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Delhi District Court

State vs Mudit Sharma on 26 November, 2024

            IN THE COURT OF MS. GEETANJALI
     ADDITIONAL SESSIONS JUDGE (FTC)- 03; SOUTH EAST
             DISTRICT SAKET COURTS: DELHI

S.C. NO. 90/2019
FIR NO. 397/2018
PS JAITPUR
U/S. 307// IPC
CNR : DLSE01-001379-2019

THE STATE

                                VERSUS

1. MUDIT SHARMA
   S/O LATE DR. RAGHUVANSH KUMAR SHARMA
   R/O H. NO. 589, GALI NO. 38/D,
   MOLARBAND EXTENSION, BADARPUR,
   NEW DELHI.

2. SUMIT YADAV @ MONU
   S/O SH. SACHINANDH DAS
   R/O H. NO. 52, GALI NO. 26,
   MOLARBAND EXTENSION, BADARPUR,
   NEW DELHI.

                 Date of Institution               :        22.02.2019
                 Order reserved on                 :        25.11.2024
                 Order delivered on                :        26.11.2024

                                      JUDGMENT

1. The accused Mudit Sharma and Sumit Yadav are facing SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 1 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

trial for the offence U/s.307/452/34 of the Indian Penal Code, 1860 (in short 'IPC').

BRIEF FACTS

2. The case of prosecution is that on 09.07.2018 upon receipt of DD no. 50-A regarding stabbing with knife, ASI Ram Kishore along with Ct. Anil reached at the spot i.e. C-75/5, Om Nagar, Meethapur, Jaitpur, New Delhi where they came to know that injured Kripal Singh was beaten by two persons with ustara and danda and injured was sent to Apollo hospital, Sarita Vihar through PCR van. Thereafter ASI Ramkishore along with Ct. Anil reached at Emergency ward, Apollo hospital, collected the MLC of injured Kripal Singh and recorded his statement. He stated that accused Mudit Sharma along with co-accused Sumit Yadav came to his house and hit him with danda 2-3 times on his head and also stabbed him with ustara like knife on his neck upon which he raised hue and cry upon which they both fled away from the spot. On the basis of statement of complainant, present FIR was registered. After completing other necessary formalities charge-sheet was filed against the accused persons.

3. On the basis of charge-sheet so submitted before Ld. Metropolitan Magistrate, cognizance of offence was taken by the Ld. Metropolitan Magistrate and after compliance with the provisions of Section 207 Cr.PC, the case was committed to the Court of Sessions and assigned to this Court.

CHARGE

4. After hearing arguments on point of charge and finding a prima facie case against accused persons Mudit Sharma and Sumit Yadav, SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 2 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:00:55 +0530 requisite charges U/s. 307/452/34 IPC was framed against them to which they pleaded not guilty and claimed trial.

PROSECUTION EVIDENCE

5. In support of its case, the prosecution has examined as many as twenty witnesses.

5.1 PW-1 HC Gopal Singh is the police witness and he has deposed that "on 09.07.2018 he was on picket duty at Mithapur Chowk and while he was standing on the road outside the picket, one boy came on the motorcycle who told him that he was chasing one person who had caused injury to someone; that he accompanied him on his motorcycle and started chasing the said person and when they reached near Shamsan Ghat, Molarband, one person was identified by the said person and he apprehended him and brought to PS and handed over to concerned IO". He was cross examined by Ld. Defence Counsel for accused persons.

5.2 PW-2 Shri Abhishek Rajput is the son of the injured and his testimony in detail shall be discussed in the later part of judgment. 5.3 PW-3 Shri Jitender Singh is the public witness and his testimony in detail shall be discussed in the later part of judgment. 5.4 PW-4 Shri Kapil Sharma is the public witness and his testimony in detail shall be discussed in the later part of judgment. 5.5 PW-5 Shri Jagdish is the public witness and his testimony in detail shall be discussed in the later part of judgment. 5.6 PW-6 Ms. Sushma Rajput is the wife of the injured and her testimony in detail shall be discussed in the later part of judgment.

SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 3 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:01:03 +0530 5.7 PW-7 Ajay Kumar was the Nodal Officer, Bharti Airtel Ltd. and he has deposed that "he brought the CDR of mobile number 9871723949 from the period 1st July 2018 to 8th August 2018 running into 8 pages registered in the name of Kripal Singh which is Ex.

PW7/B colly and copy of EKYC of subscriber is Ex PW7/A; that he also brought the CDR of mobile number 9266380497 of accused Mudit Sharma for the period 1st July 2018 to 8th August 2018 running into 5 pages back to back which is Ex. PW7/D and EKYC form is Ex PW7/C; that he also proved the certificate u/s 65 B Ex PW7/E qua the genuineness of the same and Delhi- NCR cell ID chart of the above- said mobile phones is Ex PW7/F colly running into 4 pages". 5.8 PW-8 SI Kishan Chand is the police witness and he has deposed that "on 09.07.2018 at about 06:05 p.m., Ct. Anil produced rukka for registration of FIR which was sent by ASI Ram Kishor and on the basis of same, the computerized FIR No. 397/2018 u/s 307/452/34 IPC Ex.PW-8/A(OSR computerized copy) was got registered through CCTNS Operator; that he made endorsement on the rukka which is Ex.PW-8/B and he also prepared certificate under Section 65B Indian Evidence Act which is Ex.PW-8/C qua genuineness of the same; that after registration of FIR he handed over the computerized copy of FIR, original rukka and certificate u/s 65B of Indian Evidence Act to SI Gaurav Dalal for further investigation ". He was cross examined by Ld. Defence Counsel.

