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Delhi District Court

Fir No. 145/2013 Ps Mahendra Park State vs Amit @ Dabar Etc. Page 1 / 53 on 28 August, 2019

    IN THE COURT OF ADDITIONAL SESSIONS JUDGE ­05:
       NORTH DISTRICT:ROHINI COURTS: DELHI

CNR No. DLNT01­000238­2013
S.C. No. 57443/2016
FIR No.145/2013
P.S. Mahendra Park

State

Versus

1. Amit @ Dabar S/o Dharam Raj
   R/o C­1659, Jahangirpuri, Delhi.
  (Accused expired in jail on 31.12.2017 and proceedings
  against him abated vide order sheet dated 16.4.2018.)

2. Pankaj S/o Vinod Kumar
   R/o Jhuggi No. 101/7CD Park,
   Jahangirpuri, Delhi.

3. Ankush S/o Ajay
   R/o I­401, Top Floor,
  Jahangirpuri, Delhi.

                                 Date of Institution                : 18.09.2013
                                 Date of arguments                  : 01.08.2019
                                 Date of Decision                   : 28.08.2019

JUDGMENT

1. Prosecution case in brief is that Kamal Bansal (deceased) was residing with his girlfriend in the house of Ankush (A­3) but was not paying the expenses to him, which FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 1 / 53 led to a quarrel between Kamal Bansal and Ankush (A­3). On this, Kamal Bansal along with his girlfriend left the house of Ankush (A­3) without paying expenses to him and shifted to his factory. This enraged Ankush (A­3). With a view to teach Kamal Bansal a lesson, he discussed the matter with two criminals namely Amit @ Dabar (A­1) and Pankaj (A­2). On 29.05.2013, Amit (A­1) borrowed a motorcycle from his relative. Thereafter, Amit (A­1), Pankaj (A­2) and Ankush (A­3) went to the house of brother of Kamal Bansal at about 10:30 pm. He told them that Kamal Bansal was at his factory. On 30.05.2013 at about 1:30 am, all the accused persons reached on that motorcycle to the factory of Kamal Kumar Bansal and asked him to accompany them. Amit @ Dabar (A­1) told Kamal Bansal to pay money to Ankush (A­3) but Kamal Bansal refused. Ankush (A­3) caught hold of Kamal and Pankaj (A­2) hit the head of Kamal with a stone due to which Kamal was seriously injured. All the three accused persons fled on the motorcycle. However, one ASI Inderjeet and Ct. Kuldeep were passing through that place in performance of their duty. They chased motorcycle, saw the accused persons and also noted the number of the motorcycle. The injured was taken to hospital by PCR Van. Kamal succumbed to injuries and died on 5.6.2013.

Investigation by S.I. Hemant on 30.5.2013

2. On 30.05.2013, a PCR call was received vide DD No. 7A at 2.03 AM that a person was lying injured near I­700 Jahangir Puri , Ramgarh Village, Gali No. 8, near Anand Maya Hospital. On this call, SI Hemant ( PW23) reached at the spot alongwith Const. Laxman ( PW12), where the complainant namely Bhagwat Singh ( PW2) met him. Blood was found on the gali road. It was learnt that PCR van had taken injured to BJRM Hospital. SI Hemant left const. Laxman at the scene to safeguard it and reached at BJRM Hospital and collected MLC Ex. PW9/A of injured Kamal Kumar Bansal s/o Sh. Jhaman Lal R/o D­148, Jahangirpuri , Delhi aged 25 years. The attending doctor observed A/H/O found unconscious on road side, O/E Pt. Unconscious Lacerated wound on occipital region about 4 x 2 cm in size. Patient was referred to LNJP Hospital for further treatment. SI Hemant reached back to scene of crime and examined the complainant ( PW2). He stated that he is doing business in the name and style of Paul Timber Store in Ram Garh and he keeps his fattas and ballies in front of Gali No. 8, Ram Garh. He also sleeps there to take care of fattas and ballies. On 29.05.2013 , he was sleeping in the said park and he heard that some was shouting "ruk ja, ruk ja". Thereafter, some quarrel started . He saw that two FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 3 / 53 persons came on red colour motorcycle and one person was being dragged by another person. Thereafter, the person who dragged the other person also rode on the motorcycle in which two other persons were sitting. Thereafter, motorcycle went from Anand Maya Hospital towards main road. Complainant ( PW2) stated that he could not see the number of motorcycle . Thereafter, he made a call at 100 number from his mobile phone.

3. SI Hemant prepared a rukka on the statement Ex.PW2/A of Bhagwat Singh and sent const. Laxman to police station for registration of FIR u/s 307/34 IPC. Crime Team was called at the scene of crime. The scene was inspected and photographed. Site plan was prepared on the pointing out of the Bhagwat Singh. Incharge Crime Team and the photographer of the Crime Team were examined U/s 161 Cr.P.C. The SOC report was placed on the file. SI Hemant then lifted exhibits through seizure memo which included blood on cotton, blood stained earth and earth control. The crime team was then discharged from the scene.

4. In the meantime, two police officials i.e. ASI Inderjeet ( PW6) and const. Kuldeep came from the side of Sanjay Enclave on a scooter. These two officials had gone in response to a call of a different quarrel, regarding which DD No. 4­A was lodged in PS Mahendra Park. After FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 4 / 53 attending the call, they were returning to PS Mahendra Park when PW2 Bhagwat Singh met them on Gali NO. 8. PW2 told them that on a red colour motorcycle, three boys had escaped after killing a boy . Thereafter, police followed the motorcycle and PW6 saw all the accused persons on the motorcycle but they were able to escape. PW6 noted down the registration number of motorcycle and gave it to SI Hemant.

5. SI Hemant then visited house of injured where he met PW3 Pradeep Bansal , brother of the injured. He told that on the night of 29/30.05.2013 , three persons named Ankush, Pankaj and Amit came to his house and asked for Kamal Bansal. Pradeep Bansal informed them that Kamal was available at his factory at Ramgarh. Ms Maaneka @ Nirmal was found present in the factory of Kamal Bansal at B­39, Ramgarh, Delhi. On questioning, it was learnt that she had been living with Kamal Bansal at J­999, Jahangirpuri, Delhi since last about one and half month. Last night , she was with Kamal Bansal at his factory. She told that Ankush , his friends Pankaj and Amit came yesterday night at factory. They called and left with Kamal Bansal. In the morning, she came to know that Kamal had been hit on his head and taken to hospital. From there, SI Hemant ( PW23) went to LNJP Hospital where Duty Head Const. Narender Rana FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 5 / 53 ( PW16) handed over a sealed packed sealed with the seal of LNH which contained clothes worn by the the injured at the time of incident. The same was seized through seizure memo Ex.PW16/A . SI Hemant Kumar then returned back to police station.

Investigation by S.I. Hemant on 31.5.2013

6. On 31.05.2013, SI Hemant contacted registered owner of the motorcycle no. DL 8SAR 7632 namely Rambir Singh R/o J­661 , Mangolpuri ( PW5) . He and his son Sandeep ( PW8) were examined and their statements U/s 161 Cr.P.C. were recorded. Sandeep stated that he gave his father's motorcycle to his cousin Amit @ Dabar for riding.

7. During the course of further investigation, ASI Inder Jeet ( PW6) was shown photographs of criminals on the online dossier system. He identified Pankaj s/o Vinod Kumar , r/o Jhuggi No. 101/7, CD Park, Jahangirpuri and Amit S/o Dharam Raj r/o C­1659, Jahangirpuri, Delhi as the ones who were going on the red colour motorcycle no. DL 8SAR­7632 . Search was mounted for the suspects but to no avail as they had been absconding from their houses. Investigation by Inspector Rajender Dubey on 5.6.2013 and 6.6.2013

8. On 05.06.2013, information vide DD No. 67­B was received from LNJP Hospital that injured Kamal Bansal had FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 6 / 53 died. Inspector Rajender Dubey ( PW25) took over the investigation of the case. Post mortem was conducted vide PM Report Ex. PW22/A dated 06.06.2013 at MAM Collage, New Delhi. The dead body was got identified by Mukesh Chand ( PW18), uncle of the deceased and Sita Ram ( PW17) brother­in­law of the deceased. PM doctor handed over blood gauze piece of the deceased which was taken over in police custody through seizure memo Ex.PW23/D. Postmortem report was collected. As per PM report " Death is due to craniocerrebral damage consequent upon blunt force trauma to the head ( via injury no. 1). Injury No. 1 is sufficient to cause death in ordinary course of nature injury no. 1 and injury no. 2 are caused by blunt force impact." Section 302/34 IPC was added. After post mortem, the dead body was handed over to his kins.

