After getting down from the bus, they were going via road in front of Moti Lal Nehru College. A large number of students were present in front of the college. Suddenly some people from across the road started pelting stones on the students standing in front of the college due to which they ran away FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 9 of 43 from there. He did not know any of the students who were throwing stones or those who were standing in front of college. PW18 further deposed that thereafter, four of them had got separated and he returned home. He did not know where Sombeer, Manjeet and Yogesh had gone from there. PW18 denied that he knew any Jitender.
15. PW19 is Sh. Om Vir Singh Shoken who deposed that in the year 2006, he was studying in B.A. 1 st Year through correspondence course from Moti Bagh. He deposed that he did not remember the exact date, however, so far as he could recollect, the date was 14.01.2006 or 15.01.2006. He had gone to Moti Lal Nehru College for issuing books. Jitender Kumar resident of his village called him to the college. At about 11:00 AM to 12:00 Noon, PW19 had gone to Moti Lal Nehru College and met Jitender and they both were near the gate of college, inside the college. In the meantime, stone pelting started from across the road and the students of the college started running. Fifty to sixty students entered inside the college. Some incident had taken place with Jitender. PW19 deposed that he could not see the quarrel as he was at a considerable distance from Jitender. Thereafter, he had gone to Moti Bagh Office of correspondence college for getting issued the book and, thereafter, he came back to his house. He deposed that he had not seen any quarrel and no incident of beating had taken place in his presence.
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16. PW20 is Sushil Kumar Dagar @ Monte who deposed that in the year 2006, he was studying in B.A. 1 st year through correspondence course from External (North Campus). He deposed that no incident had taken place in his present.
17. PW21 is Sh. Manjeet Singh who deposed that in the year 2006, he was doing ITI, Tilak Nagar, DAV ITI. On 17.01.2006, he along with Kuldeep, Sombir, Yogesh had gone to watch film in R. K. Puram. They got down from the bus at Old Moti Lal College as Yogesh Kumar had to get his admit card issued from the college. At the gate of college, many people were gathered. As soon as, they reached at the gate of college, stone pelting started. All of them started running from the gate. He came out side the gate and started waiting for Kuldeep, Sombir and Yogesh Kumar. But they did not come outside the gate. Thereafter, PW21 came back to his house. PW21 deposed that Kuldeep met him after 1½ hours. Kuldeep told him that Sombir had received injuries and he was taken to hospital in a serious condition. PW21 deposed that he had not seen the incident and, therefore, could not say if the accused persons present in the court were there at college and inflicted injuries to Sombir and Jitender.
18. PW22 Sh. Ashish Dagar deposed that he did not know anything about this case. No occurrence had taken place in his presence.
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19. PW23 Sh. Kuldeep Singh S/o Sh. Puran Singh deposed that he did not know anything about this case. No occurrence had taken place in his presence.
20. PW24 Sh. Hari Kishan deposed that about two years back, he had gone to Moti Lal College for duty of guard as regular guard posted at Moti Lal Nehru College was absent. He was on duty from 06:00 AM to 02:00 PM. He did not remember the date or time of incident. He further deposed that no incident had taken place at the main gate of college and no occurrence had taken place in his presence.
21. PW25 Sh. Deepak Gurang deposed that about 3 to 4 years back, he used to work as Security Guard at Moti Lal Nehru College, Delhi, however, he did not remember the exact date, month or year. He was on duty at the parking of college. He further deposed that he did not see anything and later on, a driver told him that a quarrel had taken place in the college. He had not seen the incident.
22. PW27 Sh. Mohan Rai deposed that on 17.01.2006, he was working as Security Guard at Moti Lal Nehru College, R. K. Puram and he was on duty from 08:00 AM to 08:00 PM at the parking of college. He did not see any occurrence and quarrel in the college. PW27 denied that he had seen accused persons present in the Court beating anyone.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 12 of 43 Other prosecution witnesses
23. PW2 is Sh. Ajeet Singh who deposed that on 18.01.2006, he identified the dead body of his brother-in-law (sala) Somvir Singh at Safdarjung Mortuary. He has proved his statement Ex. PW2/A.
24. PW4 is Sh. Dilbagh Singh who deposed that on 17.01.2006, he identified the dead body of his deceased nephew Somvir in the hospital vide statement Ex. PW4/A. He proved the dead body handing over memo (Ex. PW4/B). He identified his signatures at Point C1 on seizure memo of one jacket and one pant of injured Somveer (Ex. PW4/C).
25. PW8 HC Ajit Singh is the photographer in Crime Team who took the photographs of the scene of occurrence from different angles. He proved the positive photographs Ex. PW8/A1 to Ex. PW8/4 and negatives Ex. PW8/A5 to Ex. PW8/A8.
26. PW9 is Inspector Tara Chand who deposed that on 17.01.2006, he along with Crime Team reached at the spot i.e. Moti Lal Nehru College play ground where he inspected the scene of occurrence and prepared report Ex. PW9/A.
27. PW10 Dr. Aneet Wadhwa was Part Time Medical Officer at Moti Lal Nehru College, Delhi at the time of incident. He FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 13 of 43 deposed that on 17.01.2006, at about 01:30 PM, one student Somveer was brought to his room. The injured had lacerated wound on right side of his scalp and there was bleeding from the wound as well as the face of that student. He gave him first aid and dressed his wounds. After seeing that his condition was serious, he referred him to Safdarjung Hospital.