5.9 PW-9 HC Anil is the police witness and he has deposed that "on 09.07.2018 he was on emergency duty alongwith ASI Ram Kishore and an information was received through PCR call vide DD SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 4 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:01:18 +0530 No. 50A upon which they reached at house no. C-75/5, Om Nagar, Meethapur, Jaitpur where they came to know that two persons had beaten Kirpal Singh with danda and ustara after entering in to his house; that PCR van came at the spot and took the injured Kirpal Singh to Apollo Hospital and in the meanwhile, Ct. Budhi Prakash and Crime Team reached at the spot; that Ct. Budhi Prakash was left at the spot to look after the scene of crime and he alongwith ASI Ram Kishore reached at Apollo hospital where ASI Ram Kishore recorded the statement of injured Kirpal Singh on the basis of which he prepared rukka and sent him to PS for registration of FIR; that thereafter he reached at PS and handed over the rukka to duty officer for registration of FIR". He was cross examined by ld. defence counsel.

5.10 PW-10 ASI Ravi Kumar is the in-charge of Crime Team, South East District and he has deposed that "on 09.07.2018 he received an information from control room regarding stabbing incident vide DD no. 50-A PS Jaitpur upon which he along with photographer HC Mahesh reached at C-75/5, Om Nagar, Mithapur, New Delhi where he met SI Gaurav Dalal of PS Jaitpur; that he inspected the scene of crime and blood was found on the floor and grip (handle) of ustara; that HC Mahesh took the photographs of the scene of crime from different angles; that no chance print was found upon the grip (handle) of ustara; that he prepared scene of crime report which is Ex.PW 10/A". He was cross examined by Ld. Defence Counsel for both the accused persons.

5.11 PW-11 HC Mahesh was the photographer, Crime team SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 5 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

and he has deposed that on "09.07.2018 upon receipt of information vide No. 50A, he alongwith ASI Ravi Kumar (I/C Crime Team) reached at house no. C-75/5, Om Nagar, Meethapur, New Delhi where they met police officials of PS Jaitpur; that one ustara mooth (ustara ka mooth) and blood was lying on the floor at the spot and he took the photographs of the spot from different angles as per direction of IO and In-charge, Crime team; that he handed over the negatives of the photographs to the IO which are Ex.PW11/B and five photographs were developed which are Ex.PW11/A (colly); that after developing the photographs, the negatives were handed over to them; that he correctly identified the grip (handle) of ustara as Ex.P1". He was cross examined by Ld. Defence counsel for both the accused persons.

5.12. PW-12 HC Buddi Prakash is the police witness and he has deposed that "on 09.07.2018 when he was on patrolling, he reached at house no. C-75/5, Om Nagar, Meethapur, Jaitpur where he met ASI Ram Kishore and Ct. Anil; that there he came to know that one person namely Kripal Singh had been beaten by two sons with danda and ustara; that there they came to know that injured persons was taken to Apollo hospital, Sarita Vihar by PCR; that he was left by ASI Ram Kishore at the spot to look after the scene of crime; that ASI Ram Kishore and Ct. Anil left for Apollo hospital; that ASI Ram Kishore told him that he had informed Crime Team; that SI Gaurav Dalal reached at the spot and Crime team officials also reached at the spot; that the Crime team officials inspected the scene of crime and photographer had taken the photographs; that at the spot, earth control and blood stain earth control were lifted and same were kept in a SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 6 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:01:34 +0530 plastic dibbi and taped with doctor tape and sealed with seal of 'GD' which were taken into possession vide seizure memo Ex.PW12/A; that cloth having blood stain upon it was kept in a transparent plastic jar and taped with doctor tape and sealed with seal of 'GD' which was seized vide seizure memo Ex.PW12/B; that the Crime team lifted the blood samples on cotton buds in a vial and same were kept in a transparent plastic jar and duly taped with doctor tape and sealed with seal of 'GD' and the same were taken into possession vide seizure memo Ex.PW12/C; that a piece of paper having blood stains upon it was kept in a transparent plastic jar and duly taped with doctor tape and sealed with seal of 'GD' and the same was taken into possession vide seizure memo Ex.PW12/D; that handle of ustara (ustara ka hatha) having blood stains upon it was kept in a plastic jar and taped with doctor tape and sealed with seal of GD and same was taken into possession vide seizure memo Ex.PW12/E; that the site plan of spot of incident is Ex.PW12/F; that accused Mudit Sharma was interrogated and arrested vide arrest memo Ex.PW12/G and personally searched vide memo Ex.PW12/H; that the disclosure statement of accused Mudit Sharma is Ex.PW12/I; that accused Sumit Yadav was interrogated and arrested vide arrest memo Ex.PW12/J and personally searched vide memo Ex.PW12/K; that the disclosure statement of accused Sumit Yadav is Ex.PW12/L; that the pointing out memo of the spot of incident were prepared by the IO at the instance of accused persons which is Ex.PW12/M; that at the instance of accused Sumit Yadav, two pieces of danda were recovered near the spot of incident from a naali; that the pieces of danda were dried and measured and SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 7 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:01:42 +0530 kept in a cloth pullanda and sealed with seal of GD and taken into possession vide seizure memo Ex.PW12/N; that his statement was recorded by the IO". He was cross-examined by Ld. Defence Counsel. 5.13. PW-13 Ajit Singh is Alternate Nodal Officer, VODAFONE IDEA Ltd. and he has deposed that "he brought the details of mobile number of you accused Sumit Yadav 7834920043 for the period 01.07.2018 to 24.08.2018 as Ex.PW13/B (running into 3 pages) and E- KYC of same is Ex.PW13/A; that he also brought the Cell ID Chart of the said mobile number which is Ex.PW13/C and certificate u/s 65 of Indian Evidence Act Ex.PW13/D qua genuineness of the same".