Investigation by Inspector Rajender Dubey on 7.6.2013

9. On 7.6.2013, on the secret information, Inspector Rajender Dubey ( PW25) alongwith his team reached at Gali No. 3, Swaroop Nagar. Getting into the gali, suspect Pankaj s/o Vinod Kumar r/o Jhuggi No. 101/07, CD Park, Jahangirpuri, Delhi and Amit @ Dabar s/o Dharam Raj r/o H.No. C­1659, Jahangirpuri, Delhi were found standing in front of H.No. D­226, Gali No. 3, Swaroop Nagar, Delhi. The gali was closed from the other side. They were, therefore, FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 7 / 53 apprehended. They were questioned about the incident. They accepted their role in the incident. They were , therefore, arrested as per laid down procedure. They were asked about the third suspect i.e. Ankush. Pankaj expressed possibility that Ankush might be staying with one Jai Prakash @ Mulla. Again, help of informer was taken to know address of Mulla. The informer happened to know his house. He took police to J­Block and indicated with hand the house of Jai Prakash @ Mulla. Enquiries were made at his House NO. K­398, Jahangirpuri, Delhi where Ankush S/o Ajay r/o J­999, Jahangirpuri, Delhi was found present alongwith his wife Deepa. He was questioned regarding the incident. He accepted his guilt and role. He was , therefore, arrested as per laid down procedure. Intimation of his arrest was given to his wife. He was then interrogated in detail and whatever he stated was reduced into writing as his disclosure memo. He ( i.e. A­3) pointed out the motorcycle no. DL­8SAR­7632 , colour red , found parked in front of the house no. K­398­99 , Jahangirpuri, Delhi. The keys of the motorcycle were produced by the accused Ankush from inside the house. The motorcycle and keys were seized vide seizure memo Ex.PW23/M. Accused Ankush was kept in muffled face.

10. In his disclosure Ex. PW23/L­3 dated 7.6.2013, Ankush told that Kamal Bansal was staying at his house with his girl friend Maneka since last one and half month. Expenses incurred were born by him. When he asked Kamal Bansal to give him money , he refused and rather rebuked him. Ankush tried to intimidate Kamal by referring name of Pankaj who is a dreaded criminal and his cousin. But he did not care. Kamal rather took away his girl friend with him to his factory. Ankush informed Pankaj that Kamal was not paying even though he knows about his criminal antecedents. Pankaj then arrived at his house with his friend Amit @ Dabar who is a Bad Character of the locality, on motorcycle no. DL8S­AR­7632. Then, all three rode on the motorcycle to Kamal's house. They learnt from Kamal 's brother that Kamal had gone to factory. All three made up their mind to teach Kamal a lesson. They reached at his factory and called Kamal out of factory. Amit told him that he would have to give money for his stay at Ankush' house. When Kamal tried to run away Amit held him and Ankush started beating him. Pankaj smashed his head with a big stone lying there.

11. Inspector Rajender Dubey deposited motorcycle and the keys in the Malkhana and all the three accused persons were sent to police lock up after their medical examination.

Investigation conducted by Inspector Rajender Dubey on 8.6.2013

12. On 8.6.2013 Inspector Rajender Dubey (PW25) recorded disclosure statements of accused Amit (A­1) and Pankaj (A­2), which are Ex.PW23/L­1 and Ex.PW23/L­2 respectively. I may point out that in the evidence of PW25, disclosure statement of Pankaj (A­2) is mistakenly typed as Ex.PW23/L­3, whereas actually it is Ex.PW23/L­2.

13. All three accused persons were separately asked to point out the places and sequence of the incident. On their pointing out, three separate pointing out memos Ex.PW23/N­1 ( Pankaj), Ex. PW23/N­2 ( Ankush) and Ex.PW23/ N­3 ( Amit) were prepared. Accused Pankaj pointed out a concrete block (Ex.P2) lying in the corner of the gali near the place of incident as the one with which he hit deceased Kamal on his head on that day. The concrete block was examined. It looked as it there were some blood stained left on it. The concrete block was lifted and with the help of a white cloth piece a pullanda was prepared and sealed with the seal of "RKD". The same was taken into police possession through seizure memo Ex.PW23/O. . Accused Pankaj then led Police to a small drain near ITI Jahangirpuri, where he had thrown his clothes which he wore at the time of commission of crime. A search was FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 10 / 53 mounted for the same but to no avail.

Test Identification Parade of accused Ankush (A­3)

14. On 29.06.2013, judicial TIP proceedings ( Ex.PW24/B) were conducted by Sh. Deepak Dabas Ld. MM (PW24) through ASI Inder Jeet (PW6) who identified accused Ankush. The TIP proceedings were placed on file.

Depositing the case property in FSL

15. On 25.6.2013, Const. Gajender (PW15) was sent to FSL, Rohini, Delhi alongwith the FSL form and exhibits. He deposited the 5 sealed parcels vide no. FSL­2013/B­5256 dated 25.06.2013. He returned back and handed over receipt and copy of RC No. 42/21/13.

Conclusion of Investigation as per charge sheet.

16. The charge sheet concluded that the deceased Kamal Kumar Bansal had recently started business of making paper bowls in a shop at B­39, Ramgarh, Delhi rented by his father Jhaman Lal. This shop is referred to as factory by the witnesses. Kamal Kumar Bansal, the deceased victim, brought his girl friend and kept her at the house of accused Ankush ( A­3) at J­999, Jahangirpuri, Delhi . The deceased also stayed there. Both had been living at Ankush's house since about one and half month. The deceased did not pay up for the daily expenses incurred by Ankush. Ankush FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 11 / 53 demanded money from him but the deceased did not oblige. Ankush even threatened Kamal with the names of likes of Pankaj ( A­2) and Amit @Dabar (A­1) who are dreaded criminals of the area. Pankaj is previously involved in 15 criminal cases and Amit @ Dabar is previously involved in 7 criminal cases. But Kamal rather left Ankush's house with his girl friend Maneka without paying him expenses and shifted to his factory at B­29 Ramgarh. This enraged Ankush. He called his cousin Pankaj to teach Kamal a lesson. On the fateful night Pankaj ( A­2) reached at Ankush's house with his friend Amit @ Dabar ( A­1). Amit was riding red colour motorcycle no. DL 8S­AR­7632 which he had borrowed from his cousin Sandeep. Ankush also accompanied them. Ankush ( A­3) rode motorcycle and others rode pillion. All three reached at Kamal's house at D­148, Jahangirpuri, Delhi where Pradeep Bansal, brother of deceased met them. They asked about Kamal. Pradeep Bansal told them that Kamal was at his factory. They then reached at factory at B­39, Ramgarh, Delhi . Ankush called Kamal out. Menaka , friend of Kamal saw Ankush, Amit and Pankaj. Nagender Rai ( PW7) , a neighbour living at the first floor of B­39, Ramgarh, Delhi also saw three persons and noted last numbers of the motorcycle used by them. As soon as Kamal came out, Pankaj ( A­2) held him by his FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 12 / 53 shoulder near neck and demanded why he did not pay up to Ankush. While talking this way, Kamal was taken away from the factory to the end of the gali. Pankaj ( A­2) and Ankush ( A­3) started thrashing with fists and legs. When Kamal resisted, Amit ( A­1) held his hands to overpower him. Pankaj decided to kill him and hit Kamal's head with a big piece of stone lying nearby twice. Kamal collapsed. Pankaj then pulled collapsed Kamal to the side of the road so that he is not detected. All three fled on the motorcycle. Amit left his cousin's motorcycle with Ankush. Ankush also disappeared and started living with his friend Jai Prakash @ Mulla at K­398­99, Jahangirpuri, Delhi and parked the motorcycle in front of the house. Kamal was shifted to JPN Hospital from BJRM Hospital for further treatment. He ultimately succumbed to his injuries which proved fatal. He died on 05.06.2013 at about 3.30 pm. During about seven days of treatment, Kamal Bansal remained unfit for statement.