28. PW11 is HC Jai Kishan who deposed that on 17.01.2006 at about 01:15 PM, he received DD No. 17 regarding quarrel at Moti Lal Nehru College. He along with Ct. Bijender reached at the spot where he came to know that injured had been referred to Safdarjung Hospital. Thereafter, he went to Safdarjung Hospital where he found that injured Somveer had been admitted in hospital vide MLC No. 9580/06. He moved an application for recording statement of injured Somveer and proved the said application as Ex. PW11/A. He proved his endorsement on DD No. 17 as Ex. PW11/B. He had made a request for deputing SI Sajjan Singh for further investigation of the case. SI Sajjan Singh reached at the spot and further investigation of the case was handed over to him. Crime team was also called at the spot by SI Sajjan Singh. Ct. Bijender had also reached at the spot after registration of the FIR along with copy of FIR and rukka and he handed over both these documents to SI Sajjan Singh. Thereafter he along with SI Sajjan Singh left for the hospital where they met one person, namely, Jitender who told them about the incident and also that he got the injured Somveer admitted in the hospital. Jitender then accompanied FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 14 of 43 them to the spot of incident. At the spot, Jitender handed over his blood stained shirt to SI Sajjan Singh which was taken into possession. One jacket and one pant of injured Somveer were produced by his uncle (chacha), namely, Dilbagh, which were blood stained and were taken into possession by IO/SI Sajjan Singh. Site plan was also prepared at the spot by SI Sajjan Singh at the instance of Jitender. From the spot, blood control earth and blood stained earth were taken into possession. All the above clothes of Jitender and Somveer were kept in a pullanda and sealed with the seal of SS. Similarly, blood stained concrete, blood stained dry leaves and controlled concrete were sealed after they were kept in small plastic bottles. Crime team had reached at the spot and had taken the photographs of the site. He also proved the seizure memos of blood from the spot, blood stained earth and controlled earth Ex. PW11/C and Ex. PW11/D.
29. PW14 is Ct. Bijender Singh who deposed that on 17.01.2006, on receipt DD No. 17, he along with HC Jai Kishan went to Moti Lal Nehru College at about 01:15 PM where he came to know that injured had already been removed to Safdarjung Hospital by PCR Van. He remained at the spot and HC Jai Kishan went to Safdarjung Hospital. After sometime, HC Jai Kishan returned at the spot and handed over the rukka to him which he took to PS R. K. Puram and got the FIR registered. After registration of FIR, original rukka and copy of FIR was handed over to HC Jai Kishan.
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30. PW15 is L. Ct. Meena who deposed that she was present on duty at the main gate of Moti Lal Nehru College on 17.01.2006 when incident in question took place. Her testimony has been discussed later in the Judgment.
31. PW26 is Ct. Mahinder Singh who deposed that on 18.01.2006, he had gone to Safdarjung Hospital mortuary along with Ct. Vijender and guard. He deposed that so long as the dead body remained in his custody, it was not tampered with.
32. PW28 SI Madan Pal proved the site plan Ex. PW28/A with correct marginal notes.
33. PW29 HC Ram Niwas deposed that on 17.01.2006, at about 01:50 PM, he received wireless message that at Moti Lal Nehru College, some outsider boys had come to quarrel and this information as recorded at Serial No. 17 and copy of the same was given to HC Jai Kishan for necessary action. He proved the said entry Ex. PW29/A.
34. PW30 Dr. Sarvesh Tandan, Sr. Specialist Forensic Medicine S.J. Hospital, New Delhi proved the postmortem report Ex. PW30/A, his subsequent opinion Ex. PW30/B and request containing queries from the IO as well as for opinion Ex. PW30/C. FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 16 of 43
35. PW31 is HC Banwari Lal who deposed that on 21.02.2006, MHC(M) HC Shyam Lal handed over to him 12 sealed pullandas to deposit the same in FSL Rohini. He took the pullandas and deposited the same at FSL Rohini vide RC 131/21.
36. PW32 SI Vishan Lal proved present FIR Ex. PW32/A and endorsement on rukka Ex. PW32/B.
37. PW33 is Ct. Jagat Prakash who joined investigation with the IO. He proved the arrest of accused Satpal vide arrest memo (Ex. PW33/A) and his personal search vide memo (Ex. PW33/B). He also proved the disclosure statement (Ex. PW33/C) of accused Satpal. He also proved the recovery memo (Ex. PW33/D) of one danda / balli recovered at the instance of accused Satpal and pointing out memo of place of occurrence (Ex. PW33/E). The witness proved the disclosure statements of accused Ravinder and Satender (Ex. PW33/F) and (Ex. PW33/G) respectively, their arrest memos (Ex. PW33/H) and (Ex. PW33/I) respectively as well as their personal search memos (Ex. PW33/J) and (Ex. PW33/K). Accused Satender got recovered one danda vide seizure memo (Ex. PW33/L). The danda recovered at the instance of accused Ravinder was seized vide memo (Ex. PW33/M). He proved weapon of offence recovered from accused Satender (Ex. PW/PX1), weapon of offence recovered from accused Ravinder (Ex. PW/PX2) and weapon recovered from Satpal Ex. PW/PX3.
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38. PW34 Dr. Sita Laxmi, CMO, Safdarjung Hospital, New Delhi proved the MLC of Somvir dated 17.01.2006 Ex. PW34/A prepared by Dr. Shankar Kumar.
