State vs Rajesh on 27 October, 2014

[Cites 25, Cited by 0]

Delhi District Court

State vs Rajesh on 27 October, 2014

          IN THE COURT OF SH.SURESH CHAND RAJAN
ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE(NDPS), 
                         DWARKA COURTS, NEW DELHI

S.C.NO.62/1/10
FIR No.57/10
U/s 302 IPC
PS J.P.Kalan

State 

Vs.
 
1. Rajesh s/o Sh. Chandan Singh
                                                                         .......... Accused

Challan filed on :16.11.2010
Reserved for order on: 13.10.2014
Judgment delivered on: 27.10.2014


JUDGMENT

Brief facts of the prosecution's case are that on 22.08.2010 HC Rakesh received information at about 10.15 p.m that one person has been murdered at village Kair, Pradhanwala Road. He filled form No.1 Ex.PW3/A and passed on the information to SHO. Thereafter, SHO Insp.OP Meena alongwith SHO Insp. Baltej Malik, SI Hazari Lal and other police officials reached at the spot i.e in front of gher of Rishal Singh, Phirni State Vs.Rajesh FIR No.57/10 Page No. 1 of 70 Wala Road, Village Kair where a dead body of male was found. On inspection of the same, several injuries were found on the head. PCR Van and CATS ambulance were there and ASI Sushila and Incharge of Ambulance declared the said persons dead. The copy of information is Ex.PW16/A. The name on enquiry of deceased was revealed as Rajbir s/o Mange Ram. Krishna wife of deceased also met there and she disclosed that Rajesh has murdered her husband. Crime team also reached and took photographs. The statement of Krishan Ex.PW13/B was recorded wherein she has alleged that accused Rajesh has murdered her husband by giving sariya blow on his head on 22.8.2010 at about 9.45 p.m. On this statement Ex.PW1/A, IO Insp.O.P.Meena, prepared rukka and got the case registered vide FIR no.57/10 u/s 302 IPC. Post mortem examination on the dead body was conducted. The investigation was done and accused Rajesh was arrested. Disclosure statement of accused was recorded and on 24.8.2010, accused got recovered the said iron rod. The statements of the witnesses were recorded and after completion of investigation, challan was filed.

2. This case being triable by the court of session and after committal proceedings, it was committed by the Ld.MM and State Vs.Rajesh FIR No.57/10 Page No. 2 of 70 received by the court of sessions on 22.11.2010.

3. The accused was charged u/s 302/34 IPC on 05.05.2011 by my Ld. Predecessor, Ms.Ravinder Kaur, ASJ/Special Judge(NDPS) to which the accused pleaded not guilty and claimed trial.

4. The prosecution in support of its case in all has examined as many as 20 witnesses. Thereafter the prosecution evidence was closed.

5. PW1 Smt. Krishan is the wife of deceased and she is the eye witness in this case. She has proved her statement given to police as Ex.PW1/A. She identified the iron rod Ex.P, wooden danda/sheru Ex.P2.

6. PW2 Ct. Hardeep Singh has deposed that on 21.10.2010 he accompanied Insp.O.P.Meena to village Khair, Phirni Road where they met Smt Krishna. He took measurement at her pointing out and prepared rough notes. Later, he prepared scaled site plan. The rough note is Ex.PW2/A and scaled site plan State Vs.Rajesh FIR No.57/10 Page No. 3 of 70 is Ex.PW2/B.

7. PW3 HC Rakesh Kumar has deposed that on 22.8.2010 and at about 10.15 p.m, he received call from Channel no.137 that one person was murdered at village Khair. This information was recorded on computer and gave the same to SHO PS Jafarpur Kalan. He brought Form I from the control room wherein the information was entered. The said form is Ex.PW3/A.

8. PW4 Ct.Vikram has deposed that on 23.08.2010,duty officer handed over him three envelopes which he delivered to area Magistrate and Sr.Police Officers by going on motorcycle no.DL1SS 3183. DD no. 4A mark PW4/A was made. He made arrival entry mark PW4/B.

9. PW5 HC Shiv Charan has deposed that on 23.8.2010 on receipt of DD no.20A mark PW5/A he alongwith Insp.OP Meena, Ct. Yashpal left the PS in Govt. Vehicle no. DL 1LC 9030 driven by Ct. Sunil in search of accused Rajesh. The reached near liquor shop of Saulda Kair Road where they saw Rajesh coming from the side of Saulda towards village Kair. He was B.C of the State Vs.Rajesh FIR No.57/10 Page No. 4 of 70 area and such they knew him before. He was apprehended and interrogated and he confessed about committing the murder of Rajbir on the night of 22.08.2010 with iron rod. He has further deposed that the disclosure statement of accused was recored which is Ex.PW5/PA. He had disclosed that he had thrown the iron rod in the fields of standing crops of 'bazra'. Accused also pointed out the place where he had thrown the weapon of offence as well as pointed out the place of incident vide memo Ex.PW5/A. He was arrested vide memo Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/C. Accused was medically examined and it was opined that he was under the influence of liquor. Next day they left for the fields of bajra after lodging DD no.10A and search of the field was conducted from where one iron rod was recovered which was lying in the water in the field. Before conducting search in the field, IO had requested Mr. Bittoo Rathi, the employee at the liquor shop but he refused. The sketch of rod was prepared which is Ex.PW5/D and on measuring it was found to be 73 cms and there were two rings on one side of the rod. The rod was seized vide memo Ex.PW5/E. It was deposited in malkhana. The site plan of the spot of recovery was prepared by the IO. The same is Ex.PW5/F. The pointing out memo of the fields is Ex.PW5/G. He identified the rod Ex.P1. State Vs.Rajesh FIR No.57/10 Page No. 5 of 70

10. PW6 HC Satpal has deposed that on 22.8.2010 he alongwith SI Deepak, Incharge Crime Team and Ct. Devender reached in village Kair where a deadbody was lying. One blood stained wooden danda was lying near his head. He clicked ten photographs of the spot. The negatives are Ex.PW6/P1 to P10 and photographs are Ex.PW6/P11 to P20. IO had seized the wooden danda from the spot in his presence.