5.14. PW-14 ASI Surjit is police witness and he has deposed that "on 09.07.2018, SI Gaurav Dalal had deposited the exhibits duly sealed with seal of GD in the malkhana alongwith belongings of personal search memo of accused persons; that he deposited the same in the malkhana and made entry in register no. 19 vide serial no. 2791; that on 11.07.2018, SI Gaurav Dalal deposited the pullanda duly sealed with seal of GD in the malkhana; that he deposited the same in the malkhana and made entry in register no. 19 vide serial no. 2808; that on 16.08.2018, he handed over eight sealed pullandas alongwith two sample seals to Ct. Muni Raj to deposit at FSL, Rohini vide RC No. 158/21/18 and deposited the same in FSL, Rohini against the said RC and handed over the copy of RC and acknowledgment of FSL to him; that he made endorsement in Register No. 19 against serial No. 2791 in this regard; that on 04.01.2019, HC Manoj had collected the eight sealed parcels alongwith result FSL from Rohini and handed over the SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 8 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:01:50 +0530 same to him; that the said exhibits were deposited in the malkhana and result FSL was handed over to concerned IO; that he brought the register No. 19, copies of entries of serial No. 2791 and 2808 are taken on record and the same are exhibited as Ex.PW14/A(OSR) and Ex.PW14/B (OSR); that the copy of RC on the file is Ex.PW14/C (OSR)".

5.15. PW-15 Dr. Huzaifa is Sr. Resident, Department of Surgery, AIIMS and he has deposed that " he have been deputed by Dr. Sunil Chumber, HOD, Department of Surgery to appear on behalf of Dr. Vibhor Shukla; that the Authority letter is Ex.PW15/A; that on 05.08.2018, Kripal Singh was brought in their hospital by the police officials of PS Jaitpur who was examined Dr. Vibhor Shukla vide MLC No. 7735/2018 and UHID No. 103915716; that the MLC is Ex.PW15/B; that Dr. Vibhor Shukla had left our hospital and he can identify signature of Dr. Vibhor Shukla as per record". He was cross- examined by Ld. Defence Counsel.

5.16. PW-16 Sh. Ms. Anju Dixit is the Medical record clerk and she has deposed that "he was deputed by Medical Record Officer to identify the signature of Dr. Vibhore Shukla who has now left the services of the AIIMS on the MLC Ex. PW15/B since he saw him signing in the official course of duty". He was cross-examined by Ld. Defence Counsel.

5.17. PW-17 Ct. Vijay Yadav is the police witness and he has deposed that "on 05.08.2018, IO of the case had sent him to hospital for the medical examination and for blood samples of the victim Kripal Singh; that he took him at emergency of AIIMS and he was examined SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 9 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:01:57 +0530 by the doctor and after examination, concerned doctor handed over the sealed blood exhibit duly sealed with seal of hospital alongwith its sample seal; that thereafter they returned to PS and handed over the sealed blood sample exhibit duly sealed with hospital seal alongwith its sample seal to the IO which was seized vide seizure memo Ex.PW17/A".

5.18. PW-18 HC Karamveer is the police witness and he has deposed that "on 10.07.2018, he has joined the investigation in the present FIR with SI Gaurav Dalal and on that day, both the accused persons namely Mudit Sharma and Sumit Yadav were presented before the concerned Illaka Magistrate and the accused persons Sumit Yadav was remanded to JC vide application which is Mark X; that while accused Mudit Sharma was taken to two days PC remand by the IO vide Order dated Mark Y; that the accused Mudit Sharma was got medical examined at AIIMS Hospital and the accused Mudit Sharma was questioned about the Ustara (razor) used in the incident and he made us roam around the Agra Canal, Jaitpur and the drain (nala) situated near the said canal but he kept on making different excuses nothing was told by him as qua that ustara (razor) and he was brought to PS where he was lodged in lockup; that on 11.07.2018, he again joined the investigation of this case by SI Gaurav Dalal and the accused Mudit Sharma was taken out from the lockup and he was again questioned about the ustara (rajor) and the accused again took us to the nala (drain) by the side of Agra Canal, Jaitpur and disclosed that the ustara (rajor) used in the incident was thrown by him in a hurry by the area around the said drain; that on search the said ustara (rajor) was SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 10 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