39. PW35 SI Yogeshwar Singh joined investigation with the IO. He proved arrest memo of accused Yogesh Ex. PW35/A, his personal search memo Ex. PW35/B and his disclosure statement Ex. PW35/C. He also proved seizure memo of one danda measuring 3 ft. 8 inch recovered at the instance of accused Yogesh Ex. PW35/D. He proved the arrest memo of accused Pradeep Ex. Pw35/E, his personal search memo Ex. PW35/F and disclosure statement Ex. PW35/G. He also proved seizure memo (Ex. PW35/H) of one danda measuring 3 ft. 7 inch recovered at the instance of accused Pradeep. The witness proved the arrest memos of accused Hawa Singh and Subhash as Ex. PW35/I and Ex. PW35/J respectively, their personal search memos Ex. PW35/K and Ex. PW35/L respectively and their disclosure statements Ex. PW35/M and Ex. PW35/N. He also proved seizure memo of danda (Ex. PW35/O) recovered at the instance of accused Hawa Singh and seizure memo of danda (Ex. PW35/P) recovered at the instance of accused Subhash. He correctly identified dandas recovered from the above- named accused persons Ex. PX4, Ex. PX5, Ex. PX6 and Ex. PX7.
40. PW36 is HC Manoj Kumar who joined the investigation and deposed that accused Ravinder and Satinder were apprehended from RSD College. They were arrested in this case and FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 18 of 43 were interrogated in his presence. Their personal searches were conducted. He proved arrest memos of accused Karamveer and Anil Ex. PW36/A and Ex. PW36/B respectively, their personal search memos Ex. PW36/C and Ex. PW36/D respectively and their disclosure statements Ex. PW36/E and Ex. PW36/F respectively. He also proved the seizure memos of dandas recovered at the instance of accused Karamveer and accused Anil Ex. PW36/G and Ex. PW36/H respectively. He correctly identified the dandas recovered from accused Karamveer and Anil Ex. PX8 and Ex. PX9.
41. PW37 is SI Harender Singh who was posted at PS R. K. Puram on 24.01.2006 when he joined the investigation with SI Yogeshwar Singh, SI Sajjan Singh and Inspector V. P. Yadav. He proved the arrest of accused Yogesh upon secret information. He was arrested after interrogation vide memo Ex. PW35/A. Personal search memo of accused is Ex. PW35/B. Disclosure statement of accused Yogesh is Ex. PW35/C. The danda was seized at the instance of accused Yogesh vide seizure memo Ex. PW35/D. He also proved the arrest memo (Ex. PW35/E), personal search memo (Ex. PW35/F), disclosure statement (Ex. PW35/G), seizure memo (Ex. PW35/H) vide which weapon of offence was seized at the instance of accused Pradeep. He also proved the arrest of accused Hawa Singh vide memo (Ex. PW35/I) and accused Subhash vide memo (Ex. PW35/J), their personal search memos (Ex. PW35/K and Ex. PW35/L), their disclosure statements (Ex. PW35/M and Ex. PW35/N) as well as the seizure memos (Ex. PW35/O and Ex.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 19 of 43 PW35/P) vide which the dandas were seized at their instance. He also identified the dandas recovered at the instance above-said accused persons as Ex. PX-4, Ex. PX-5, Ex. PX-6 and Ex. PX-7. He also proved arrest memo (Ex. PW33/A), personal search memo (Ex. PW3/B), disclosure statement (Ex. PW33/C) of accused Satpal. He also proved the recovery of danda/balli at the instance of this accused vide seizure memo (Ex. PW33/D). Accused Satpal also pointed out the place of incident vide pointing out memo (Ex. PW33/E). He also proved the arrest memos of accused Ravinder, Satender and Karamveer (Ex. PW33/H, Ex. PW33/I and Ex. PW36/B), their personal search memos (Ex. PW33/J, Ex. PW33/K and Ex. PW36/D) and their disclosure statements (Ex. PW33/F, Ex. PW33/G and Ex. PW36/F). The dandas were seized at the instance of these accused persons respectively vide seizure memos (Ex. PW33/M, Ex. PW33/L and Ex. PW36/G). He also identified the dandas recovered at the instance of these accused persons as Ex. P1, Ex. P2 and Ex. P8 respectively. The investigation conducted in respect of CCL 'A' is not subject matter of the present case.
42. PW38 Ct. Daya Ram was dropped by the prosecution being witness of repeated facts.
43. PW39 Sh. Prem Nath deposed that he was having mobile phone no. 9313326260 of Reliance Company in December 2003 which was sold by him at Gaffar Market. Thereafter, he did not use this mobile phone.
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44. PW40 Sh. Rajpal deposed that he was having a mobile. He only remembered partial digits of the mobile phone number which are 9350 and 00 in the last. It was of Reliance company. PW40 deposed that he used to use that phone and sometimes it was used by his son Yogesh.
45. PW41 Sh. Surender Singh deposed that he did not remember if he had phone no. 9873105003 and he never had landline number in his house.
46. PW42 Sh. Tarun Khurana, Nodal Officer, Bharti Airtel Ltd. proved the printout of record pertaining to mobile number 9810655105 as Ex. PW42/A (Colly.)
47. PW43 is Sh. Sushil Kumar who deposed that he did not use mobile connection of Reliance Company. He was not having mobile no. 9368883058.