11. PW7 HC Narender Singh has deposed that on 23.8.2010 he was working as MHC(M). On that day four sealed pullandas containing exhibits were deposed by Insp. OP Meena. The entries in this regard are bearing sr.no.907 and 908 copy of which is Ex.PW7/A. On 21.9.2010 again pullandas were deposited by Ct. Yashpal vide entry no.924 copy of which is Ex.PW7/B. He has further deposed that on 30.9.2010, he sent six pullandas to FSL Rohini vide RC no.45/21 copy of which is Ex.PW7/C. The receipt of deposit of case property in FSL is Ex.PW7/D.

12. PW8 Satender Kumar has deposed that on 22.08.2010 an information regarding an accident was received through control State Vs.Rajesh FIR No.57/10 Page No. 6 of 70 room. It was further informed that one person was lying injured at Village Kair. On receipt of this information, they reached there and found one person lying in pool of blood. The brain of the person had come out of his skull. One wooden piece of cot which is called 'sheru' was also smeared with blood and lying there. They examined the said person and declared him dead. Wife of the deceased was also there and she was interrogated by the police.

13. PW9 Jagbir has deposed that accused Rajesh is his nephew. He remain present and sleep in 'baithak' of 'firni'. Rajbir was his younger brother residing in the same village in a separate house alongwith his wife Krishna and children. Krishna used to prepare and give food to him. He has further deposed that before 22.8.2010 many times there used to be quarrel between Rajesh and Rajbir and it also happened in his presence. He had borrowed Rs.30,000/ from accused Rajesh for purchasing tractor about two years ago. He returned Rs.30,000/ to the wife of accused after three months and informed the accused but he fought with him as to why he had not returned Rs.30,000/ to him. Threefour days prior to 22.08.2010, while he was sitting in the baithak alongwith State Vs.Rajesh FIR No.57/10 Page No. 7 of 70 his relatives, accused came and abused him since he had refused to tilt the land belonging to accused.He has further deposed that on 22.08.2010 he had gone out on a rickshaw for outing and returned at about 7.30 p.m to his 'gher' and he saw his brother Rajbir standing at the door of his 'gher' and accused Rajesh was standing at the door of his house and they were quarreling with each other. He took his brother to his gher where he was making him understand not to quarrel with accused as he is bad character and earlier also he had committed some murder in the village. At about 7.45 p.m he was present with his brother in gher when his wife came to give him food and he told Krishna to take Rajbir to house and make him sleep and he had also informed that altercation had taken place between Rajbir and accused Rajesh. Again said when quarrel had taken place Rajesh was standing on the roof of his gher and Rajesh was on the ground. When Rajbir and Krishna left his gher, at that time accused Rajesh had come down from the roof on road. He warned Rajbir and Krishan to be careful. He had told Rajbir to carry 'lakdi' with him. It was dark at that time. Again said when Rajbir went out of gher he was carrying a thick danda. He bolted the door and went to sleep. At about 9.359.45 p.m, Rajesh came to his gher and knocked his door and called him outside. He came out and accused slapped State Vs.Rajesh FIR No.57/10 Page No. 8 of 70 him and at that time he was holding a rod in his hand. Rabir (should be Rajesh) told him 'ye tera sher i.e Rajbir mara hua pada hai road pe' and thereafter he left. He took out his cycle from the gher and started walking towards the house of Om Prakash and Rishal Singh. He is handicap since his birth. He heard the sound of veilling of his sister in law Krishna. He saw crowed and his brother Rajbir lying on road and rear portion of the head was found broken. Police reached there and lifted blood smeared danda lying near the spot. The dead body was removed to the hospital. He identified the dead body of his brother vide statement Ex.PW9/A. He identified the danda Ex.P2 & iron rod Ex.P1. He was partly declared hostile where he has admitted that accused Rajesh used to threaten and beat him and his brother Rajbir on one or the other pretext and they used to bear the said acts of accused out of fear. He admitted that on 22.8.2010 accused had given slaps, fist and leg blows to Rajbir near baithak on some previous issues. He also admitted that he has stated in his statement Ex.PW9/PA that his brother Rajbir came to his gher and brought food for him and while taking meals, he was advising his brother, ''ki Rajesh se panga mat le kyonki Rajesh badmash hai'' and they would lodge a complaint against him VOL. Rajbir had brought food for him and Krishna came later on to enquire about him. State Vs.Rajesh FIR No.57/10 Page No. 9 of 70

14. PW10 Kaptan has deposed that on 22.8.2010 he was sleeping in his house. At about 10 p.m, his daughter came and woke him up and informed that many persons had gathered near their house and there was a loud noise. He came out and saw gathering of many persons. Wife of Rajbir @ Leelu was also there. He made call at no.100 to the police from his mobile no. 9250636392. He was declared hostile by the prosecution and cross examined by the Ld. APP for the State wherein he has stated that he has not stated to the police in his statement that wife of Rajbir informed him that her husband was murdered by Ashok(wrongly typed it should be Rajesh). He know accused who is resident of his village.

15. PW11 SI Deepak Kumar has deposed that he alongwith HC Satpal photographer reached at the spot i.e. opp the house of Rishal Singh village Kair where one dead body of Rajbir was lying whose head was completely in pool of blood and head was broken and his brain was coming out from the skull. One wooden danda was also lying near the head of deceased. He inspected the spot and HC Satpal took photographs. He prepared State Vs.Rajesh FIR No.57/10 Page No. 10 of 70 the crime team report Ex.PW11/A.

16. PW12 Ct. Naveen Kumar has deposed that on receipt of DD no.20A regarding an accident, he alongwith SI Hazari Lal was about to leave to village Kair but an information was received at about 10.15 p.m in room of duty officer from HC Rakesh that the information was related to murder. Thereafter he alongwith SHO and other police went to the spot where one person was lying dead and a wooden danda smeared with blood was lying on the road. Ambulance was also there. Smt. Krishan also met there whose statement was recorded. The spot was got inspected by crime team. At about 12.30 a.m, rukka was prepared and handed over to him. He went to PS and got the case registered. Site plan was prepared by IO and exhibits were lifted and converted into pullandas. Dead body was deposited in mortuary. On 23.8.2010 post mortem on the dead body was got conducted and dead body was handed over to the brother of deceased vide receipt Ex.PW9/B. He has further deposed that after post mortem blood sample, shirt of grey colour and grey colour pant which were blood stained and blue colour underwear and one pair of black colour chappal were preserved.