Filing of charge sheet and its committal

17. With the aforesaid conclusion, charge sheet was filed against all the accused persons in the court of Ld. Additional Chief Metropolitan Magistrate, North on 5.9.2013 with the request that the FSL result was still awaited and that as soon as the FSL result is obtained, subsequent FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 13 / 53 opinion with regard to the weapon of offence would be obtained from the doctor. After compliance of the requirement under Section 207 CrPC, case was committed to Sessions Court. The case was received in this court on 18.9.2013.

Supplementary charge sheet along with FSL Report

18. The FSL report dated 11.12.2013 was filed through supplementary charge sheet as reflected in order sheet dated 4.1.2014 before Ld. ACMM, North. He issued production warrants of the accused persons, supplied its copies to accused persons on 8.1.2014 and the supplementary charge sheet was committed to Sessions Court vide order sheet dated 17.1.2014.

19. As per FSL report, which is admissible perse under Section 293 CrPC, blood of human origin was found on the stone piece. However, no blood grouping could be ascertained as per this report.

Charge

20. After hearing the arguments, charge U/s 302/34 IPC was framed on 3.10.2013 against all the accused persons, who pleaded not guilty and claimed trial. Death of Amit @ Dabar (A­1)

21. Ld. Additional Public Prosecutor has drawn the attention of this court to a report dated 16.4.2018 sent by SI FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 14 / 53 Hemant Kumar, 5th Bn. DAP informing that Amit @ Dabar (A­

1) died in jail on 31.12.2017, information of which was sent to PS Hari Nagar and the same was recorded in DD No. 13A. Thus, proceedings against Amit @ Dabar (A­1) abated vide order sheet dated 16.4.2018 during trial. Prosecution Evidence

22. Prosecution examined in all 25 witnesses which are as under:

PW1 ASI Babu Khan proved FIR Ex.PW1/ A. PW2 Bhagwat Singh runs a store in the name of Pal Timber Store in Village Ramgarh. He testified that on the intervening night of 29/30.05.2013, he heard the noise of quarrel and he saw that one red colour motorcycle came from the side of Anand Maya Hospital and two persons were riding the same. A person who was already quarrelling at the spot, dragged one person up to motorcycle and after dropping the injured at the spot, the said person boarded the motorcycle on which two persons were already sitting. The said motorcycle fled towards Jahangirpuri, Main Road. PW2 testified that he could not note down the registration number of motorcycle due to darkness and he made a call from his mobile phone. PCR officials reached there. He helped them in removing the injured to the hospital. He testified that two police officials came on a scooter from FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 15 / 53 Sanjay Enclave to whom he told that the said motorcycle ran towards main road, Jahangirpuri. Therefore, those officials went towards the side of main road on their scooter. He proved his statement Ex.PW2/A. He also pointed out the place of incident to the police. PW2 testified that police prepared the site plan Ex.PW2/B at his instance.

PW3 Pradeep Bansal is the brother of deceased. He testified that on 29.05.2013 at about 10.30 p.m., all the accused persons came to his house on a red colour motorcycle and enquired about the whereabouts of deceased Kamal . PW3 testified that he informed that his brother Kamal Bansal would be at the factory at Ramgarh. He further testified that on 15.05.2013 , they had installed a machine at their factory for the manufacturing of paper plates and they were clearing pending orders. Therefore, on 29.05.2013, Kamal Bansal remained in the factory whereas he ( i.e. PW2) returned to his house at about 10 p.m. PW3 testified that on the intervening night of 29/30.05.2013, at about 1.45 ­2 a.m. , he received a telephone call from police on his mobile phone that his brother Kamal Bansal had met with an accident and admitted in BJRM hospital.

Accordingly, he reached at the hospital. After 7­8 days, his brother was declared dead. PW3 turned hostile on the point that deceased Kamal Bansal was living with one FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 16 / 53 Monika at the house of accused Ankush from last 1 ½ month and that deceased Kamal Bansal was not paying expenses to accused Ankush which became cause of dispute between the two.

PW4 ASI Naresh Kumar was posted in PCR on 30.05.2013. On receipt of information, he alongwith staff reached in PCR van in Gali No. 1, Ramgarh. They removed the injured to BJRM Hospital.

PW5 Rambir testified that on 29.05.2013 accused Amit @ Dabar has taken his motorcycle no. DL­8SAR­7632 from his son Sandeep. PW5 testified that he was the registered owner of the motorcycle and got it released on superdari. This witness also placed on record the photographs of the said motorcycle which are Ex.PW5/1 to Ex.PW5/ 4. Motorcycle ( Ex.P1) was also produced in the court on that date.

PW6 ASI Inderjeet is important witness. I will discuss his full testimony lateron. In short, he testified that he alongwith const. Kuldeep chased on his scooter the accused persons who were fleeing on a motorcycle No. DL­8SAR­ 7632. On 31.05.2013, SHO showed him the online dossier of criminals in computer on the official website of police. Out of those dossiers, he has identified two criminals namely, Amit @ Dabar and Pankaj as the same persons who were FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 17 / 53 riding on the motorcycle and which was chased by him on scooter on the intervening night of 29/30.05.2013. On 29.06.2013 , he identified the accused Ankush in judicial TIP proceedings. He testified that Ankush was the third person who was riding on the motorcycle.

PW7 Nagender Rai testified that he was working in factory at B­39, Ramgarh and he used to stitch of upper sole of shoes. He testified that in the last days of May, 2013 at about 12 midnight, he went to bed in the factory. Someone rang the bell of the factory. He saw from the first floor that three boys were standing at the main gate of the factory. One motorcycle was also standing near those persons. These boys called the person, who was at found floor and that person came out. However, now he could not identify the accused person. He also turned hostile to the prosecution case that he had seen the number of motorcycle having last 4 digit as 7632.

PW8 Sandeep testified that accused Amit @ Dabar ( A1) is his maternal cousin. He had borrowed his motorcycle bearing no. DL 8SAR­7632 to Amit ( A­1) . He testified that the said motorcycle is registered in the name of his father. Accused Amit @ Dabar did not return the motorcycle to him. Later on, they came to know that the motorcycle was in possession of police.

PW9 Dr. Deepak proved the MLC of deceased as Ex.PW9/A. PW10 SI Naresh Pal was posted in Crime Mobile Team. On 30.05.2013, after received the information from Control Room, he alongwith const. Parvinder, photographer and const. Sandeep, fingerprint proficient went to Gali No 8, Ram Garh , near Anand Maya Hospital where local police officials including SI Hemant were present. He inspected the place of occurrence and saw dragging marks of a body and leg. He took photographs of the place of occurrence and prepared report Ex.PW10/A. PW11 Const. Parvinder was member of Crime Mobile Team who took the photographs of the place of occurrence which are Ex. PW11/ 1 to Ex.PW11/9. He handed over the same to the Investigating Officer.

PW12 Const. Laxman Singh accompanied SI Hemant to the place of occurrence.

PW13 Dr. Amrita proved her opinion on the MLC of deceased that patient Kamal Kumar Bansal was unfit for statement.

PW14 Dr. Ronald Barhari also wrote his opinion that patient was unfit for statement.

PW15 Const.Gajendra Meena took five sealed pullanda duly sealed with sample seal alongwith FSL form FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 19 / 53 for depositing the same in FSL Rohini vide RC No. 42/21/13 .