48. PW44 is Sh. Ved Prakash, Assistant Nodal Officer, Reliance Communication Ltd. He did not produce the record pertaining to this case. He deposed that the Call Detail Record older than one year was automatically deleted. He, however, identified the print carrying subscriber detail (Ex. PW44/A), CDR pertaining to mobile no. 9313326260 (Ex. PW44/B) (running into six pages) and call detail record pertaining to mobile no. 9312948590 (Ex.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 21 of 43 PW44/C) as the documents of Reliance Communication Ltd.
49. PW45 Sh. Sanjeev Lakra, Nodal Officer, Reliance Communication Ltd. brought the summoned record i.e. Tower Locations of mobile number given in Ex. PW44/A and Ex. PW44/B. On the basis of the record, he provided the names of the towers representing a particular area and location of concerned mobile phones. The said record is Ex. PW45/A.
50. PW46 Dr. V.C. Aggarwal, Chief Medical Officer, Safdarjung Hospital proved the medical history of Somveer (Ex. PW46/A) which is in the handwriting of Dr. Pankaj
51. PW47 HC Shyam Lal proved the entries of depositing of case properties in Register No. 19 at Sr. No. 2178 (Ex. PW47/A) on 17.01.2006. He proved the entries regarding deposit of exhibits seized during postmortem of deceased Somveer in Register No. 19 at Sr. 2179 (Ex. PW47/B) on 18.01.2006. He also proved entries regarding deposit of weapons of offence recovered from accused Rajesh Kumar @ Libra and Pradeep Kumar in Register No. 19 at Sr. 2190 (Ex. PW47/C) and (Ex. PW47/D) on 24.01.2006 and 25.01.2006. He proved the entries regarding deposit of weapons of offence recovered from accused Hawa Singh and Subhash @ Bhola in Register No. 19 at Sr. 2195 (Ex. PW47/E) and (Ex. PW47/F). He further deposed that on 21.02.2006, he sent total 12 exhibits to FSL Rohini through Ct. Banwari vide RC No. 134/21 and the entry to FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 22 of 43 this effect was made at Point A in register no. 19. He further deposed that on 16.05.2006, he along with Inspector B. P. Singh had taken weapons of offence i.e. 9 pieces of "Balli" to Department of Forensic Medicines, Safdarjung Hospital and same were handed over to Dr. S. Tondon for obtaining subsequent opinion. On the same day, Dr. S. Tondon had made some marking on one of the piece of "Balli" and handed over all the 9 pieces of "Balli" to them which they deposited in the malkhana and made entry to this effect. On 27.12.2006, the report from FSL along with above-said exhibits were received through HC Prakash and entry to this effect was made in register no. 19 at Point B.
52. PW48 Sh. B.P. Yadav, Retd. ACP is the Investigation Officer of the present case. He proved the investigation conducted by him.
53. PW49 is Inspector Sajjan Singh who deposed that after registration of FIR, the investigation of the present case was handed over to him. He proved the investigation conducted by him. He also proved the site plan (Ex. PW49/A) prepared at the instance of PW1 Jitender. He correctly identified the case properties i.e. nine pieces of balli (Ex. PX4), one jacket (Ex. P1) and one pant (Ex. P2), one shirt (Ex. PW1/1) belonging to Jitender.
54. PW50 Dr. Naresh Kumar, Senior Scientific Officer, FSL, Rohini deposed that on 21.02.2006, he received 12 sealed FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 23 of 43 parcels. After examining the said parcels, he prepared the report. He proved the said report as Ex. PW50/A (three pages), and serology report Ex. PW50/B.
55. PW51 Sh. Parshuram Singh, Assistant Director (Physics), FSL, Rohini had examined four sealed pullandas and he proved his report as Ex. PW51/A. STATEMENT OF ACCUSED U/S 313 Cr.P.C.
56. Statements of Accused persons, namely, Yogesh Kumar @ Lakra, Satender Kumar @ Sate @ Bhondu, Subhash @ Bhola, Satpal, Ravinder Singh @ Ravi, Karamvir Singh, Pradeep Kumar and Hawa Singh u/s 313 Cr.P.C. were recorded on 29.11.2021, 30.11.2021, 10.12.2021, 14.12.2021, 15.12.2021, 15.12.2021, 16.12.2021 and 20.12.2021 respectively. Accused Yogesh Kumar @ Lakra stated that he had been falsely implicated in the present case. Accused Satender Kumar @ Sate @ Bhondu stated that he had been falsely implicated in the present case. Recoveries had been planted against him. His signatures were taken on blank papers by the police after he was lifted from his house without any reason. Accused Subhash @ Bhola stated that he had been falsely implicated in the present case. No recovery was effected at his instance. He was innocent. Witnesses had deposed falsely against him. He had never visited the said college. Accused Satpal, accused Ravinder Singh @ Ravi and accused Karamvir Singh stated that they had been falsely FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 24 of 43 implicated in the present case. Recoveries had been planted against them. Their signatures were taken on blank papers by the police after they were lifted from their houses without any reason. Accused Pradeep Kumar stated that he had been falsely implicated in the present case. Recoveries had been planted against him. His signatures were taken on blank papers by the police after he was lifted from his house without any reason. He was arrested on 21.01.2006 but was shown arrested on 25.01.2006. Accused Hawa Singh stated that he had been falsely implicated in the present case. No recovery was effected at his instance. He was innocent. Witnesses had deposed falsely against him. He had never visited the said college. All the accused persons preferred not to lead DE.
57. I have heard detailed final arguments on behalf of the accused persons and State. I have perused the record carefully.