recovered from a heap of debris (kuda kachra) near the said drain but he cannot tell as to what sort of ustara (rajor) it was; that the said ustara (rajor) was kept in a transparent jar and the same was sealed with the seal of 'GD'; that the IO prepared the seizure memo of the said ustara (rajor) vide memo Ex. PW18/A; that the accused was thereafter brought to PS after getting him medical examined at AIIMS and was lodged in lockup". He was cross-examined by Ld. Defence Counsel. 5.19. PW-19 SI Ram Kishore is the first Investigation officer and he has deposed that "on 09.07.2018 on receiving a PCR call vide DD No. 50A regarding stabbing to one person at Om Nagar; that he alongwith Ct. Anil went to the spot i.e. C-75/5, Om Nagar where they came to know that one person was injured due to affect by knife and victim was shifted to hospital by PCR Van; that thereafter he visited inside the house and found blood stained inside and outside of the house; that he also found one hatha of ustara of black colour; that thereafter Ct. Buddi Prakash also reached at the spot; that he again got information from PS that victim was shifted to Apollo Hospital; that thereafter he called Crime team at the spot; that after that he left the Ct.

Buddi Prakash at the spot and he alongwith Ct. Anil went to the Apollo Hospital; that thereafter he met with doctor and collected MLC no. 594/2018 of the injured namely Kripal Singh and opined that victim was fit for statement; that thereafter with permission of the concerned doctor, he recorded the statement of the victim Kripal Singh which is already Ex. PW2/A; that thereafter he made endorsement on the basis of said complaint and same is now Ex. PW19/A and handed over the same to the Ct. Anil; that thereafter Ct. Anil went to the PS SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 11 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

for registration of FIR and he went to the spot; that after the registration of FIR, Ct. Anil alongwith SI Gaurav Dalal came at the spot and further investigation was got conducted by him ". He was cross-examined by Ld. Defence Counsel.

5.20. PW-20 SI Gaurav Dalal is the second Investigation officer and he has deposed that "on 09.07.2018, he was present in the PS and after the registration of the FIR, the investigation of the present case was assigned to him; that thereafter he alongwith concerned beat officials went to the spot i.e. house no. C-75/5, Om Nagar, Meethapur, New Delhi; that he went to the scene of crime; that he came to know that injured Kripal was already taken to the Indraprastha Apollo hospital, Sarita Vihar, New Delhi; that thereafter he called the Crime team from the spot; that thereafter Crime team arrived at the spot; that crime team had inspected the scene of crime; that he lifted wooden sticks broken into the two piece from the drainage which is situated at the right side of the aforesaid house; that he measured the aforesaid sticks and thereafter prepared the pulanda of the same and sealed the pulanda with the seal of 'GD; that he prepared the seizure memo of the aforesaid pulanda of the stick by way of seizure memo already Ex.

PW12/N; that he also taken the earth control and blood stained from the spot by keeping the same in a transparent plastic box and prepared the pulanda of the same and sealed the said puland with the seal of 'GD' and prepared the seizure memo of the same by way of seizure memo already Ex. PW12/A; that he had also taken two blood stained clothes from the floor of the aforesaid house and thereafter he had kept the same in the transparent plastic box and prepared the pulanda of the SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 12 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:02:34 +0530 same and sealed the said pulanda with the seal of 'GD'; that he prepared the seizure memo of the aforesaid pulanda of the stick by way of seizure memo already Ex. PW12/B; that he also prepared the seizure memo of the blood samples which was lifted by the Crime team and handed over to him in two vials in a transparent plastic by the ASI Ravi Kumar, Incharge of the Crime team vide seizure memo already Ex. PW12/C; that he also taken the blood stained piece of paper which was lying on the floor of the baranda and thereafter he had kept the same in the transparent plastic jar and prepared the pulanda of the same; that he sealed the said pulanda with the seal of 'GD'; that thereafter he prepared the seizure memo of the aforesaid pulanda by way of seizure memo already Ex. PW12/D; that he also taken one broken handle of ustara which was also lying in the baranda of the aforesaid house upon which one white colour sticker was annexed and some blood stained marks were also found; that he prepared the pulanda of the same by keeping the same in plastic transparent jar and sealed the pulanda with the seal of 'GD' and prepared the seizure memo of the aforesaid pulanda by way of seizure memo already Ex. PW12/E; that thereafter both the accused persons namely Mudit Sharma and Sumit Yadav were produced before him by the concerned beat officials as they were already apprehended by the beat officials after the commission of offence in the present case; that he had interrogated them at the spot and thereafter he had arrested them and conducted their personal search by way of memos already Ex. PW12/G and Ex. PW12/J, Ex. PW12/K and Ex. PW12/H respectively; that he also recorded their disclosure statements in the SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 13 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