State Vs.Rajesh FIR No.57/10 Page No. 11 of 70

17. PW13 HC C.L.Meena was working as Duty Officer. He recorded kayami DD no.3 which was handed over to Ct Sandeep who recorded FIR no.57/10u/s 302 IPC. He handed over copies of FIR and rukka to Ct.Naveen to give the same to Insp.OP Meena. Vide DD no.4A he sent copies of FIR to area MM and sr.police officers through Special Messanger. The copy of FIR is Ex.PW13/A. Endorsement on rukka is Ex.PW13/B and DD no.3A and 4A are Ex.PW13/C and D.

18. PW13A ASI Hazari Lal was with PW12 Ct.Naveen and he deposed on the lines of PW12 regarding going to the spot, finding a dead body, recording of statement of Krishan and getting the case registered through Ct. Naveen. He has further deposed that exhibits were lifted at the spot with the help of cotton. Pullanda were sealed with the seal of HL and seized vide memo Ex.PW13/A. Blood stained sheru which was lying near the head of deceased was also lifted and seized vide memo Ex.PW13/C. The case property was deposited in the malkhana. He has further deposed about conducting of post mortem and handing over of dead body to the brother of deceased. He has further deposed that State Vs.Rajesh FIR No.57/10 Page No. 12 of 70 on 26.8.2010 he again joined the investigation and told the IO that on 10.6.2010 a call regarding quarrel was received and he had made inquries and he had further informed IO that he had reached in village Khair on receipt of DD no.23A and found Smt. Krishan and many public persons. He informed that he saw accused Rajesh who was saying in loud voice that he was the BC of the area and that a false complaint has been lodged by Krishna and that he would not let her live. He also informed that there was altercation between both the parties on that night at the spot and after discussions with both the parties accused Rajesh was arrested u/s 107/151 Cr.PC. He identified the dark brown cotton wool swab Ex.P3, blood stained earth control Ex.P4 & sheru Ex.P2.

19. PW14 HC Amar Singh has also deposed that he accompanied with other police officials to the spot where one dead body was found. He deposed about lifting the exhibits from the spot. He identified the case property.

20. PW15 Dr. Parvinder Singh has deposed that the receipt of inquest papers i.e. application Ex.PW15/A, brief facts Ex.PW15/B, Copy of Fir Ex.PW15/C, death report i.e. form 25.35 State Vs.Rajesh FIR No.57/10 Page No. 13 of 70 Ex.PW15/D, statement of Om Prakash Ex.PW15/E and Jagbir Ex.PW9/A, he conducted post mortem on the dead body of Rajbir. He found injuries on the body as well as on head. He opined that the cause of death in this case was due to cranio cerebral damage(head injury), caused by hard blunt force impact. Time since death 14 to 15 hours. The clothings and blood samples preserved, sealed with the seal of RTRM Hospital and handed over to IO. His report is Ex.PW15/A.

21. PW16 ASI Sushil Kumar has deposed that he was on PCR Zerba 92 alongwith other staff when at about 10.10 p.m a call was received that on injured in an accident is lying at Kair Gaon Chairman Pradhan wala Road. They went to the spot and found one dead body of a male aged about 40 years. The head/brain of the deceased was broken (phata hua) and parts of brain had come out. Nearby one blood stained danda (sheru) was also found lying. He informed ZEBRA1. Ambulance of ALPHA24 also reached there. Thereafter Insp.OP Meena and his staff reached that. One lady was also there who was wife of deceased. The said person was declared dead. The copy of call book is Ex.PW16/A. State Vs.Rajesh FIR No.57/10 Page No. 14 of 70

22. PW17 HC Ashok Kumar has deposed that on 11.6.2010 SI Hazari Lal came and filed kalandra u/s 107/151 Cr.PC and accused Rajesh was also produced. He has produced the said file. The kalandra is Ex.PW13/DA, DD no.45A is Ex.PW17/A and statement of SI Hazari Lal is Ex.PW17/B.

23. PW18 W/Ct. Deepu Yadav has deposed that on 22.8.2010 she had received information at about 2205 hours that 'kair village, chairman pradhan wala road, accident and injured'. She filled up this information in PCR form, copy of which is Ex.PW18/A.

24. PW19 HC Krishna Kumar has also deposed that on 22.8.2010 he was posted as HC/DO and at about 10.10 p.m he received information through PCR that Kair, village, Chairman Pradhan Wala Road, Accident and injured".

25. PW20 Insp. O.P. Meena has deposed that on 22.8.2010 he received information from HC Rakesh through State Vs.Rajesh FIR No.57/10 Page No. 15 of 70 telephone from PCR command room that a murder has been committed on Chairman Pradhan wala Road, Rawta More, village Kair. SI Hazari Lal was in receipt of DD no.20A regarding accident at the same place. They reached in front of gher of Rishal Singh Phirni wala Road and found one dead body of male and there were several injuries on the head of the dead body and there was heavy bleeding. Smt. Krishna who met at the spot disclosed that her husband has been murdered by Rajesh. Crime team inspected the spot and took photographs. He recorded the statement of complainant, made endorsement Ex.PW20/A and sent rukka through Ct.Naveen. He prepared the site plan Ex.PW20/B. Blood was lifted from the spot and sealed with the seal of HL and seized vide memo Ex.PW13/A. He also lifted the sheru(wooden danda) from the spot and seized vide memo Ex.PW13/C. The blood stained earth was seized vide memo Ex.PW13/B. He sent the dead body for post mortem and deposited the case property in malkhana. On 23.8.2010 he got conducted the post mortem. He prepared the inquest papers the same is ex.PW15/D. After post mortem the dead body was handed over to the brother of deceased vide receipt Ex.PW9/B. He alongwith other police officials went in search of accused vide DD 20A and accused Rajesh was found near wine shop, Kair Saulda Road. He State Vs.Rajesh FIR No.57/10 Page No. 16 of 70 was apprehended and arrested vide memo Ex.PW5/B and his personal search was conducted vide memo Ex.pw5/C. His disclosure statement is Ex.PW5/PA. He pointed out the place of occurrence vide memo Ex.Pw5/A. He has further deposed that on 24.8.2010 accused got recovered a iron rod. The site plan of the place is Ex.PW5/F and pointing out memo is Ex.PW5/G. The sketch of the road is Ex.PW5/D and the rod was seized vide memo Ex.PW5/E. On 21.9.2010 Ct Yashpal brought the exhibits and deposited in malkhana and seizure memo is Ex.PW20/C. He also took Sh Hardeep Singh, Draftsman to the spot who prepared the site plan. He obtained the copies of relevant documents and DDS Ex20/D to Ex.PW20/D15. He sent the case property of FSL and report of FSL is Ex.PX and PX1. He identified the case property.