PW16 HC Narender Rana testified that on 05.06.2013, he was posted as Duty Const. at LNJP Hospital . He informed to Police Station Mahendra Park regarding the death of Kamal Bansal. On 30.05.2013, he received from doctor/ hospital staff one pullanda duly sealed with the seal of LNH NEW DELHI alongwith sample seal which he handed over to SI Hemant Kumar who seized the same vide seizure memo Ex. PW16/A . The said pullanda was containing clothes of deceased Kamal Bansal.

PW17 Sita Ram Mangia and PW18 Mukesh Chand Bansal are relatives of deceased who identified the dead body of deceased.

PW19 ASI Ashok Kumar as MHC(M)who proved the entries in register no. 19 as Ex.PW19/A. He testified that SI Hemant Kumar deposited the case property mentioned at Sl. No. 1733 in his register no. 19 on 30.05.2013. He further testified that on 06.06.2013, Inspector Rajender Dubey deposited the various case properties which were entered at Serial No. i.e. 1775 on 06.06.2013, Sl. No. 1788 on 07.06.2013 and Sl. No.1811 on 08.06.2013. He further testified that on 25.06.2013 , he handed over 5 sealed pullanda alongwith sample seal and FSL form to Const.

Gajender who deposited the same at FSL.

                   PW20 Const. Anju Bala                     proved the         PCR form
         Ex.PW20/A.
                   PW21 Gopal          Krishan       , Dealing         Asstt.    Transport

Authority proved that motorcycle no. DL 8SAR­7632 was registered in the name of Ranbir. He proved copy of its registration which is Ex. PW21/A. PW22 Dr.Jatin Bodwal proved postmortem report Ex.PW22/A. PW23 is SI Hemant Kumar is the initial Investigating Officer. His investigation has already been discussed by me.

PW24 Sh. Deepak Dabas was posted as Metropolitan Magistrate who conducted the Test Identification Parade of accused Ankush. He testified that witness correctly identified the accused Ankush. He proved TIP proceedings as Ex.PW24/B. PW25 Inspector Rajender Dubey took up the investigation after the death of injured on 05.06.2013. He filed the charge sheet in court of Ld. Addl. Chief Metropolitan Magistrate ( North) after completion of investigation.

Statements U/s 313 Cr.P.C. of accused persons Pankaj ( A2) and Ankush ( A­3).

23. In statements U/s 313 Cr.P.C., both the accused FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 21 / 53 persons denied all the allegations. However, they did not prefer to lead evidence in defence.

24. Final arguments heard. I take up the rival submissions as under:

No motive established

25. Ld. Defence Counsels argue that prosecution has been unable to prove the motive of the crime. Ld. Additional Public Prosecutor submits that it was due to the reason that Ms Maneka, who was residing with the deceased in the house of Ankush (A­3), was not traceable and could not be examined. I would like to refer to 1998 (1) JCC (SC) 101 and para 10 of this judgement is reproduced as under :

In the light of the aforesaid acts, if the case of the prosecution with reference to the motive for the accused to commit the offence is considered, there will be little difficulty in rejecting the same. No doubt, proof of motive is not necessary to sustain a conviction but when the prosecution puts forward a specific case as to motive for the crime, the evidence regarding the same has got to be considered in order to judge the probabilities. It is well settled that motive for a crime is a satisfactory circumstance of corroboration when there is convincing evidence to prove the guilt of an accused person but it cannot fill up a lacuna in the evidence.

26. Therefore, this paragraph sums up the entire law developed till date on the point of "motive". It lays down FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 22 / 53 following principles.

(a) Lack of roof of motive need not result in the acquittal of an accused if the offence is otherwise proved beyond reasonable doubt.

(b) Proof of motive is only a corroborative piece of evidence which forms a satisfactory circumstance in proof of the crime.

(c) The proof of motive cannot be used to fill up a lacuna in the prosecution.

27. In view of above stated principles, if the prosecution is able to prove the crime, absence of proof of motive will not come to the aid of accused.

Effect of non examination of certain witnesses

28. Ld. Defence Counsels argue that prosecution has not examined Ms Maneka, who was the last seen witness and that this non examination is fatal to the prosecution.

29. On the other hand Ld. Additional Public Prosecutor has drawn my attention to the order sheets of this case, which show that repeated summons were issued to Ms Maneka but she could not be traced. My attention is drawn to the report on summons, which were directed to be served through DCP. As per this report Ms Maneka could not be traced despite best efforts. Ld. Additional Public Prosecutor submits that the accused persons are criminals and after such a gruesome event in her life, she must have gone incognito.

30. I have perused the reports on various summons issued by the court to this witness. A report dated 29.12.2013 and another report dated 21.2.2015 shows that both these summons were directed to be served through DCP but these summons returned unexecuted because she could not be traced. It is found that not only efforts were made to serve summons upon her at Delhi address but also in her village Bareil, UP. This is the reason that in view of these reports forwarded by the Office of DCP, she was given up vide order sheet dated 5.3.2015. I am of the opinion that it cannot be said that prosecution has deliberately withheld the said witness. I agree with Ld. Additional Public Prosecutor that after such an incident, she must have thought it proper to go incognito.

31. Ld. Defence Counsels have further pointed out that a material witness Ms Deepa, who is the wife of accused Ankush (A­3), has not been examined by the prosecution in order to prove that accused Ankush was residing at House No. K­398, Jahangir Puri and that he made disclosure statement and got recovered motorcycle and its keys. Further Jai Prakash @ Mulla, the owner of House No. K­398, Jahangir Puri was also not cited as prosecution witness. It is argued by Ld. Defence Counsels that both these witness had deliberately been withheld by the prosecution. Therefore, FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 24 / 53 the recovery of motorcycle and its keys at the instance of accused Ankush (A­3) has become highly doubtful.

32. Ld. Additional Public Prosecutor argues that although it is mentioned in the charge sheet that accused Ankush (A­3) was found at that address along with his wife Ms Deepa but it is highly impractical to join a lady as a witness against her own husband. Regarding Jai Prakash @ Mulla, Ld. Additional Public Prosecutor submits that Jai Prakash @ Mulla was present at the spot, when the recoveries were effected and therefore, his signatures are very much present on the recovery memo Ex.PW23/M of motorcycle and keys. Ld. Additional Public Prosecutor admits that Jai Prakash @ Mulla has not been cited as prosecution witness, which is only a negligence of the Investigating Agency and that prosecution has no reason to withhold the said witness.

33. I have considered the submissions and I fully agree with Ld. Additional Public Prosecutor. If Ms Deepa and Jai Prakash @ Mulla were deliberately not cited as prosecution witnesses, nothing stopped the accused Ankush (A­3) to produce these witnesses in defence in order to disprove the aforesaid recoveries. It must be kept in mind that both the witnesses were very much available to accused Ankush (A­3) and it cannot be said that A­3 was prevented in any manner to produce the said witnesses in defence. I may refer to 1981 FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 25 / 53 Cr.L.J. NOC 223 (E) Delhi, in which Hon'ble High Court of Delhi observed as under :

"As a matter of experience witnesses of locality do often oblige the accused rather than the prosecution."

34. Ms Deepa and Jai Prakash @ Mulla are known to Ankush (A­3) and therefore, the Investigating Officer would not have thought to cite them as witnesses. Therefore, non examination of the aforesaid witnesses by the prosecution is of no consequence.

35. Ld. Defence Counsels have drawn my attention to the testimony of PW6 ASI Inderjeet, who testified that he along with Ct. Kuldeep were on their scooter and they chased the motorcycle on which three accused persons were sitting. Ld. Defence Counsels argue that Ct. Kuldeep has not been cited as a prosecution witness.

36. Ld. Additional Public Prosecutor on the other hand has argued that since PW6 had seen the accused persons closely, prosecution cited him as a prosecution witness. It is argued that had Ct. Kuldeep been able to see the accused persons properly, prosecution must have cited him as witness. Otherwise also, it is argued that testimony of one truthful witness would be sufficient because the evidence is not to be counted but is to be weighed.