DISCUSSION How was offence committed
58. FIR registered on the basis of the statement (Ex. PW1/C) of one Jitender (PW1) discloses that rivalry between the Najafgarh group and Bharthal group of the students on account of Students' Union Elections at Moti Lal Nehru College, Delhi led to murder of deceased Somveer. The FIR would show that the deceased and Jitender were part of the Najafgarh group of students.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 25 of 43 In the last elections, Jitender and one Prashant had won the Student Union's Elections. Accused Satpal who was part of Bharthal group students had lost the elections. It was, thereafter, that the Bharthal group and Najafgarh group of students emerged as did the rivalry amongst them. Boys residing at Bharthal and nearby areas were called the Bharthal group. Boys residing at Najafgarh and nearby areas were called the Najafgarh group.
59. FIR further discloses that on 12.01.2006, there was a scuffle between the two groups on account of the Najafgarh group of students checking the pass of the Bharthal group of students. The matter was sorted out with the intervention of Lab Assistant Kuldeep Singh. However, because of rivalry owing to defeat in previous election, the Bharthal group of students continued to harbour hostile feelings towards the Najafgarh group of students.
60. The case of prosecution as disclosed in FIR is that on 17.01.2006, Jitender Kumar was present in front of the main gate of the college with Yogesh Kumar, Manjeet Singh, Kuldeep Singh, Somveer Singh and Naveen Kumar. These persons had come to meet Jitender Kumar. Other boys of the Najafgarh group, namely, Omvir, Boda, Sushil @ Monty, Ashish Dagar, Bholu, Vineet, Jyoti, Madan, Ravinder and others were also present around.
61. At around 01:00 PM, accused Karamveer Singh, Satpal Singh, Subhash @ Bhola, Yogesh @ Labda, Hawa Singh, Pradeep FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 26 of 43 Kumar, Ravinder, Satender @ Bhondu, Kala, CCL 'A' belonging to the Bharthal group barged inside the gate with thick dandas, pieces of ballis etc. and mounted a sudden attack on the Najafgarh group of students saying, 'aaj inn najafgarh walo ko khatm karna hai'. PW1 Jitender Kumar was targeted first but he escaped towards the college. His associates Somveer, Yogesh Kumar, Kuldeep, Manjeet Singh ran towards the ground. The assailants chased all of them. While Jitender, Yogesh Kumar, Kuldeep, Manjeet Singh, Naveen Kumar saved themselves by escaping towards the wall of photostate room and inside the pump house respectively, Somveer ran towards the ground. The accused persons and their associates surrounded Somveer saying, 'najafgarh group ka khaas aadmi hai isko khatm krna hai'. At the instance of accused Hawa Singh and Yogesh @ Labra, accused Satpal and Satender @ Bhondu held Somveer from both the sides. Accused Karamveer Singh hit Somveer on his head with a thick danda. The assault was so forceful that Somveer got dizzy. Accused Satpal also assaulted him with a thick danda. Somveer fell down. CCL 'A' also hit Somveer on his hand with a danda. All this while, remaining accused persons instigated Karamveer and Satpal to kill Somveer. After Somveer fell down, accused persons checked the condition of Somveer by shoving him with their legs. The accused persons said that Somveer had died and now they should search for other boys of Najafgarh group. On seeing a crowd of people reaching the spot from towards the Ridge area, all the accused fled from the spot.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 27 of 43
62. Jitender with this associates and with the help of Lecturer / Union Advisor Sh. Anil Kumar Sharma took Somveer to medical room of the college. First aid was given but keeping in view the serious condition of Somveer, Jitender took him to Safdarjung Hospital by TSR.
63. Somveer succumbed to injuries. As per the postmortem report (Ex. PW30/A) and testimony of PW30, the deceased suffered the following injuries :
"EXTERNAL EXAMINATION
1) abrasion over nose 4 x 2.6 cm, red in colour
2) lids of right eye were swollen and blue red in colour
3) abrasion over right forearm outer side 6 x 1 cm size elongated and red in colour
4) lacerated wound over right side of head, 5 x 2 cm size, 7 cm above right ear, margin lacerated, hair crushed.
INTERNAL EXAMINATION
1) Head - scalp tissue were contused and lacerated below injury no. 4. Spiral fracture of right temporal and parietal bones, Spiral fracture of left temporal bone. Fracture separation of coronal sutures seen. Sub dural haematom all over. Both temporal and parietal lobes were contused with sub arachnoid hamerrohages in injured lobes. Both frontal poles FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 28 of 43 were contused with sub arachnoid hamerrohages in them.
2. Neck All the structures were intact and NAD (nothing abnormal detacted).
3. Stomach was empty.
OPINION Cause of death was cranio cerebral damage due to blunt force impact diverted upon the head. All the injuries were ante mortem in nature. Injury no. 4 was fatal and caused by heavy hard blunt object, and was sufficient to cause death in the ordinary course of nature.
Time since death was about 17 to 18 Hours approximately.
Clothes and blood gauze sample and scalp hair were preserved and handed over to the investigating officer/police. My detailed report is Ex. PW30/A it bears my signature at point A and is in my handwriting."
64. After seizing the weapons of offence danda balli, vide application Ex. PW30/C, the IO sought subsequent opinion of the Department of Forensic Medicine on following points :
(i) whether the fatal injury no.