26. The evidence against the accused was put to him in his statement of accused recorded u/s 313 Cr.P.C in which he has pleaded his innocence and stated that he has been falsely implicated in this case by the police in connivance with the complainant Krishna as she wants to grab entire property of her husband. As such she will be a sole beneficiary after the death of her husband. Moreover, she was made as an accused in one case pertaining to suicide of her husband. Police officials with active State Vs.Rajesh FIR No.57/10 Page No. 17 of 70 connivance of complainant roped him in this false case because he had been bad character of the area and as such he is easy target to rope in this false and frivolous case.

27. I have heard Ld. APP for the State as well as Ld. Defence counsel for the accused. During the course of arguments, Ld. Counsel for the accused has heavily relied upon DD no.21A vide which the information regarding accident was passed on to the police and he has stated that the deceased had died due to accident in this case. Ld. Counsel as drawn the attention on the testimony of PW Krishna and stated that she has stated that a blow was given by the accused which do not corroborate with medical evidence as there are more than one injuries mentioned in the post mortem report. He has been named by the wife of deceased as there was prior enmity between both the parties. Ld. Counsel has drawn the attention of the court on various DDs as well as statement of doctor who has conducted the post mortem and stated that doctor has clearly admitted in his statement that such an injury could be possible due to accident. It is submitted that the accused may kindly be acquitted.

State Vs.Rajesh FIR No.57/10 Page No. 18 of 70

28. On the other hand, Ld. APP for the State has drawn the attention of the court on the statement of PW1 Smt. Krishna, wife of deceased Rajbir and Pw9 Jagbir and stated that Pw1 is the eye witness in this case and she has clearly assigned the role of accused. Ld. Addl. PP further submitted that the accused has also made extra judicial confession before PW9 Jagbir after commission of crime and there is no reason to disbelieve the statement of PW9. It is submitted that the accused may kindly be convicted.

29. In the overall analysis of the testimonies of all the witnesses, it is revealed that in this case PW1 Krishan is the wife of deceased Rajbir and she is the eye witness as she was accompanying her husband Rajbir to home at the time of incident. PW9 Jagbir is the supporting witness. So, this case depends on direct evidence. Considering this case to be on direct evidence, firstly, I have perused the testimony of PW1 Krishna since she is the main star witness of the prosecution case. She has stated that two months before 20th Aug 2010, Rajesh s/o Chandan had quarrel with them as they had borrowed some money from his wife and he claimed that it was not returned. He was told that the money has already been returned. On the same day her son State Vs.Rajesh FIR No.57/10 Page No. 19 of 70 Praveen and Ashish were playing on the road and accused while returning after grazing buffaloes blocked the way and abused them. She has further deposed that on 22.8.2010, her husband had taken meal for her brother in law(jeth) Jagbir to gher at about 8 p.m. He did not return till 9/9.30 p.m. She went to the gher to enquire as to why he had not returned. There she was informed by her husband and Jagbir that Rajesh, who was under the influence of liquor had beaten her brother in law. Thereafter, she alongwith her husband left and told her brother in law to bolt the door of gher. When they reached the gher of Rishal Singh, her husband was walking ahead of her. Rajesh came from behind from other side of his house and he was holding rod/saria in his hand and gave a blow with the same on the head of her husband, due to which the brain of her husband came out and he fell down on the ground. She raised alarm and several villagers collected there. After inflicting blow on the head of her husband, Rajesh ran away from the spot alongwith rod. Her husband was holding a long danda in his hand which fell down from his hand when he sustained injury. She has further stated that somebody from the public informed at number 100 and police came there. Her husband had already died. Police recorded her statement which is Ex.PW1/A. She identified the accused. She has further deposed State Vs.Rajesh FIR No.57/10 Page No. 20 of 70 that police had lifted the blood and blood stained earth from the spot and kept the same in plastic container. The danda belonging to her husband was also taken into possession by the police and some writing work was also done by the police at the spot. After several days of incident, police official namely Prakash Meena alongwith Sikh Gentleman had come to the spot and measured the spot with the help of pheeta and some document was prepared. She has stated that about two moths prior to the murder of her husband Rajbir, there was a quarrel between accused Rajesh and her husband and accused had threatened to kill her husband Rajbir. Her husband had lodged a complaint with the police and accused Rajesh was arrested by the police. Even before the murder of her husband, accused under the influence of liquor used to beat her jeth who is handicap, for no reason. She identified the iron rod P1 and wooden danda/sheru Ex.P2. In cross examination she has stated that accused Rajesh was not doing any work and he used to eat and drink only and indulge in illegal activities. His children used to remain alone in the house when their mother used to go for work. Three children out of four of accused are married. Accused is having quarter to four bigha of land and parents of wife of accused Rajesh namely Sheela, used to financially help Rajesh and his wife Sheela. As and when required, her husband State Vs.Rajesh FIR No.57/10 Page No. 21 of 70 used to borrow some money from the wife of accused Rajesh and similarly, the wife of accused Rajesh used to borrow money from her husband and they both used to return the said money. She has further stated that once accused Rajesh had quarreled with her husband as he was under the impression that her husband had not returned the money borrowed by him from the wife of accused and at that time Rajesh was under the influence of liquor and her husband had told that he has returned the money to her and some police complaint was lodged. The said complaint was lodged by her husband and police came and bahut ho halla hua and there the wife of accused Rajesh had given in writing that her husband had returned her money (usne likha ki kaka ne mera paisa de diya hai). Her husband Rajbir was Kaka of accused Rajesh in relation. The aforesaid incident of quarrel, when the police had reached on the complaint of her husband, took place about 2/21/2 months before the present incident. No complaint was lodged with the police by her when accused Rajesh had blocked the way of her children and had abused them. On the day of incident, her husband returned from his work at about 6 p.m. She used to start preparing meals at about 7.30 p.m.On the day of incident she had prepared the food and her children were taking dinner and it was drizzling on that day and her husband asked her that he would go State Vs.Rajesh FIR No.57/10 Page No. 22 of 70 to give meal/dinner to his elder brother Jagbir at gher and he went from the house at about 8 p.m alongwith the dinner for his elder brother Jagbir. Her husband also not taken dinner. When she reached at gher of Jagbir after about one or one and half hour, her husband Rajbir and Jagbir were talking to each other and by that time, her jeth Jagbir had not taken his dinner. When she reached there, both were talking. She did not call the police after husband was assaulted by the accused. She tried to save her husband when he was assaulted by accused despite that accused gave blow on the head of her husband with rod. After her husband fell down, she touched and found that he was not breathing. Her hands and clothes got blood stained. She denied the suggestion that her husband deceased Rajbir had not given any complaint against accused Rajesh. After incident she did not go back to home on that night prior to the arrival of the police there. There was no light at the spot when her statement was recorded. She had not stated in the statement recorded by the police that her husband Rajbir was having danda in his hand. She was wearing the same clothes which she was wearing before this incident. She had also not washed off her hands before the arrival of the police. The clothes worn by her were not demanded by the police. She had not stated to the police in her statement that her clothes were blood stained. State Vs.Rajesh FIR No.57/10 Page No. 23 of 70 The police had reached at the spot after about half an hour of the incident and during this period no vehicle had passed through the said road. None from the public had passed from the road VOL. When she raised alarm, villagers reached there. Her husband Rajbir was walking ahead of her while they were returning and he was at the distance of about oneone & half feet from her. It is correct that on the said road there are houses on one side and fields on the other side. Her husband was walking on right side of the road i.e. on the side of fields. She did not notice on which side of the road the police was conducting the investigation as at that time she was weeping and in bad state of mind. She does not know if the police made enquiries from the persons who had assembled. However, to her knowledge, police had made enquiries from her jeth. She denied the suggestion that she was not there at the spot or that she had not accompanied her husband while he was returning from gher. She further denied the suggestion that since there was no blood stains on her clothes, the same were not seized by the police. She further denied the suggestion that she had not witnessed the incident nor any transaction of money had ever taken place. She denied the suggestion that due to past animosity, accused has been falsely implicated by her in this case. State Vs.Rajesh FIR No.57/10 Page No. 24 of 70