37. I have considered the rival submissions. PW6 ASI Inderjeet has testified in his cross examination that he was driving the scooter and Ct. Kuldeep was sitting on the back seat of his scooter, while they were chasing the motorcycle on which the accused persons were fleeing. Therefore, it is clear that Ct. Kuldeep was a witness to the said fact. PW23 SI Hemant Kumar has testified that when he was lifting the earth control from the spot, ASI Inderjeet along with a Constable came to the spot.

38. I may point out that PW6 has testified in his examination in chief that he chased the said motorcycle and moved parallel to the motorcyclist. The said motorcycle was in a high speed and his scooter was also chasing the said motorcycle. At one time, his scooter was with the said motorcycle and he saw all the three boys, who were riding the said motorcycle. Ld. Additional Public Prosecutors submits that PW6 was cited as a witness because it was he, who saw the accused persons from more close quarters than Ct. Kuldeep, when PW6 brought his scooter paralleled to the motorcycle of accused persons. I agree with Ld. Additional Public Prosecutor on this point. Power of observation differs from person to person and it is upto the prosecution to see as to who would be trustworthy enough to be cited as prosecution witness. Therefore, non joining of Ct. Kuldeep is FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 27 / 53 not fatal to the prosecution case.

Testimony of Bhagwat Singh (PW2).

39. Ld. Defence counsel argued that PW2 Bhagwat Singh was sleeping near his store in the intervening night of 29/30.05.2013. He heard commotion and screaming. Then he saw one red colour motorcycle coming from the side of Anand Maya Hospital . Two persons were riding the same. One person, who was quarrelling at the spot, dragged one person up to the motorcycle and after dropping the injured at the spot, the said person boarded the motorcycle on which two persons were already sitting. The said motorcycle ran towards Jahangirpuri , Main Road. Ld. Defence counsel pointed out that PW2 testified that he could not note down the registration number of the vehicle due to darkness and that he made a call to the police from a mobile phone no. 9540508886. It is submitted by Ld. Defence counsels that PW2 neither noted down the number of motorcycle nor he could identify the riders.

40. Ld. Addl. Public Prosecutor admit this fact but submits that PW2 also testified that two police officials came on a scooter from Sanjay Enclave . He told them that motorcycle ran towards main road , Jahangirpuri and police officials who were on scooter went towards the side of Jahangirpuri. Ld. Addl. Public Prosecutor submits that PW6 ASI Inderjeet FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 28 / 53 also testified that when he reached on the scooter alongwith const. Kuldeep, Bhagwat Singh informed him that three boys were fled away on the motorcycle towards the side of main road after beating one person. Ld. Addl. Public Prosecutor submits that testimony of PW2 is supported by PW6 and important part of res­gestac U/s 6, Illustration (a) of Indian Evidence Act.

41. I have considered the submissions of both the parties and I agree with both of them. It is true that PW2 neither identified the motorcycle nor has identified the three boys but he heard a noise of beating and screaming and also saw that two persons were sitting on a red motorcycle and third person dragging the injured and thereafter, all three fled on the motorcycle.

Evidence of PW3 Pradeep Bansal.

42. Ld. Defence counsel have drawn my attention to the testimony of PW3 who is real brother of deceased Kamal Bansal . He testified that on 29.05.2013 at about 10.30 p.m. , all the accused persons came to his house on a red motorcycle and enquired about Kamal. He told them that he would be at factory at Ramgarh. At 1.45 ­2.00 a.m., on 30.05.2013, he received a telephonic call from police on his mobile that his brother had met with an accident. Ld. Defence counsels argued that accused persons met PW3 at FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 29 / 53 10.30 am whereas incident took place at about 1.45 a.m,i.e. after about 3 hours. Therefore,testimony of PW3 is of no benefit to the prosecution. On the other hand, ld. Addl. Public Prosecutor submit that accused person was searching the deceased and therefore, coming to the house of his brother and making enquiry about the deceased from his brother is strong piece in the chain of circumstantial evidence to prove the evidence.

43. Ld. Defence counsels have assailed the testimony of PW3 on the ground that he turned hostile and therefore, he was cross­examined by Ld. Addl. Public Prosecutor.

44. I have perused the testimony. I find that PW3 turned hostile only partly, that too in respect of relation of his brother ( the deceased) with a lady. It is a natural conduct of a human being that he would try to conceal some indigestible facts in respect of his family member. However, I do not find any discrepancy in remaining part of examination in chief of PW3 where he testified that on 29.05.2013 at about 10.30 p.m. , all the accused persons had come to his house on a red motorcycle and enquired about the whereabouts of the deceased and that he told them that his brother Kamal was at the factory. Testimony of PW7 Nagender Rai.

45. Ld. Defence counsels submit that PW7 Nagender Rai is FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 30 / 53 a worker in the factory of deceased at Ram Garh. He testified that three persons came and one motorcycle was standing near those three persons. As per prosecution, PW7 had stated in his statement U/s 161 Cr.P.C. as Ex.PW7/A that he could see only 4 digits i.e. 7632 of the said red colour motorcycle. However, Ld. Defence counsels submit that PW7 did not support prosecution on this aspect. He could not identify the motorcycle when its photographs Ex.PW5/1 to Ex.PW5/3 were shown to him. Ld. Addl. Public Prosecutor argued that this witness has been won over and is deliberately suppressing the fact that he stated last 4 digits i.e. 7632 of the motorcycle .

46. I have perused the testimony of PW7. He has turned hostile regarding his testimony that he noticed 4 digits i.e. 7632. PW7 also could not identify the accused persons. However, he has proved that three persons had come at the factory of deceased and a motorcycle was parked near them.

Testimony of PW5 Rambir & PW8 Sandeep

47. PW5 Rambir has testified that he is the registered owner of motorcycle bearing no. DL­8AR­7632 ( photographs of which are Ex.PW5/1 to Ex.PW5/4). He testified that accused Amit @ Dabar has taken this motorcycle from his son Sandeep on 29.05.2013. PW8 FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 31 / 53 Sandeep has also testified that his father is the registered owner of this vehicle. On 29.05.2013, accused Amit @ Dabar had borrowed this motorcycle . Later on, he came to know from police that this motorcycle was in their possession . Ld. Defence counsels have tried to assail the testimony of PW5 and PW8 but in vain. Accordingly, I agreed that Ld. Addl, Public Prosecutor with its stand proved that 29.05.2013 accused Amit @ Dabar had taken the said motorcycle from Sandeep.

Disclosure statements, pointing out memos and recovery memo.

48. As per the testimony of PW25, the disclosure statement of accused Ankush (A­3) was recorded on 7.6.2013 Ex.PW23/L­3. Disclosure statement of accused Amit (A­1) Ex.PW23/L­1 and disclosure statement of accused Pankaj (A­

2) Ex.PW23/L­2 were recorded on 8.6.2013 but none of those disclosures bear signature of accused persons. It is submitted that motorcycle and the keys were recovered vide memo Ex.PW23/M, which does not bear signature of A­3. Pointing Out Memos Ex.PW23/N­1, Ex.PW23/N­2 and Ex.PW23/N­3 also do not bear signatures of any accused. Further recovery memo of stone Ex. PW23/O also do not bear signatures of any accused including A­2.

49. It is argued by Ld. Defence Counsels that since disclosure statements, pointing out and recoveries memos are made voluntarily, the accused should not have any difficulty in putting their signatures on the same. Ld. Defence counsels have pointed out that since there are no signatures of accused persons on these memos, therefore the same have no value in the eyes of law.

50. Ld. Additional Public Prosecutor has drawn my attention to cross­examination of PW25 in which PW25 has explained that accused persons refused to sign the same memoes.

51. I have considered the submission and I am of the opinion that if accused persons have not signed their disclosure statements, it is an indicator that no pressure was upon the accused persons when they made the disclosure statements, got the recoveries and pointed out place of incident. It is pertinent to note that A­1 and A­2 had criminal record and have some understanding of legal and police procedures. Therefore, they might not have signed their disclosure statements, pointing out memos and recovery memo's but it does not disprove the fact of their making the disclosure statements, pointing outs and recoveries.