04 was possible by the weapon of offence danda balli recovered at the instance of accused Karamveer;
(ii) whether the weapon of offence was sufficient to cause death in ordinary course of nature;
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 29 of 43
(iii) whether the injury was suggestive of the fact that the deceased Somveer was caught from both sides at the time of inflicting this injury;
(iv) whether the injury no. 03 in the postmortem report was possible by the weapon of offence danda balli and was suggestive of the fact that it had been caused in slippery movement of the deceased;
(v) any other valuable opinion the expert deemed fit for the case.
65. The subsequent opinion over weapon of offence of Dr. Sarvesh Tandon, Specialist, Department of Forensic Medicine, Safdarjung Hospital, New Delhi is Ex. PW30/B. This subsequent opinion has a small sketch of the danda balli submitted by the IO. Its dimensions are 3'9'' x 9'' This report shows that two nails are affixed on one end of the danda balli. It has been mentioned in the subsequent opinion report, 'Along with this weapon, eight more somewhat similar 'danda balli' are also brought, on which different white paper strips are pasted'. The expert answered the queries of the IO as follows :
"1. Injury no. (4) as mentioned in PMR No. 90/06 could be possible with this or any other similar weapon.
2. The weapon of offence causing injury no. (4) is sufficient to cause death in the ordinary course of nature.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 30 of 43
3. The magnitude of injury no. (4) is suggestive that it was a full blown impact of the weapon diverted upon the head of the deceased, with chance of minimal movement of the deceased.
4. Yes."
66. PW30 Dr. Sarvesh Tandon while proving his subsequent opinion Ex. PW30/B also opined in his cross examination as follows :
"The present kind of injury is not possible by falling on ground and striking against the hard surface. It can be possible that the blunt object could be any other object than danda, however, in the present case, the object is found danda / balli. The present injury can't be due to accident.
Ques. Whether this type of injury was possible in case the mobility of the deceased was there?
Ans. No."
67. PW30 further stated that it was correct that the danda used for causing the said injury could be a different danda than produced before him. He did not notice any blood stain on the danda examined by him but he saw yellow mud on different parts of the danda.
68. The above said subsequent opinion corroborates the allegation of the prosecution to the extent that the deceased had been FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 31 of 43 held from both the sides when fatal injury was caused on his head. The above-said scientific evidence has proved beyond doubt that the deceased was murdered by infliction of a blunt force on his head.
69. Now the issue under consideration is whether prosecution has been able to prove beyond resonable doubt that the deceased was murdered by the accused persons in furtherance of their common intention.
Eye-witnesses who turned hostile
70. PW1/Complainant Jitender was the star prosecution witness. The present FIR has been registered on the basis of his statement Ex. PW1/C. The contents of the FIR have already been discussed in the preceding paras. Ex. PW1/C is a detailed statement which provides a blow by blow account of the assault by the accused persons upon the Najafgarh group of boys which led to murder of Somveer. In the witness box, however, PW1 turned turtle and explained the event as follows :
"On 17.01.2006, I was present outside the college (Moti Lal Nehru College). I noticed stampede at that time at about 1 pm. Someone had inflicted injury on my beck during stampede. I immediately rushed to Principal room and informed my principal about the quarrel outside. One Mr. Anil Advisor of FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 32 of 43 our college union reached there and informed Principal that one man is lying in the ground. I went there alongwith Mr. Anil, Advisor cum Lecturer.
I saw that one boy was lying there and was in pool of blood. I took him to the doctor in the college. Dr. gave the first aid to that boy. The police officials had also reached in the college by that time. Police directed me to take the injured to the hospital. I was also directed by the police for my medical treatment in the hospital. I was examined in the hospital by the doctor. Injured was also medically examined there. Thereafter I left the hospital and went to my home. My MLC is Ex. PW1/A which bears my thumb impression at point A. After the first aid, I left the hospital and went to my home. When I reached at RK Puram, I received a telephone call from police station. I was called by the police at police station RK Puram. I reached in the police station. I was asked to sit in police station. The police officials asked me about the identity of deceased who was lying in the college and was taken to the hospital. Thereafter I do not know what happened. I cannot identify the assailant because I had not seen the incident.
At this stage all the accused persons present in the court are shown to the witness but witness failed to identify any of them as assailant. Voluntarily FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 33 of 43 ( I had not seen the incident, that is why I am unable to identify any one). My shirt was also retained by the police officials."
71. PW1 denied having given the statement (Ex. PW1/C) to the police. He also did not identify any of the accused persons present in the Court as assailants and stated that since he had not seen the incident, he was not able to identify any of the accused persons. In his cross examination, the State tried to show that he had been won over by the accused persons in the garb of a land deal (Ex. PW1/X and Ex. PW1/D (Colly.)). At this stage, I shall not dwell deeper into the issue whether or not the PW1 reaped monetary benefits from the accused persons for turning hostile. It is suffice to say that the prosecution lost a star witness who could have clinchingly proved the present case against the accused persons. Thereafter, the remaining eye-witnesses i.e. PW3 Naveen Kumar Malik, PW6 Prashant Kumar, PW13 Yogesh, PW18 Kuldeep, PW19 Om Vir Singh Shoken, PW20 Sushil Kumar Dagar @ Monte, PW21 Manjit Singh, PW22 Ashish Dagar, PW23 Kuldeep Singh, PW24 Hari Kishan (Security Guard), PW25 Deepak Gurang (Security Guard) and PW27 Mohan Rai also turned completely hostile and did not support the case of prosecution.
72. PW16 Naveen Kumar, PW17 Rakesh Kumar and PW7 Sh. Kuldeep Singh (Lab Assistant) also did not identify the accused involved in the incident dated 12.01.2006 that preceded the FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 34 of 43 murderous assault on 17.01.2006.