30. PW9 Jagbir is the another material witness. He is the brother of deceased where deceased Rajbir had gone prior to alleged assault. He has deposed that Krishna used to prepare and give food to him. He has further deposed that before 22.8.2010 many times there used to be quarrel between Rajesh and Rajbir and it also happened in his presence. He had borrowed Rs.30,000/ from accused Rajesh for purchasing tractor about two years ago. He returned Rs.30,000/ to the wife of accused after three months and informed the accused but he fought with him as to why he had not returned Rs.30,000/ to him. Threefour days prior to 22.08.2010, while he was sitting in the baithak alongwith his relatives, accused came and abused him since he had refused to tilt the land belonging to accused. He has further deposed that on 22.08.2010 he had gone out on a rickshaw for outing and returned at about 7.30 p.m to his 'gher' and he saw his brother Rajbir standing at the door of his 'gher' and accused Rajesh was standing at the door of his house and they were quarreling with each other. He took his brother to his gher where he was making him understand not to quarrel with accused as he is bad character and earlier also he had committed some murder in the village. At about 7.45 p.m he was present with his brother in gher when his wife came to give him food and he told Krishna to take Rajbir to State Vs.Rajesh FIR No.57/10 Page No. 25 of 70 house and make him sleep and he had also informed that altercation had taken place between Rajbir and accused Rajesh. When Rajbir and Krishna left his gher, at that time accused Rajesh had come down from the roof on road. He warned Rajbir and Krishan to be careful. He had told Rajbir to carry 'lakdi' with him. It was dark at that time. Again said when Rajbir went out of gher he was carrying a thick danda. He bolted the door and went to sleep. At about 9.359.45 p.m, Rajesh came to his gher and knocked his door and called him outside. He came out and accused slapped him and at that time he was holding a rod in his hand. Rabir (should be Rajesh) told him 'ye tera sher i.e Rajbir mara hua pada hai road pe' and thereafter he left. He took out his cycle from the gher and started walking towards the house of Om Prakash and Rishal Singh. He is handicap since his birth. He heard the sound of veilling of his sister in law Krishna. He saw crowed and his brother Rajbir lying on road and rear portion of the head was found broken. Police reached there and lifted blood smeared danda lying near the spot. The dead body was removed to the hospital. He identified the dead body of his brother vide statement Ex.PW9/A. He identified the danda Ex.P2 & iron rod Ex.P1. He was partly declared hostile where he has admitted that accused Rajesh used to threaten and beat him and his brother Rajbir on one State Vs.Rajesh FIR No.57/10 Page No. 26 of 70 or the other pretext and they used to bear the said acts of accused out to fear. He admitted that on 22.8.2010 accused had given slaps, fist and leg blows to Rajbir near baithak on some previous issues. He also admitted that he has stated in his statement Ex.PW9/PA that his brother Rajbir came to his gher and brought food for him and while taking meals, he was advising his brother 'ki Rajesh se panga mat le kyonki Rajesh badmash hai' and they would lodge a complaint against him VOL. Rajbir had brought food for him and Krishna came later on to enquire about him. In cross examination he has stated that accused Rajesh is BC of the area since last about 1314years. When accused used to beat him, he did not talk to him. He had not given any written complaint against the accused Vol his deceased brother Rajbir had given complaint. He does not have any mobile phone.He does not wear wrist watch however, there is wall clock in the baithak of his gher. He denied the suggestion that he had not informed the police that Rajbir had borrowed some money from accused Rajesh. At the time of incident there was jwar and bajra crop in their field. The distance between his gher and the place where his brother Rajbir was lying was about 200 yards. He does not know the name of the person who had removed the dead body of his brother. He had not accompanied the said persons and dead body of his brother to the State Vs.Rajesh FIR No.57/10 Page No. 27 of 70 hospital. Rajbir had not shared dinner with him on 22.8.2010. There are houses at the distance of 30 feet from his baithak. When accused came to his baithak after the incident and slapped and threatened him, he had raised alarm and on hearing of which, his one neighbour came. He had not told the police about visit of his said neighbour on hearing his alarm. The name of the neighbour is Billu. He denied the suggestion that there was no altercation between Rajbir and the accused at the door at about 7.30 pm on 22.8.2010.