present case by way of statements Ex. PW12/I and Ex. PW12/L; that he prepared the pointing out memo of the spot at the instance of both the accused persons which is already Ex. PW12/M; that thereafter they returned to the PS; that he deposited the case property in the malkhana of PS Jaitpur; that he recorded the statement who had witnessed the aforesaid proceedings in present case; that on the next day, he produced both the accused persons before the concerned Court that accused Sumit was sent in JC by the order of respective Court; that he took the custody of the accused Mudia Sharma for PC remand for two days and during the course of PC remand, accused Mudit Sharma already disclosed that he had thrown the sharp portion of the ustara towards the side of nala, near Jaitpur Nehar, Kabristan Road, Molar Band, Badarpur, New Delhi; that thereafter he alongwith accused Mudit and some police staff went to the aforesaid spot and at the instance of the accused Mudit Sharma, one sharp portion of the razor was recovered from the side of nala; that he prepared the pulanda of the same by keeping the said sharp portion of the weapon in the transparent plastic box and sealed the said pulanda with the seal of 'GD'; that he prepared the seizure memo of the said pulanda by way of the seizure memo already Ex. PW18/A; that he prepared the pointing out memo of the aforesaid place of recovery alongwith the site plan of place of recovery in presence of Ct. Karamvir which are now Ex. PW20/A and Ex. PW20/B respectively; that they returned the PS after depositing the case property in the Malkhana of PS Jaitpur; that he recorded the statement of witnesses who had witnessed of the aforesaid proceedings on that very day; that after completion of SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 14 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:02:49 +0530 medical examination of the accused Mudit Sharma, he was produced before the concerned Court and from where he was sent to JC; that during the course of investigation on 05.08.2018, he got conducted medical examination of the injured Kripal at AIIMS hospital for obtaining his blood sample for the purpose of DNA profiling in the present case through Ct. Vijay; that after his medical examination, Ct. Vijay went to the police station along with injured and handed over the seal exhibits of blood sample of the injured along with sample seal of the AIIMS hospital, New Delhi to him; that he prepared the seizure memo of the same which is already exhibited as Ex.PW-17/A; that he recorded the statement of the Ct. Vijay to said effect; that on 16.08.2018, he got sent the exhibits of present case to FSL, Rohini through Ct.Muniraj vide RC already exhibits Ex.PW-4/C and after depositing the same, Ct. Muniraj returned to PS and handed over the copy of acknowledgment of case acceptance along with copy of Road Certificate to him; that copy of acknowledgment of case acceptance is now marked as Mark- PW-20/A; that he recorded statement of Ct.

Muniraj to the said effect; that during investigation, he obtained the certified copy of CDR, CAF and location chart of Mobile phone of injured as well as both the accused persons by way of Notice u/s 91 Cr.P.C vide Ex.PW-20/C and Ex.PW-20/D; that he analysed the CDR and location of the mobile phone of both the accused persons and on the same location of the mobile phone of both the accused persons were found near the scene of crime; that the location of mobile phone of the complainant was also found at the scene of crime; that thereafter he prepared the chargesheet and submitted before the court". He was SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 15 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:02:57 +0530 extensively cross-examined by Ld. Defence Counsels."

Statement u/s. 313 Cr.P.C.

6. After completion of prosecution evidence, all the incriminating material was put to the accused persons under Section 313 Cr.PC. Accused Mudit Sharma pleaded innocence and stated that he is innocent and has been falsely implicated in the present case by the complainant and his wife in connivance with each other to evade their liability to pay his due amount of Rs. 87,000/-. 6.1. Accused Sumit Yadav pleaded innocence and stated that he is innocent and has been falsely implicated in the present case by the complainant; that on the day of incident, he was present at his house with his family members; that in the evening time at about 04:00 PM, two police officials came to his house and took him to the PS Jaitpur regarding some inquiry and later on he was booked in the present case being the friend of accused Mudit Sharma; that he never visited the house of the complainant at any point of time with co- accused Mudit Sharma. Though, the accused persons took the plea of being innocent in his statement u/sec. 313 Cr.P.C. but they prefer not to lead defence evidence and matter was fixed for final arguments.

ARGUMENTS

7. I have heard the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons and perused the record. 7.1 Ld. Addl.P.P. has argued that PW-2 Sh. Abhishek Rajput has supported the case of prosecution and deposed that his father Kripal Singh (now deceased) had informed him in the hospital that SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 16 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

accused Mudit Sharma and one another boy namely accused Sumit Yadav had caused injuries to him with ustara and danda; that PW-3 PW-3 Sh. Jitender Singh has also corroborated the incident in question and deposed that he heard noise of quarrels from the house in front of his house and when he came out in the gali he saw that Kripal Singh (now deceased) in injured condition and he came to know that someone has beaten him; that PW-4 Sh. Kapil Sharma has deposed that on 09.07.2018, he heard some noise from inside house no. C-75, Gali No. 5, Om Nagar, Meethapur, Jaitpur and he came to know from the person present over there that someone has fled away after injuring someone in the said house; that PW-4 chased accused Mudit Sharma and with the help of Ct. Gopal apprehended accused Mudit Sharma near Shamshan Ghat, nearby the residence of accused in Gali No. 38, Molarband, Extension-I, New Delhi; that PW-5 Sh. Jagdish has deposed that on 09.07.2018, at about 03:00 PM, he heard some noise in the gali which was coming from the house of Kripal Singh (now deceased); that PW-5 saw two persons came out from the house of Kripal Singh and started running towards different side from the gali; that the persons aged about 30 years ran towards left side of gali who was having danda in his hand and another person aged about 50 years having ustara in his hand ran towards right side of gali; that PW-5 returned to the house of Kripal Singh where he saw that Kripal Singh was having injuries on his head and neck and blood was oozing from it; that PW-5 also correctly identified accused Mudit Sharma who was having ustara in his hand before the Court; that PW-6 Ms. Sushma Rajput (wife of deceased Kripal Singh) has also supported the case of SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 17 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:03:11 +0530 prosecution and deposed that Kripal Singh (now deceased) told her that accused persons namely Mudit Sharma and Sumit Yadav had caused injuries to him; that PW-6 also deposed that prior to one month of incident, accused persons Mudit Sharma and Sumit Yadav had come at the house of PW-6 and due to that reason, PW-6 had identified both the accused persons; that rest of the witnesses have also corroborated the case of prosecution; the case of prosecution has been well established and hence accused persons should be convicted of the offence charged against them.