52. PW23 and PW25 have testified that on 7.6.2013, both the accused Amit (A­1) and Pankaj (A­2) were arrested vide FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 33 / 53 memos Ex.PW23/E and Ex.PW23/G and thereafter police arrested Ankush (A­3) vide arrest memo Ex.PW23/J. The disclosure statemetn of Ankush (A­3) was recorded, which is Ex.PW23/L­3. Pursuant to this disclosure, the motorcycle was recovered, which was found parked outside the house of Jai Prakash @ Mulla and keys of the motorcycle were recovered at the instance of Ankush (A­3) from inside the house of Jai Prakash @ Mulla. The motorcycle and the keys were taken in possession vide recovery memo Ex.PW23/N.

53. Pursuant to the disclosure statements Ex.PW23/L­1, Ex.PW23/L­2 & Ex.PW23/L­3, accused persons pointed out to the place of incident vide pointing out memo Ex.PW23/N­ 1 (Pankaj), Ex.PW23/N­2 (Ankush) and Ex.PW23/N­3 (Amit). At the instance of accused Pankaj, a stone with some blood stains was recovered vide memo Ex.PW23/O.

54. Non presence of signatures of accused persons on these memos do not indicates any illegality in the memos. These memos are only record of proceedings conducted by the police. The testimony of PW­23 and PW­25 have fully proved these memos and I have no ground to disbelieve this evidence.

Law in respect of the circumstantial evidence

55. This case is entirely based upon circumstantial evidence. In 2008 (2) JCC 1080, the Supreme Court of India FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 34 / 53 enumerated following principles in such cases.

This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :

(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly pointing towards guilt o the accused.

(iii) the circumstances, taken cumulatively, should form a chain, so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. [See Gambhir v. State of Maharashtra (1982) 2 SCC 351 : (AIR 1982 SC 1157)]

56. Where the case is based upon circumstantial evidence, the law developed in India till date also looks into the defence of the accused and the explanation offered by the accused to a circumstance put to him at the stage of recording his statement under Section 313 CrPC. The falsity of defence and non explanation of circumstance against the accused has its own consequences.

57. Before dwelling upon the submissions of the parties, I would like to refer to some case law as to how the FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 35 / 53 presumptions would arise and inferences are drawn in a case of circumstantial evidence.

58. In Swapan Patra v. State of West Bengal, (1999) 9 SCC 242, Supreme Court said that in a case of circumstantial evidence when the accused offers an explanation and that explanation is found not to be true then the same offers an additional link in the chain of circumstances to complete the chain. The same principle has been followed and reiterated in State of Maharashtra vs. Suresh, (2001) 1 SCC 471, where it has been said that a false answer offered by the accused when his attention was drawn to a circumstance, renders that circumstance capable of inculpating him. Surpreme Court has further held in this case that in such a situation false answer can also be counted as providing a missing link for completing the chain. The aforesaid principle has been again followed and reiterated in Kuldeep Singh and others vs. State of Rajasthan, 2000 (5) (SC)

161.

59. In Anthony D'Souza vs. State of Karnataka 2003 CRI.

L. J. 434, The full Bench of Supreme Court consisting of Hon'ble R. C. Lahoti, Brijesh Kumar and H. K. Sema, JJ. Opined in para 15 as under :

"By now it is well established principle of law that in a case of circumstantial evidence where an accused offers false FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 36 / 53 answer in his examination under 313 against the established facts that can be counted as providing a missing link for completing the chain".

60. In views of above principles of law, the present case based on circumstantial evidence should be scrutinized. Facts which have been proved by the prosecution till now.

1. PW5 Rambir, the registered owner of motorcycle no. DL8SAR­7632 (Ex.P­1), and his son i.e. PW8 Sandeep have testified that on 29.5.2013, this motorcycle was borrowed by accused Amit @ Dabar (A­1) and he did not return the same. The photographs of this motorcycle are proved as Ex.PW­5/1 to Ex.PW­5/4. These photographs show that motorcycle Ex.P­1 is of red colour.

2. PW3 Pradeep Bansal has testified that all the accused persons came to his house on a red motorcycle on 29.5.2013 at about 10:30 pm i.e. just about three hours before the offence and made inquiries about the whereabouts of his brother Kamal (the deceased).

3. PW3 Pradeep Bansal told them that Kamal Bansal would be at their factory at Ramgarh.

4. Accused persons have not explained as to why they were searching for Kamal Bansal at such late hours of the night.

5. PW7, a worker residing at first floor of the factory at B­39, Ramgarh and a neighbour, testified that at about 1:00 am, he went to bed. Someone rang the bell of the factory. He woke up and saw from the first floor that three boys were standing at the main gate of the factory. Those persons asked him to call the person (i.e. deceased) on the ground floor of the factory. PW7 told FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 37 / 53 them to call the said person themselves from ground floor. PW7 further testified that the person working at ground floor came out and all three persons and employer on the ground floor were standing outside the main gate of their factory. One motorcycle was also stationed near those three boys.

6. PW2 Bhagwat Singh, who is resident of B­92, Village Ramgarh just near the said factory, testified that there was a quarrel and two boys were on the red motorcycle and he saw third one dragging the injured. Thereafter, all the three escaped on the said motorcycle.

7. PW2 Bhagat Singh called the police, who found the injured to be Kamal (who later on expired). Therefore, it is proved that the person, who came out from a factory at B­39, Ramgarh, Delhi on calling of three persons with a bike (as seen by PW7) was none other than the deceased.

8. As per testimonies of PW23 and PW25, all the accused persons were arrested on 7.6.2013 and they made disclosure about the present offence. Pursuant to his disclosure statement Ex.PW23/L­3, Ankush (A­3) got recovered red colour motorcycle no. DL8SAR­7632 which is of red colour, and its keys.

9. Ankush (A­3) has nowhere explained as to why the aforesaid motorcycle of red colour alongwith its keys, which was borrowed by Amit (A­1) on 29.5.2013, was recovered from his possession on 7.6.2013 vide recovery memo Ex.PW23/M.

10. As per testimonies of PW23 and PW25, all the accused persons pointed out to the spot, where the offence took place.

11. PW23 and PW25 have proved that accused Pankaj (A­2) got recovered the big FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 38 / 53 stone vide seizure memo Ex.PW23/O from the Gali. As per prosecution this stone was hit on the head of the deceased. As per the postmortem report Ex.PW22/A, injury no.1 on the head of the deceased was caused with blunt object.

Three boys and a red motorcycle.

61. Do the aforesaid chain of circumstances fully and completely nail the accused persons and are sufficient to convict these accused persons?

62. Ld. Defence Counsels argue that there is no eye witness in the present case to identify the accused persons as the same offenders, who had committed murder of Kamal. However, Ld. Additional Public Prosecutor argues that aforesaid circumstances are enough to fix the culpability of the accused persons.

63. I have considered the submissions of prosecution and defence and have given serious though to the aforesaid chain of circumstances. There is no explanation from any of the accused as to why they went to the house of PW3 Pradeep, the brother of the deceased, in the night of 29.5.2013 at 10:30 pm and why they were asking for the whereabouts of the deceased. PW3 has testified that these three accused persons had come on a red colour motorcycle. Accused persons had not taken any defence that they owned or were in possession of any motorcycle of red colour. PW­5 and PW­ FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 39 / 53 8 have proved that Amit (A­1) has borrowed the motorcycle No.­ DL8SAR­7632 from them on 29.05.2013 i.e. on the day when they went to house of PW3. Therefore, it is clear that these accused persons came to the house of PW3 on the red colour motorcycle no. DL8SAR­7632, which Amit (A­1) had borrowed from PW5 and PW8. On the inquiry by the accused persons, PW3 Pradeep told them that his brother (i.e. the deceased) was at the factory at Ramgarh. Therefore, it can be concluded that the accused persons, who were asking for whereabouts of deceased at 10:30 pm in night, must have gone to the factory in which deceased was residing. PW7, who is a worker on the first floor of the said factory, noted that three persons with a motorcycle were standing outside the factory and the employer (i.e. the deceased) came out of the factory at about 1:00 am (i.e. about one hour after 12:00 midnight as testified by PW7). It is not the defence of any of the accused persons that they had gone somewhere else after making inquiries from PW3 about the deceased. The natural course of the events is such that it is to be held that it were the accused persons, who went to the factory of the deceased. At about 1:30 am, on 30.5.2013 PW2 Bhagwat Singh saw one red colour motorcycle on which two persons were riding and third person was dragging the deceased. It is to be noted that the motorcycle borrowed by FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 40 / 53 Amit (A­1) on 29.5.2013 is of red colour. The motorcycle seen with the accused persons by PW3 Pradeep Bansal at 10:30 pm on 29.5.2013 is also of red colour. The motorcycle seen by PW2 Bhagwat Singh at 1:30 am on 30.5.2013 is also of red colour. Finally, the red colour motorcycle no. DL8SAR­7632 was recovered from accused Ankush (A­3) by police on 7.6.2013. This is the same motorcycle, which was borrowed by Amit (A­1) from PW5 & PW8.