EYE WITNESSES & NUMBER OF INJURIES

31. There is well settled law in criminal jurisprudence "Stricter the penalty, stricter the proof. This case depends on direct evidence. So, the testimony of eye witnesses/complainant has to be scrutinized minutely.

32. The first and foremost contention of the ld. Counsel for the accused is also that the statement of eyewitness is not corroborated by medical evidence in this case. PW1 has deposed that on 22.08.2010, her husband, Rajbir had taken meal for his brother in law(jeth) namely Rajbir to Gher at about 8 p.m. PW9 State Vs.Rajesh FIR No.57/10 Page No. 28 of 70 has stated that Krishna used to prepare and give food to him. PW1 has further stated that her husband did not return home till 9/9.30 p.m. At this, she went to Gher to enquiry as to why he had not returned. She was informed by Jagbir that Rajesh, who was under

the influence of liquor, had beaten her brother in law. PW9 Jagbir (brother in law of PW1) has stated that 34 days prior to 22.08.2010, while he was sitting in the baithak alongwith his relatives, accused came there and abused him since he had refused to tilt the land belonged to accused. He has further stated that on 22.08.2010 he had gone out on a rickshaw for outing and returned at about 7.30 p.m to his 'gher' and he saw that his brother Rajbir was standing at the door of his gher and accused Rajesh was standing at the door of his house and they were quarreling with each other. PW1 Smt Krishna has stated that two months before 20th August, Rajesh had quarreled with them as they had borrowed some money from his wife. He quarreled that they had not returned the money. They had told him that the money was already returned. She has further deposed that on the same day in the evening accused blocked the way of her sons and abused them.

The statements of PW1 and PW9 clearly indicate that there has been some problem between the accused and the complainant/her family members.

State Vs.Rajesh FIR No.57/10 Page No. 29 of 70

33. PW9 Jagbir has stated that at about 7.45 p.m he was present alongwith his brother Rajbir in the gher when his wife came there to give him food. However, in cross examination conducted by Ld. Addl.PP for the state, PW9 volunteered that his brother Rajbir had brought food for him and Krishna came later on to enquire about him. In cross examination PW1 has stated that when she reached at the 'gher' of Jagbir after about one/one and half hour, her husband Rajbir and Jagbir were talking to each other and by that time her jeth Jagbir had not taken his dinner. From the above statement, it is clear that deceased Rajbir as well as PW1 Krishan had been to the place of PW9 in the night of 22.08.2010.

34. PW9 Jagbir has stated that on 22.08.2010 he had gone out on a rickshaw for outing and returned at about 7.30 p.m to his gher and he saw his brother Rajbir standing at the door of his house and accused Rajesh standing at the door of his house and they were quarreling with each other. Though PW1 has not stated about the quarrel of 22.08.2010 but she has stated about quarrel of 20th August . The quarrel of 22.08.2010 had taken place while deceased Rajbir was at the gher of PW9 Jagbir and therefore PW1 State Vs.Rajesh FIR No.57/10 Page No. 30 of 70 might not be aware about the same.

35. PW1 has further stated that thereafter she alongwith her husband left for her house and told her brother in law to bolt the door of the gher. PW9 has stated that he bolted the door from inside and went to sleep. He has stated that he warned them to be careful as accused Rajesh could assault them. He had told Rajbir to carry 'lakdi' with him, he saw Rajbir carrying a thick danda of one and half to two feet in length. They left at about 9.15 p.m. The statement of PW9 established that both PW1 and deceased left together from the place of PW9. PW1 has further stated that her husband was walking ahead of her and Rajesh came from behind from the side of his house and he was holding a rod/saria in his hand and gave a blow with the same on the head of her husband due to which the brain of her husband came out and he fell down on the ground. PW1 has assigned the role to accused Rajesh that he had given rod blow on the head of her husband due to which his brain has come out and he fell on the ground. There is no reason to disbelieve her version. Admittedly, accused is nephew in relation of PW9 and PW1 is the wife of brother of PW9. PW1 has also stated in cross examination that her husband Rajbir was Kaka of accused Rajesh in relation. The presence of PW1 at the spot is State Vs.Rajesh FIR No.57/10 Page No. 31 of 70 also established by the statement of PW10 Kaptan who has stated that wife of Leelu @ Rajbir was also there and she was weeping. He saw Leelu lying on the road. No question has been put to PW10 that he did not see PW1 Krishan at the spot. PW11 SI Deepak, PW12 Ct. Naveen, PW13 ASI Hazari Lal and PW20 Insp.O.P.Meena have stated that Smt. Krishan was found at the spot. No suggestion has been put to these witnesses that PW1 Krishan was not present at the spot. The presence of PW1 at the spot, is therefore proved. There is no reason for PW1 to depose against accused and let the real culprit go unpunished.

36. PW1 Krishna, in cross examination has stated that she had tried to save her husband when he was assaulted by accused Rajesh. She embraced the accused to save her husband, despite that accused gave blow on the head of her husband with rod. After her husband fell down, she touched her husband and she found that he was not breathing and she had checked her husband after the accused had run away from there. Her hands and clothes got blood stained. After incident she was not in her senses. By putting the above questions, the defence has admitted that accused Rajesh had assaulted deceased Rajbir and given blow with rod on his head.

State Vs.Rajesh FIR No.57/10 Page No. 32 of 70

37. PW1 has further stated that she raised alarm and several villagers collected there. After inflicting blow on the head of her husband, Rajesh ran away from the spot alongwith rod/saria. Her husband was holding a long danda in his hand which fell down from his hand when he sustained injury. Her statement is Ex.PW1/A. Due to incident she was weeping and upset as such she did not notice as to what was done with the plastic container and danda. She identified the iron rod as Ex.P1. She was also shown danda (sheru) and she stated that after her husband was hit by accused with iron rod, he fell down on the ground and the sheru/wooden danda came under his head and as such got blood stained. The danda is Ex.P2.

38. Ld. Counsel for the accused has relied upon case law AIR 2001 Supreme Court 4592 title Ramsewak & Ors. VS. State of M.P., wherein it has been observed in head note that : 'Penal Code (45 of 1860 S.300 - Murder - Proof -

Eye witness though not chance witness as he had brought lunch to his uncle (victim) in grazing field but there was missing link in evidence as after serving lunch why he waited for two hours in grazing field when incident took place - Unusual conduct of eye witness as through he saw accused persons heading State Vs.Rajesh FIR No.57/10 Page No. 33 of 70 towards his uncle with weapons hid behind tree, however, when he saw his father in neighbouring field did not join him - material contradictions between evidence of eye witness and medical evidence indicating suspicion about presence of eye witness - Considerable doubt in regard to place of incident..............' In case law AIR 1977 SC 1086 titled Narpal Singh & Ors. Vs. State of Haryana, in headnote (G) it is stated that : 'Evidence Act (1872), Sec. 3 - Penal Code (1860), Sec. 302 - Murder case - Evidence, appreciation of - Inconsistency between ocular and medical evidence as to number of injuries.