7.2. Per contra, it was argued by the Ld. Counsel for the accused Mudit Sharma that there is no eye witness in the present; that There is no scientific evidence which can connect the accused with the weapon of offence; that all the witnesses are interested witnesses as most of them are the family members of the complainant; that complete chain of circumstances has not been established. Therefore it is prayed to this Hon'ble Court that accused Mudit Sharma be convicted for the offence punishable u/s 307/452/34 IPC. 7.3. Ld. Counsel for accused Sumit Yadav has been argued that injured Kripal Singh was the only eye witness who expired before his evidence; that PW-5 did not see accused Sumit Yadav fleeing from the spot and not even named him in his deposition; that PW-5 only see accused Mudit Sharma in the house of complainant; that PW Sushma and PW Abhishek Rajpoot are not reliable witness; that accused Sumit was lifted from his house and falsely implicated in the presen case since he was the friend of accused Mudit Sharma. Therefore it is prayed to the Hon'ble Court that he may be acquitted for the alleged SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 18 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:03:17 +0530 offence u/s 307/452/34 IPC.

ANALYSIS OF EVIDENCE AND FINDINGS

8. I have heard the Ld. Addl. PP for the State as well as Ld. Counsels for accused persons and perused the record.

9. The charge u/s. 307/452/34 IPC has been framed in the present case on the basis of the complaint made by Sh. Kripal Singh. For the purpose of convenience the relevant sections are reproduced below:

9.1. Section 307 IPC deals with attempt to murder. The essential ingredients required to be proved in the case of an offence u/s. 307 IPC are:-

(i) that the death of a human being was attempted;

(ii) that such death was attempted to be caused by or in consequence of the act of the accused;

(iii) that such act was done with the intention of causing death or that it was done with the intention of causing such bodily injury as (a) the accused knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death or that the accused attempted to cause death by doing an act known to him to be so imminently dangerous that it must in all probability cause (a) death or (b) such bodily injury as is likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury.

9.2. Section 452 IPC deals with 'House-trespass after preparation for hurt, assault or wrongful restraint:- Whoever commits house-trespass having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person or for SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 19 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:03:25 +0530 putting any person in fear of hurt, or assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine. The points requiring proof are:

(1) That the accused committed house-trespass; (2) That it was committed after making preparation for-

(a) causing hurt,

(b) assaulting or

(c) wrongfully restraining any person; or (3) That it was committed for putting any person in fear of -

(a) hurt,

(b) assault or

(c) wrongful restraint.

10. The case of the prosecution is that both the accused in furtherance of their common intention entered the house of the complainant with preparation and intention of quarrel and caused injuries on his head with the danda and a knife with such intention or knowledge and under such circumstances that if by said act, they have caused death of injured/complainant, they would have been guilty of culpable homicide not amounting to murder. Unfortunately, complainant left this world before narrating his ordeal to the Court. In order to prove the case, the Prosecution examined public witnesses namely Sh. Abhishek Rajput, Sh. Jitender Singh, Sh. Kapil Sharma, Sh. Jagdish and Ms. Sushma in the present case.

10.1. It is well settled law that while appreciating the evidence of witness, the approach must be whether the evidence of a witness read SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 20 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:03:32 +0530 as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, draw backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter should not ordinarily permit rejection of the evidence as a whole (Reliance placed on the judgment of Hon'ble Supreme Court of India in State of UP vs Krishna Master & Ors, decided on 03/08/2010 in Crl. Appeal No. 1180/2004).

OCULAR EVIDENCE

11. I now proceed to analyse the testimony of public witnesses in the present case. Sh. Abhishek Rajpoot was examined as PW-2 and he has deposed that "in year 2018, he was residing at house no. C-75/5, Om Nagar, Meethapur, Badarpur, New Delhi-110044; that in the month of June 2018, he had joined a company at Connaught Place; that he do not remember the exact date, month of August year 2018, he was present in his office at Connaught Place and his mother was at her school; that his father was present alone at the house; that he received a call from his cousin Mohit Rajput, who informed him that someone had stabbed his father and asked him to reach Apollo hospital on which he reached at Apollo hospital where he met his mother; that he went inside the Emergency of the hospital where his father was SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 21 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:03:38 +0530 admitted; that there was a bandage on the injuries of his father on head and neck; that when he asked from his father as to who has caused injury on which his father told that Mudit Sharma and one another boy had caused injuries with ustara and danda; that his father further told that he somehow managed to escape otherwise they would have killed him; that police officials had come in hospital and statement of his father was recorded in his presence; that thereafter he alongwith his father returned to their house after discharge from hospital; that on next day, he alongwith his father had gone to police station Jaitpur where they met police officials; that his father identified Mudit Sharma and another boy who was with Mudit Sharma at the time of incident in the lockup of police station; that the name of other accused was Sumit Yadav." He was extensively cross-examined by Ld. Defence Counsels. 11.1. Sh. Jitender Singh was examined as PW-3 and he has deposed that "on 09.07.2018, he was present at his home; at about 02:45 PM, he heard noise of quarrel from the house in front of his house on which he came out from his house in the gali and saw gathering of public persons near house no. C-75/5, he saw Kripal Singh in injured condition and he came to know that someone has beaten him; that he had made 100 number call from his mobile number 9911998569; that after sometime, PCR came and took Kripal Singh to hospital; that his statement was recorded by police ". He was cross- examined by Ld. Defence Counsels.