The sole testimony of PW15 W/Ct. Meena
73. The entire case of prosecution hinges on the sole testimony of PW15 W/Ct. Meena who deposed in her examination- in-chief as follows :
"On 17.01.2006, I was posted at PP Sector 12, R. K. Puram, Delhi. On that day, I was on duty at Moti Lal Nehru College, Nanak Pura, Delhi. On that day, at about 1.00 pm, when I was presnt at the main gate of the college, I saw that a ground of boys carrying wooden ballis in their hands went inside the college. A lot of other students were present inside the college. The boys who had come from outside were shouting "maro maro". Those boys who had come in the college from outside and who were carrying ballis in their hands are the accused persons, present in the court today. I can identify them by face but I cannot tell their names separately. I had heard them saying each others names as Karambeer, Satpal, Yogesh, Virender, Hawa Singh, Pardeep, Ravinder, Subhash etc. On that day, two security guards, namely, Hari Kishan and Kuldeep were also on duty with me on the main gate of the college. Those boys had gone towards back of the college building and there they had FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 35 of 43 attacked another boy whose name I came to know afterwards as Sombeer. When I had seen the accused persons going inside the college with ballis, I had followed them. On the way, I had also requested other college students to come with me to prevent any untoward incident but none of the students came forward and I went along after the accused persons. When the accused persons were assaulting Sombeer, I was present at some distance from the spot and I had seen the accused persons beating the deceased Sombeer. Before assaulting Sombeer, the accused persons had also attacked other college student, namely, Jitender Shokeen near the main gate itself and after assaulting him, they had gone towards the back of the building. After causing injuries on Sombeer, all the accused persons had fled away from the spot. Sombeer was first taken to the lady doctor present in the college by some other college students. Thereafter, he was rushed to Safdarjung Hospital where he had died.
I used to be on duty in the college prior to this incident also, because of which I knew that there were two groups and the other was Najafgarh group. The accused who had killed Sombeer were from Barthal group. IO of this case made inquiries from me and I narrated him whatever I had seen. My statement was also recorded by the IO. Jitender had sustained FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 36 of 43 injuries on his "konch" while injuries on Sombeer were mainly on his head."
74. In her cross examination, PW15 stated that after the assault, at about 01:30 PM, all the assailants fled from the spot. Before the incident of assault on Somveer, she had informed the police at 100 number identifying herself as Ct. Meena. PW15 further stated in her cross examination that the PCR Van arrived after the assailants had fled away from the spot. She admitted that HC Jai Kishan posted at Police Post Nanak Pura had also come as head of the team which arrived in response to the call but he did not record her statement. She informed him about the incident that she had witnessed. On the other hand, PW11 HC Jai Kishan has deposed that on receipt of DD No. 17 dated 17.01.2006, he left Ct. Bijender at the spot and went to Safdarjung Hospital where he found Somveer admitted. He tried to search for any eye-witness at the hospital but could not find anyone. He returned to the spot i.e. in the college but even there he could not find any eye-witness. This witness is completely silent about presence of Ct. Meena at the spot. Testimony of PW11 does not corroborate the testimony of PW15. PW14 Ct. Bijender is also silent on this aspect.
75. The State has sought to rely on testimonies of PW24 and PW25 to show that Ct. Meena was on duty at the main gate of the college at the time of incident. It has already been noted that security guards PW24 Hari Kishan and PW25 Deepak Gurang have FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 37 of 43 not supported the case of prosecution. While PW24 claimed that no incident as alleged took place while he was on duty at the main gate between 06:00 AM to 02:00 PM, PW24 deposed that he was not on duty at the main gate on the said date.
76. In their cross examination by State, the security guards PW24 Hari Kishan and PW25 Deepak Gurang admitted that W/Ct. Meena was also on duty on college gate at the time of incident. They, however, denied that all the security guards and W/Ct. Meena chased the accused persons. PW24 also stated in his cross examination that security guards Deepak Gurang and Mohan Rai were on duty in the parking of the college and not at the main gate of the college. PW25 has also denied that he was on duty at the main gate of the college. He deposed that he was on duty in parking of the college. Since PW25 Deepak Gurang deposed that he was not on duty at the main gate of the college, his statement in cross examination that W/Ct. Meena was on duty at the college gate at the time of incident does not carry any weight.
77. The sole assertion of PW24 in his cross examination by State that W/Ct. Meena was on duty at the college gate is not sufficient to prove presence of W/Ct. Meena at the spot more so when he has denied the suggestion that W/Ct. Meena chased the accused persons after they barged into the college. This witness has denied that the accused persons entered the Moti Lal Nehru College armed with dandas and ballis at around 01:00 PM.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 38 of 43
78. No documentary evidence has been placed on record to show that Ct. Meena was present on duty at the spot at the time of incident. Her statement was recorded by the IO only on 19.01.2006 i.e. two days after the incident. The delay of two days in recording the statement has not been explained anywhere by the prosecution. Ld. Counsel for the accused persons has pointed out that no record of the PCR call made by her has been proved. The perusal of charge- sheet would show that the investigating agency was set into motion on receiving DD No. 17 dated 17.01.2006 PP Nanak Pura, PS R. K. Puram (Ex. PW29/A) vide which wireless message was received by Ct. Roop Kishore, No. 1876/PCR regarding boys who arrived at Moti Lal Nehru College from outside after a quarrel/fight. There is no mention of any caller. The information was handed over to PW11 HC Jai Kishan for further action. As discussed above, HC Jai Kishan is silent about presence of Ct. Meena at the spot. He has deposed that he found no eye-witness at the spot.