64. In nutshell, A­1 borrowed a red colour motorcycle no.

DL8SAR­7632 on 29.5.2013. All the three accused persons came to the house of PW3, the brother of deceased, on red motorcycle and made inquiries about the deceased. PW3 told them that his brother was at factory. PW­7 Nagender Rai, a worker on upper floor of factory, also saw three boys with a motorcycle, calling the deceased. PW­2, Bhagwat Singh also saw three boys on red motorcycle who fleeing away on a red motorcycle after beating the deceased. The three persons with a red motorcycle are seen by PW7 and PW2 in quick succession. It were the three accused persons, who had come to inquire from PW3 about the deceased and the deceased was seen being beaten up by three persons on a red motorcycle by PW2 within three hours from the point when the three accused persons met PW3 Pradeep Bansal and made inquiries from him about deceased.

65. This is no coincidence. Rather a complete chain of circumstances, which lead to unmistakable conclusion that it were the three accused persons, who used this motorcycle after borrowing it from PW5 and PW8, to reach the house of PW3, the brother of deceased, and thereafter, to the factory of the deceased. From that place, they had taken the deceased to gali no.8 and had beaten him up and hit him with a stone and then escaped upon the aforesaid motorcycle. Therefore, the aforesaid chain of circumstances unmistakably binds the accused persons with commission of this crime. Now it is to be seen as to whether there can be any other hypothesis possible? The false defence of accused persons in their statements under Section 313 CrPC denying the strong piece of evidence that they had gone to the house of PW3, the brother of deceased, on a red colour motorcycle and had asked for the whereabouts of the deceased and that PW3 had told them that deceased was at the factory, squarely fixes the guilt of the accused persons. At the cost of reiteration, I would say that it must be kept in mind that within three hours from a meeting of accused persons with PW3, three persons with red motorcycle were seen beating the deceased. Therefore, the aforesaid chain of circumstances leads to no other hypothesis except that it were the accused persons, who had committed the offence in FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 42 / 53 question.

Testimony of PW6 ASI Inderjeet.

66. I am taking his testimony at the last becuase Ld. Defence counsels have vehemently assailed the creditability of the witness whereas prosecution has heavily relied upon this witness. It is argued by Ld. Addl. Public Prosecutor that the witness reached the spot immediately after the incident. Ld. Addl. Public Prosecutor submits that PW6 is the chance witness. He alongwith const. Kuldeep had gone to attend the call of DD No. 4­A regarding some quarrel. PW6 has testified that after attending the said call, he alongwith const. Kuldeep were going to the police station via I­Block, Ramgarh Road. When They reached Gali No. 8,, Ramgarh, Bhagwat Singh ( PW2) informed him that three boys have fled on a red motorcycle to the side of main road. He alongwith const. Kuldeep chased the accused persons on scooter on high speed and at one time, scooter came parallel to the motorcycle and he saw three boys riding the motorcycle no. DL8SAR­7632. He testified that on 31.05.2013, he was called by SHO, PS Mahendra Park and had showed on online dossiers of the criminal out of which PW6 identified Amit @ Dabar(A­1) and Pankaj(A­

2). Ld. Public Prosecutor has argued that accused Ankush was identified by PW6 in judicial TIP. Ld. Addl. Public FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 43 / 53 Prosecutor submit that PW6 mentioned the number of the motorcycle in his evidence and he identified the motorcycle in photograph Ex.PW5/1 and Ex.PW5/3 as well as the actual motorcycle Ex. P1.

67. On the other hand, Ld. Defence counsel has strongly assailed the testimony of this witness. It is argued by ld. Defence counsel that DD Entry No. 4­A regarding which PW6 had gone to attend the call of quarrel, has not been proved by the prosecution. Ld. Defence counsel argues that and it is not possible for a scooter to chase the motorcycle. Ld. Defence counsel argues that Bhagwat Singh (PW2) made a call which was recorded in Form No. 1 of Delhi Police Control Room ( Ex.PW20/A) . This shows the time of 2 a.m. i.e. after about 15 minutes from the incident. On receiving of this information, the police station must have sent ASI Inderjeet . This means that PW6 alongwith const.Kuldeep must have reached at the spot after about 20 minutes from the incident. Therefore, this is no chance of PW6 having chased the motorcycle and seen the accused persons.

68. Ld. Defence counsels have further argued that accused Amit @ Dabar (A­1) and accused Pankaj (A­2) were seen by PW6 on online dossier of criminals available on the official website of Delhi police. Regarding third accused i.e. FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 44 / 53 accused Ankush (A­3), his TIP was conducted on 29.06.2013. Ld. Defence counsel argues that accused Ankush was arrested on 07.06.2013 and accused Ankush was before the Ld. Metropolitan Magistrate on 08.06.2013. Therefore, on 07.06.2013 and 08.06.2013, accused persons remained in police custody. TIP of Ankush was moved through SI Rattan Lal on 08.06.2013 . Ld. Defence counsel argues that PW6 is the police officials who was posted in PS Mahendra Park . Therefore, PW6 was very much in contact with SHO in respect of this investigation since 31.05.2013. Therefore, PW6 was had full opportunity to see the accused in police station before conducting Test Identification Parade. Hence, it is argued that TIP of accused Ankush is of no consequences.

69. Ld. Addl. Public Prosecutor argued that PW6 had not reached at the spot on account of information of the present incident. Ld. Addl. Public Prosecutor submits that PW6 alongwith const. Kuldeep had gone to attend a different incident of quarrel regarding which DD No. 4­A was recorded. When they were coming back to police station via I Block, Ramgarh Road, they reached Gali No. 8 , Ramgarh, Bhagwat Singh ( PW2) informed that three boys had fled away on the red motorcycle after quarrelling and beating one boy. Ld. Addl. Public Prosecutor has drawn my attention FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 45 / 53 to the testimony of PW2 that two police officials came on a scooter from Sanjay Enclave to whom he told that said motorcycle fled away towards main road, Jahangirpuri. This police official also went towards the side of police station, Jahangirpuri. Ld. Public Prosecutor submitted that these two officials on scooter are none other than PW6 Inderjeet and const. Sandeep. Testimony of PW6 ASI Inderjeet is natural and Ld. Defence counsel is not correct in arguing that PW­6 has come at the spot after receiving information about the present case. Actually PW­6 was already on duty and had reached the spot after attending a call of another quarrel, information of which was recorded in DD No.­4A. So far as Test Identification Parade is concerned, Ld. Addl. Public Prosecution submits that accused was produced in fully muffled face before Ld. Metropolitan Magistrate. Accused took no objections before Ld. Metropolitan Magistrate that he was shown to witnesses by police.

70. I have considered the rival submission. In cross­ examination, PW6 has clarified that he did not receive any information of this case. This shows that DD No. 4­A is different and has no connection with the present case. I agree with Ld. Defence Counsel that prosecution has not placed on record DD No.4A but due to this negligence of FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 46 / 53 Investigating Officer, it would be unreasonable to disbelieve the testimony of PW6 solely on the ground that he is a police official. Although, PW6 has identified accused Ankush (A­3) in TIP proceedings but he had identified Amit (A­1) and Pankaj (A­2) from the on line dossiers of criminals in police station. This shows his power of observation. Therefore, even if TIP proceedings are discarded on the ground that PW6 was posted in PS Mahendra Park, his identification of the accused persons in the court cannot be doubted because he not only chased the accused persons on motorcycle but also brought his scooter parallel to the said motorcycle and had full opportunity to see the accused persons from a very close distance.