In case law AIR 1980 Supreme Court 1873, titled Purshotam & Anr Vs. State of M.P. it is stated in head note that: 'S.302 Evidence Act, S.3 - Murder - Proof -

Contradictions between medical testimony and alleged eye witness regarding fatal injury of deceased - Medical testimony to be preferred Judgment of Madhya Pradesh High Court, reversed'.

39. In view of the submissions of Ld. Counsel for the accused and observations of above case laws, I have perused the medical evidence. PW15 Dr. Parvinder has found following injuries as mentioned in Post Mortem report Ex.PW15/F. State Vs.Rajesh FIR No.57/10 Page No. 34 of 70

1. Lacerated wound measuring 17x3 cm present over right fronto temporo parietal region of skull with fracture of underlying right parietal, frontal and temporal bones (communited fractures) underlying brain substance exposed and lacerated placed obliquely extending from middle of forehead upto top of right parietal area, 7.5 cm from right ear pinna.

2. Abraded contusion measuring 15x2.5 cm situated over right fronto temporo parietal region of skull, parallel and adjacent to injury no.1 with fracture (communitted) of underlying skull bones (parietal temporal and frontal bones).

3. Lacerated wound measuring 6x10.5 cm placed obliquely situated over left side of forehead 2.5 cm from injury no.1.

4. Lacerated wound measuring 3.5x1.5 cm situated over left side of forehead obliquely placed, extending from middle of both eye brows upto middle of left side forehead.

5. Lacerated wound measuring 4.5x1.0 cm situated over back right ear pinna upper part.

6. Contusion (bluish colour) of size of 5x4 cm situated over and around right eye.

7. Contusion (bluish colour) of size of 6x4 cm situated over and around left eye.

8. Abraded contusion measuring 5x1.5 cm situated over left side of forehead, 2 cm above left eye brow.

9. Abraded contusion 4x2 cm situated over lateral aspect of State Vs.Rajesh FIR No.57/10 Page No. 35 of 70 left eye.

10. Contusion 6x2 cm situated over left temporal region 1 cm above left ear lobule.

40. He also found effusion of blood present under the scalp all over the skull. Fracture (communited) in right frontal, temporal and parietal bones present. Subdural and sub arachnoid hemorrhage present over right fronto temporo parietal lobes of brain. Free and clotted blood present at the base of the brain. Ventricles contains blood.

41. Ld. Counsel for the accused has submitted that there are 10 injuries present over the head of deceased while as per the statement of complainant accused gave a blow on the head of her husband due to which his brain came out. It is submitted that 10 injuries cannot be possible by one blow. On perusal of the statement of complainant, it is revealed that she has not mentioned as to how many blows were given on the head of her husband. She has stated that Rajesh came from behind from the side of his house and he was holding a rod/saria in his hand and gave a blow with the same on the head of her husband due to which the brain of her husband came out and he fell on the ground. In cross State Vs.Rajesh FIR No.57/10 Page No. 36 of 70 examination, she has stated that she tried to save her husband when he was assaulted by accused Rajesh, she embraced the accused to save her husband despite that accused gave blow on the head of her husband with rod. PW1 has specifically stated that she embraced the accused and it seems that she did not notice as to how many blows were given by the accused. Further, it has been clearly stated by PW1 that after rod blow, her husband fell down on the road. The force of rod in the present case was such that the mind (bheja) of deceased has come out. The sketch of rod by which blow was given is Ex.PW5/D. I have perused the same and it is revealed that it is not a simple sariya type rod but it is strong, thick rod with handle and it seems that it is a gym rod. In my view there is possibility of causing the injury(ies) as sustained by deceased by this rod. PW1 Krishna is a illiterate lady. This observation has also come in evidence. She also stated that she does not know the mobile number of her husband as she does not know how to dial a number. PW1 is an illiterate witness. She is not expected to make parrot like statement. She may not have been able to clarify the things properly. But in the facts and circumstances of the present case, it is emphatically clear that she has witnessed the incident and saw accused giving blow on the head of her husband. It is stated by PW1 that her husband had State Vs.Rajesh FIR No.57/10 Page No. 37 of 70 fallen down on the ground after he was given blow. It is a matter of general knowledge that when the deceased had fallen on the ground, he may also have sustained other injuries due to his falling on the ground. In consideration of the injuries on the head of deceased, it is revealed from the cross examination of PW15 Dr. Parvinder that injuries mentioned in post mortem report from sr.no. 3 to 10 are not sufficient to cause death and that injuries no. 6 to 10 could be caused by giving fist blow. Contusion is an injury caused by rapture of small blood vessels in tissues. Injury no.1 and 2 are sufficient to cause death. Injury no.1 & 2 could have been caused by same type of object and other injuries could have been caused by different objects. The statement of PW15 Dr. Parvinder clearly indicate that injury no.1&2 were caused by one weapon and injury no.3 to 10 were caused by another weapon. It is manifest that injury no.3 to 10 were not sufficient to cause death. On perusal of the injuries mentioned from sr.no.3 to 10, it is revealed that they are lacerated wounds, contusions and abraded contusions. PW1 has stated that she tried to save her husband when he was assaulted by accused, she embraced the accused to save her husband, despite that accused gave blow on the head of her husband with rod. The statement of PW1 clearly indicate that some manhandling had also taken place between accused and State Vs.Rajesh FIR No.57/10 Page No. 38 of 70 deceased when PW1 had tried to save and during which injuries would also have been caused. In my view such injuries could be possible by manhandling as well as fall. It has come in evidence of PW1 that her husband had fallen after he was hit and therefore it seems that the injuries from sr.no.3 to 10 was sustained by deceased due to manhandling and due to fall when he was hit by the accused. The submissions of Ld. Counsel for the accused is, therefore not well founded that only one blow was given by accused while deceased sustained 10 injuries. So, the case laws relied upon by the Ld. Counsel for the accused, with due respect are not applicable to the present facts and circumstances of the case.