79. Ld. Additional PP for State has relied upon Judgment dated 15.03.2012 of Hon'ble Supreme Court of India in Crl. Appeal No. 984 of 2007 titled as Govindaraju @ Govinda Vs State by Sriramapuram P.S. & Anr. in support of his contention that it was a well settled proposition of law of evidence that it is not the number of witnesses that mattered but it is the substance. Further, if the testimony of the sole police eye-witness was reliable, trustworthy, cogent and duly corroborated by other witnesses or FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 39 of 43 admissible evidences, then the statement of such witness cannot be discarded only on the ground that he is a police officer and may have some interest in success of the case.
80. In the present case under consideration, the presence of W/Ct. Meena at the spot has not been corroborated by any prosecution witness or any admissible document. In fact, her statement u/s 161 Cr.P.C. was recorded two days after the incident. The delay in recording of her statement has not been explained. In Judgment dated 20.10.2016 in Crl. Appeal Nos. 1624-1625 of 2013 titled as Harbeer Singh Vs Sheeshpal & Ors., it has been reiterated by Hon'ble Supreme Court of India that it was well settled law that delay in recording the statement of witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court.
81. The testimony of PW15 Ct. Meena is, therefore, not of such unimpeachable and water light quality that conviction of accused persons could be based on it.
Other incriminating evidence
82. With all the eye-witnesses having turned hostile and the testimony of PW15 Ct. Meena losing its sheen, I shall now examine if there is any other incriminating evidence against the accused FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 40 of 43 persons. The prosecution has drawn the attention of the Court upon the recoveries of weapons of offence at the instance of the accused persons.
83. Accused Yogesh got recovered one balli danda from the Ridge area near Moti Lal Nehru College vide seizure memo Ex. PW35/D. Accused Pradeep got recovered one balli danda from the bushes on the west corner at the Ridge near Moti Lal Nehru College vide seizure memo Ex. PW35/H. Accused Hawa Singh got recovered one balli danda from the bushes behind the canteen vide seizure memo Ex. PW35/O. Accused Subhash got recovered one balli danda from a place near the middle wall of Moti Lal Nehru College and Ram Lal College towards the side of Ram Lal College vide seizure memo Ex. PW35/Q. Accused Satpal got recovered one balli danda from the Ridge area parallel to the playground of Moti Lal Nehru College towards North side vide seizure memo Ex. PW33/D. Accused Satender got recovered one balli danda from the bushes of Ridge area near naala (drain) parallel to the playground of Moti Lal Nehru College towards the North side vide seizure memo Ex. PW33/L. Accused Ravinder got recovered one balli danda from the playground towards the stairs vide seizure memo Ex. PW33/M. Accused Karamvir Singh got recovered one balli danda from bushes in the Ridge area towards North side of Moti Lal Nehru College playground vide seizure memo Ex. PW36/G. CCL 'A' got recovered one balli danda from bushes in the Ridge area towards canteen at North side of Moti Lal Nehru College playground vide seizure FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 41 of 43 memo Ex. PW36/H.
84. The above-said seizure memos would show that no public person was made a party to the recovery proceedings. The above-said weapons of offence were recovered from open spaces and not from the places to which the accused persons had exclusive access. The testimony of PW30 Dr. Sarvesh Tandon would show that no blood stains were noticed on the danda (seized at the instance of accused Karamveer) examined by him. It is not the case of the prosecution that the weapons of offence were blood stained. Now that the presence of accused persons at the spot at the time of incident dated 17.01.2006 itself could not be proved by the prosecution beyond reasonable doubt, the above-said recoveries at their instance from open spaces easily accessible to people also stand on feeble ground. Conviction of the accused persons on the basis of such recoveries cannot stand.
CONCLUSION
85. To conclude, presence of the accused persons at the spot or that they were part of the unlawful assembly could not be proved beyond reasonable doubt. It could also not be proved beyond reasonable doubt that the accused persons, in furtherance of their common intention injured PW Jitender and murdered deceased Somvir Singh Malik. Circumstances of the case as discussed above call for grant benefit of doubt to all the accused persons. The FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 42 of 43 accused persons, namely, Yogesh Kumar @ Labra, Hawa Singh, Subhash @ Bhola, Ravinder Singh @ Ravi, Satpal, Karamveer Singh, Pradeep Kumar and Satender Kumar @ Sate @ Bhondu are acquitted of the charge for the offences punishable u/s 148 IPC, 323/34 IPC and 302/34 IPC.
86. Even though benefit of doubt has been granted to the accused persons, prosecution did establish the manner of death of the deceased Somvir. In these circumstances, matter is referred to DLSA for the purpose of determination and payment of compensation u/s 357A Cr.P.C. to the dependents of the deceased who had suffered loss as a result of the crime.
PRONOUNCED IN OPEN COURT ON THIS 15th DAY OF NOVEMBER 2022 VRINDA Digitally signed by VRINDA KUMARI KUMARI Date: 2022.11.17 15:31:52 +0000 (Vrinda Kumari) ASJ-02, South District Saket Courts, New Delhi.
FIR No. 33/2006 PS R. K. Puram State Vs Yogesh Kumar & Ors. 15.11.2022 Pg No. 43 of 43