71. Ld. Additional Public Prosecutor has drawn my attention to the cross examination of PW6 in which he denied the suggestion of accused Ankush (A­3) that he saw accused Ankush (A­3) before TIP proceedings in lock up of police station Mahendra Park. PW6 clarified that there was no lock up in police station Mahendra Park and accused persons are lodged in PS Shalimar Bagh. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW25 Inspector Rajender Dubey, who testified that accused Ankush (A­3) was produced in the court in muffled face. Therefore, police took all care to ensure that accused is not seen by any FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 47 / 53 witness before TIP.

72. I am of the opinion that the arresting police officials belong to PS Mahendra Park. PW6, who is also police official, was also posted in PS Mahendra Park. This does create a situation in which PW6 could have got an opportunity to see accused Ankush (A­3), while he was in police custody on 7.6.2013 and 8.6.2013. However, the same does not affect the identification of Ankush (A­3) by PW6 because this witness had seen all the accused persons from close quarters as already held by me. I may mention here that the police officer develops an uncanny sight due to his training and experience to observe and identify the persons and objects. Therefore, I find no ground to disbelieve the testimony of PW6 to the effect that he had seen the accused persons on motorcycle no. DL8SAR­7632, while chasing them on his scooter. Ld. Defence Counsels have strongly assailed the testimony of PW6 in which he stated that number of motorcycle was noted by him while chasing it. I disagree with this submission. The first clue to the offence came from PW6, who told to PW23 SI Hemant about the registration number of this motorcycle. PW23 testified in examination in chief that on 31.5.2013 he tried to trace out motorcycle no. 7632, red stunner as told by ASI Inderjeet. PW23 testified that he got the address of registered owner of FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 48 / 53 the motorcycle and met its registered owner along with his son Sandeep. Sandeep told him that Amit (A­1) had borrowed the said motorcycle from him. In cross examination dated 1.2.2019 by Ld. Defence Counsel for A­3, SI Hemant Kumar (PW23) testified that ASI Inderjeet met him at 5:00/5:30 am at the spot and he recorded his statement on the spot. PW23 further stated that ASI Inderjeet told him the complete number of the motorcycle. Thus, this led the police to PW5 Rambir from where police came to know of involvement of A­1, who had borrowed this motorcycle. Therefore, testimony of PW6 that he had seen the registration number of this motorcycle and had informed about it to PW23 is trustworthy and believable. Thus, it is proved beyond reasonable doubt that PW6 had not only seen the accused persons escaping on the motorcycle immediately after the offence but also he had noted the registration number of the motorcycle. Thus, the aforesaid chain of circumstances, which in itself sufficient to prove the case, has been further strengthened by testimony of PW6. Blood on the stone

73. Ld. Additional Public Prosecutor has drawn my attention to the testimony of PW23 SI Hemant Kumar and PW25 ACP Rajender Dubey, who have testified that at the instance of accused Pankaj (A­2) one concrete block/stone FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 49 / 53 was recovered vide recovery memo Ex.PW23/O. My attention is drawn by Ld. Additional Public Prosecutor to this recovery memo Ex.PW23/O in which it is mentioned that some blood was seen on the stone. This stone was produced in the court and marked as Ex.P2. Ld. Additional Public Prosecutor has drawn my attention to the opinion on the postmortem report Ex.PW22/A in which it is opined that death was due to cranio cerebral damage consequent upon blunt force trauma over head (via injury no.1). Therefore, it is proved that the stone Ex.P2 was used in commission of the offence.

74. Ld. Defence Counsels submit that the stone was recovered after a few days from the incident from open public way visible to the public persons. Moreover, the FSL report was not proved by the prosecution to prove that it was blood of the deceased. Even as per FSL report, it could not be specified as to what was the blood group of the blood found on the stone. On the other hand, Ld. Additional Public Prosecutor argues that the FSL report is admissible per se under Section 293 CrPC, which shows that human blood was found on the stone. Ld. Additional Public Prosecutor argues that the FSL report was filed along with the supplementary charge sheet and copies of the same were supplied to the accused persons. Therefore, it cannot be said that accused FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 50 / 53 persons were not aware of the FSL report.

75. I have considered the submissions. The prosecution had supplied the copies of the FSL report filed along with the supplementary charge sheet in the court of Ld. ACMM, North vide order sheet dated 8.1.2014. Therefore, this FSL report is admissible per se under Section 293 CrPC. Ld. Additional Public Prosecutor had moved an application on 22.8.2019 under Section 311 CrPC praying that concerned senior scientific officer be summoned. However, this application was moved at the stage when final arguments had already been concluded and this judgement was almost ready. Therefore, I had dismissed the said application because otherwise this old case would have returned to the stage of prosecution evidence causing further delay in disposal of this old case.

Was death of deceased due to medical negligence?

76. It is argued by Ld. Defence Counsels that no subsequent opinion was taken as to whether the head injury in question could be caused by concrete stone or not. Ld. Defence Counsels submit that this stone could not have caused such a serious injury like injury no.1 as shown in postmortem report, which could have caused death of the deceased. Therefore, it is argued that death was caused due to medical negligence and not due to impact of the stone.

77. Ld. Additional Public Prosecutor admits that the subsequent opinion was not taken but he points out that this stone Ex.P2 was produced in the court and it was a heavy stone. Ld. Additional Public Prosecutor has drawn my attention to the postmortem report Ex.PW22/A, in which it is opined that injury no.1 was caused by a blunt force trauma. Therefore, it is submitted that court can notice that such an injury can be caused with a heavy stone like Ex.P2.

78. I agree with Ld. Additional Public Prosecutor on this point. The injury no.1 on external examination was found to be 4 cm x 0.1 cm x 1 cm on the right occipetal region. On internal examination, the injury has been described in the postmortem report as under :

"A) Head Scalp: On reflection effusion of blood was present in the frontal and occipital region.

Skull: Craniotomy wound 5 cm x 5 cm was present on right frontoparietal region. Bone piece was present in situ with cranial defect of 6 cm x 5 cm. There was a surgical mesh, which was stitched with the Dura mater. Brain matter was bulging from the defect created by craniotomy wound.

Linear fracture was present of the right superior orbital wall and in posterior cranial fossa. Effusion of blood was present in situ.

Brain: Extradural dural hemorrhage 2 cm x 1 cm was present on the right frontal region. Hemorrhage contusion was present in the right basitemporal region.

Subarachnoid haemorrhage was present FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 52 / 53 over bilaterial crebral hemisphere. Gyri were flattened and sulci were obliterated. Brain weight was 1336 gm, brain was edematous."

79. This shows that the injury no.1 was caused with heavy object, which could be the stone Ex.P2.

80. Ld. Defence Counsels have brought the angle of medical negligence probably with a view to dilute the offence from Section 302 IPC to Section 304 IPC. However, no medical negligence is proved. As per postmortem report Ex.PW22/A, the injury no.1 is sufficient to cause death in ordinary course of nature. Therefore, the act of accused persons is covered under Section 300 (thirdly) of IPC punishable under Section 302 IPC.

Conclusion

81. In view of the chain of circumstances as enumerated above, I am left in no doubt that it were the accused persons, who acting in furtherance of common intention, had committed murder of Kamal Kumar Bansal. I therefore, convict accused Pankaj (A­2) and Ankush (A­3) under Section 302/34 IPC. Digitally signed by VINOD KUMAR VINOD KUMAR Date: 2019.08.28 16:15:04 +0530 Announced in the open court ( Vinod Kumar) on 28th of August 2019. Additional Sessions Judge­05 North District, Rohini Courts, Delhi FIR No. 145/2013 PS Mahendra Park State Vs Amit @ Dabar etc. Page 53 / 53