11.2. PW-4 Sh. Kapil Sharma has deposed that "on 09.07.2018, he was going to meet his friend in the area of D block gali no.1 on foot and when he reached in front of house no. C-75, gali no.5 Om Nagar, SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 22 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

Meethapur, Jaitpur where he heard some noise from inside the said house; that he came to know from the persons present over there that someone had fled away after injuring someone in the said house; that meanwhile one known person found coming on a bike in the same gali and he asked him for his motorcycle; that he gave his motorcycle and he chased the said boy on the same; that after chasing some distance when he reached at a police naka, Meethapur where he found one Constable to whom he informed about the said fact; that the name of Constable came to be known as Gopal to whom he informed about the person to whom he was chasing; that he alongwith Ct. Gopal chased him and apprehended him near the shamshan ghat nearby the residence of accused in gali no. 38, Molarband Extn; that he and Ct. Gopal had accompanied the accused on the said motorcycle to the PS; that thereafter he returned to the spot where he met police official who had recorded his statement". He was extensively cross-examined by Ld. Defence Counsels.

11.3. PW-5 Sh. Jagdish has deposed that "he was residing at the above said address with his family since 1987; that he was doing private job; that Kripal Singh also resides in the same gali at a distance of 60-70 steps from his house who resides alongwith his wife and son;

that he know Kripal Singh being neighbourer for last 20-22 years; that on 09.07.2018 at about 3 p.m., he heard some noise in the gali on which he came outside from his house and he saw that some noise was coming from the house of Kripal Singh; that he saw two persons coming out from the house of Kripal Singh and started running towards different sides in the gali; that the person aged about 30 years SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 23 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

ran towards left side of the gali who was having danda in his hand and another person aged about 50 years who was having ustara in his hand ran towards right side of gali; that he chased aged person of 50 years and when he was near to him, he turned back and shown ustara to him; that he sat in an auto and fled away from the spot; that thereafter he returned to the house Kripal Singh where he saw that Kripal Singh was having injury on his head and neck and blood was oozing from it; that meanwhile, police vehicle came and took him to Apollo hospital; that at the time of incident wife of Kripal Singh was in the school and son was on duty and not present at the house when he reached the house of Kripal Singh; that as he have seen both the accused persons coming out from the house of Kripal Singh having ustara and danda he was sure that they had caused injuries to Kripal Singh ". He was extensively cross-examined by Ld. Defence Counsels.

11.4. PW-6 Ms. Sushma Rajput has deposed that "she was residing at the above said address for the last 22 years; that she was working in the accounts department of COSMOS school, Harsh Vihar, Jaitpur; that on 09.07.2018, she was present in the school; that her son Abhishek had gone to his office; that her husband Kripal Singh was present alone in the house; that she received a call from someone from her gali on her mobile who told her that Mudit Sharma and one his associate had beaten her husband Kripal Singh with knife and danda due to which her husband had received injuries; that on which she came to her house from the school and came to know that her husband had been taken to Apollo hospital; that she reached at Apollo hospital;

that she met her husband and he told her that Mudit Sharma and his SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 24 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

associate had caused injury to him and he also told that if he would not saved him today, they would have killed him; that she saw injuries on the neck and head of her husband; that accused Mudit Sharma used to come in her house occasionally and she knew him prior to the date of incident; that her husband told her that Mudit Sharma and another boy who was accompanying him had caused injury with knife and danda; that prior to one month of the incident, Mudit Sharma and another boy had come at their house; that she had offered tea and snacks to them; that Mudit Sharma was having danda at that time; that when she asked him as to why he was carrying danda with him on which Mudit Sharma told that he was going to a plot where some work is going on that's why he was carrying danda with him; that her husband had told her that after discharge from the hospital that another boy who was accompanying Mudit Sharma at the time of incident was the same boy who had come to their house prior to one month of incident had caused injury to her husband on the date of incident; that another boy who had come at their house along with accused Mudit Shamra on the date of incident is present in the Court today and correctly identified by her ". She was extensively cross-examined by Ld. Defence Counsels.

12. The present FIR was registered on the basis of complaint made by one Sh. Kripal Singh wherein he stated that he was working as Principal of COSMOS Public School and on 09.07.2018 at about 02:20 PM, he came back to his house from his job and was present in his house. At around 02:30 PM, somebody knocked at his door and he found Mudit Sharma, who was previously working in the COSMOS School, along with one of his associates standing there. Both of them SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 25 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:04:12 +0530 came inside and he served them with water. Accused Mudit Sharma was having danda in his hand and when Kripal Singh asked him about the reason behind the same, he said that the said danda was for him and his wife. Saying that accused Mudit hit him with danda on his head two to three times due to which the said danda was broken and fell on the ground. When he protested accused Mudit Sharma pull out one ustara kind knife and hit him on his neck with intention to kill him. He raised hue and cry upon which accused Mudit Sharma and his associate fled away from there. It is pertinent to note here that at that moment, only complainant/ injured Sh. Kripal Singh was present in the house and he was the only eye witness of the attack upon him by the accused persons. He was the star witness of the Prosecution but did not survive to narrate his ordeal to the Court in order to bring home the guilt of the accused persons.

12.1. As per the complaint made by Sh. Kripal Singh, somebody called at 100 number and that somebody was one Sh.

Jitender Singh who was examined as PW-2. He was residing in the neighbourhood of the complainant and came out of his house after hearing the noise of quarrel. He was the one who noticed Kripal Singh in the injured condition and accordingly called at PCR. Admittedly, PW-3 had not seen the quarrel and his testimony is of no help in order to prove the guilt of accused persons.

12.2. The next independent testimony is that of PW-2 Sh. Abhishek Rajpoot. He has deposed that he reached at Apollo hospital on the call received from his cousin Sh. Mohit Rajpoot who informed him that somebody had stabbed his father. When he asked his father as SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 26 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

to who had caused injury to him, his father told him that Mudit Sharma and one of the boys caused injuries upon him with ustara and danda. Similarly, PW-6 Ms. Sushma Rajpoot has also deposed on the same lines. She has stated that she is the wife of the injured Kripal Singh and reached home on the receipt of call about the assault on her husband. She was told by her husband Kripal Singh that accused Mudit Sharma and his associate caused injuries to him. From the above-said testimonies, it is quite clear that the testimonies of PW-2 and PW-6 are based upon the information derived from the complainant/ injured which makes his testimony to be hearsay evidence. Section 6 of the Evidence Act is an exception to be general rule whereunder the hearsay evidence becomes admissible. But for bringing such hearsay evidence within the provisions of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there should not be an interval which would allow fabrication. The statements sought to be admitted, therefore, as forming part of res gestae, must have been made contemporaneously with the acts or immediately thereafter. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. The conclusion is that the admissibility of the hearsay evidence is dependent upon the direct evidence which is that of complainant in the present case. However complainant could not be examined due to his death prior to his evidence and hence testimony of PW-2 Sh. Abhishek Rajpoot as well SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 27 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

2024.11.26 16:04:27 +0530 as PW-6 Smt. Sushma Rajpoot also looses significance. Secondly, complainant has alleged of some rivalry with the accused Mudit Sharma in his complaint whereas PW-6 Smt. Sushma Rajpoot has stated in her cross-examination that as per her knowledge accused Mudit Sharma had no misunderstanding with her husband Kripal Singh and she is not aware of any complaint against accused Mudit Sharma to the management of COSMOS Public School. She has further admitted of cordial relations between her husband and accused Mudit Sharma.

12.3. PW-4 Sh. Kapil Sharma was the next witness to be examined by the Prosecution and he has also not deposed as to who assaulted the complainant or as to how he was assaulted. He has simply deposed that he heard some noise when he reached in front of house bearing no. C-75, gali no.5 Om Nagar, Meethapur, Jaitpur and he came to know that someone had fled away after injuring someone in the said house. Consequently, he chased that person on a motorcycle and was succeeded in apprehending him at last with the help of Ct.

Gopal. The testimony of PW-2 Sh. Kapil Sharma has only proved one of the circumstances that he saw one of the accused coming out from the house of the complainant. However the question is whether that circumstance is of definite tendency unerringly pointing towards the guilt of the accused and the answer is definite 'NO'. He has neither deposed about the assault or as to who assaulted the complainant or how he was assaulted rather he has admitted that he has not seen the face of person fleeing from the house of injured Kripal Singh. In view of the same his testimony is also of no consequence.

SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 28 of 29 Digitally signed by GEETANJALI GEETANJALI Date:

12.4. PW-5 Sh. Jagdish Kumar has also not uttered anything about the cause and effect of the present incident. He too has deposed on the similar lines as PW-4 Sh. Kapil Sharma that he came outside from his house after hearing some noise and saw two persons coming out of the house of Kripal Singh and both of them ran in different galis. He tried to chase one of them but returned back when that person shown ustara to him. Though he deposed that those two persons may have caused injuries to Kripal Singh but failed to identify any of them under the pretext that he had seen the said person from back side and as such he is not in a position to recognize him.

13. In view of the aforesaid discussion, I reached to the conclusion that prosecution has failed to prove its case beyond reasonable doubt that it was accused Mudit Sharma and accused Sumit Yadav @ Monu who entered the house of the complainant with preparation and intention of quarrel and caused injuries on the head of Kripal Singh with the danda and a knife. In these circumstances, accused persons namely Mudit Sharma and Sumit Yadav @ Monu cannot be convicted for the offence punishable u/s. 307/452/34 IPC and they are accordingly acquitted of the offence charged.

14. File be consigned to Record Room as per rules.

Digitally Typed to the direct dictation and signed by announced in the open court GEETANJALI on this 26th day of November, 2024 GEETANJALI Date:

2024.11.26 16:04:52 (Geetanjali) +0530 Addl. Session Judge (FTC)-03 South East District,Saket Courts New Delhi/26.11.2024 SC No. 90/2019 FIR No. 397/2018 PS Jaitpur State. Vs. Mudit Sharma & Anr. Page no. 29 of 29