COUNTRE COUP INJURY

42. As far as injury no.1 and 2 are concerned, it is stated by PW14 that they are sufficient to cause death in ordinary course of nature. I have perused the photographs clicked at the spot which are Ex.PW6/P11 to Ex.PW6/P20. As per the version of PW1 Krishna, she has stated that the danda being carried by her husband at that time came under his head when he fallen down after blow given by the accused. The said danda is visible near the head of deceased and something else is also lying there which State Vs.Rajesh FIR No.57/10 Page No. 39 of 70 came out of the head of deceased. It seems that one blow was given by accused due to which the deceased had fallen down on the ground and thereafter again a blow was given on the head by the accused. The submission of the Ld. Counsel is that PW15 has not noticed any countre coup injury on the deceased. In her examinationinchief, PW1 has stated that after her husband was hit by accused with iron rod, he fell down on the ground and the sheru/wooden danda came under his head and as such got blood stained. This version of PW1 corroborate the statement of PW15 Dr. Parvinder Singh as he did not notice any countre coup injury on the head of deceased and from their version it can be inferred that one blow was given by accused on the head of accused when the sheru/wooden danda came under his head and therefore doctor has not noticed any countre coup injury.

USE OF DIFFERNT WEAPON

43. Ld. Counsel submitted that as per medical evidence different weapons were used in commission of offence while as per the case of the prosecution only one iron rod was recovered and shown to have been weapon of offence. PW15 Dr. Parvinder Singh has stated in cross examination that injury no.1&2 could have been caused by same object and other injuries could have State Vs.Rajesh FIR No.57/10 Page No. 40 of 70 been caused by different objects. IO of the case PW20 Insp.OP Meena has stated that on 24.08.2010, accused Rajesh led the police party including him, HC Shiv Charan and Ct. Yashpal to field near wine shop, Kair Saulda Road and got recovered a iron rod which was found lying there in the rainy water. The pointing out memo is Ex.PW5/G and sketch of rod is Ex.PW5/D and the rod was seized vide memo Ex.PW5/E. In the present case, no doubt that only one weapon of offence has been alleged and recovered. On perusal of the injuries mentioned in post mortem report, it is crystal clear that injury no1&2 were caused by one weapon and rest of the injuries from sr.no.3 to 10 were laceration and abrasions for which weapon is not required and such injuries could have been inflicted during manhandling or due to fall. So, submissions of Ld. Defence counsel is not well founded. PLEA OF ACCIDENT

44. Ld. Counsel for the accused has further contended that the deceased has died in road accident and he has drawn the attention of the court on DD no.20A as well as cross examination of PW15. In cross examination, PW15 Dr. Parvinder has stated that it is correct that injury no.1&2 could have been caused by road traffic accident. But PW15 has no where stated that the State Vs.Rajesh FIR No.57/10 Page No. 41 of 70 injuries on the head of deceased had been due road traffic accident. I have perused DD no.20A. It has been alleged that at about 10.10. p.m accident taken place at Kair Village, Chairman Pradhan Wala Road. PW19 HC Krishan Kr recorded the said information. PW18 W/Ct. Deepa Yadav has recorded the information in PCR form which is Ex.PW18/A. PW16 ASI Sushil Kumar has stated that at about 10.10 p.m, a call was received that one injured in accident is lying at Kair Gaon Chairman Pradhan Wala Road. PW12 Ct.Naveen has stated that on receipt of DD no.20A regarding accident by SI Hazari Lal, he alongwith him was about to leave the PS for the spot, but an information was received at about 10.15 p.m in the room of duty officer from HC Rakesh that the above information was related to Murder. PW3 HC Rakesh has stated that at about 10.15 p.m, he received information from channel no.137 that one person was murdered at village kair, Pradhanwala Road. He recorded the information in form Ex.PW3/A. I have perused Ex.PW3/A. In this form, it is mentioned 'Ek Aadmi ka murder' and there is also mention about situation of scene of spot. Form I Ex.PW18/A recorded by PW18 W/Ct. Deepu Yadav which is regarding accident & injured. On perusal of the forms Ex.PW18/A it is revealed that it was recorded at about 22.05 p.m while form Ex.PW3/A was recorded at about State Vs.Rajesh FIR No.57/10 Page No. 42 of 70 22.15 p.m. Both the informations were passed on by one Kalu Ram from mobile number 9250636392. First information Ex.PW18/A was passed on at 22.05 p.m and then information Ex.PW3/A was passed on at 22.15 p.m. It seems that first information was passed on wrongly and thereafter second information was passed on by informer Kalu Ram. PW10 Kaptan Singh has stated that he had made call from his mobile no.9250636392. The above stated calls recorded by PW3 and PW18 have been made by PW10 Kaptan Singh as is stated by him through mobile no. 9250636392 and this mobile number also appears on form I. PW10 has stated about lying of Leelu @Rajbir on the road and that his wife PW1 was there and she was weeping. Ld. Counsel for the accused has not put any suggestion/question to this witness that he passed information about accident and not about murder. In cross examination, PW12 Ct. Naveen has stated that as they were about to leave, HC Rakesh of Zebra 92 PCR informed that there was a murder at Main Phirni Road, Chairman Pradhanwala Road, Village Kair. The spot is a phirni road and some vehicles passes through the road and it was not a much busy road. There was no need for the diversion of the traffic at the spot as the said road was not a busy road. The pieces of broken brain were found lying on the road. PW20 Insp. O.P.Meena has stated State Vs.Rajesh FIR No.57/10 Page No. 43 of 70 that he was handed over DD no.21A . He received intimation from PCR Command Room by HC Rakesh on his mobile and he made entry DD no.21A. SI Hazari Lal had received the call for accident and injured at Kair Village. PW13 ASI Hazari Lal has stated that at about 10.10 p.m, DD no.20A was handed over to him by the duty officer regarding an accident at Kair Village, Chairman Pradhanwala Road and also mentioning that one injured was there. At that time he and Ct. Naveen were present at the PS when another call was received at about 10.15 p.m from HC Rakesh of PCR and it was informed that there was a call of murder. PW16 ASI Sushil is from PCR has informed ZEBRA1 about lying of dead body and ambulance reached there. PW8 is the witness from CATS Ambulance who reached at the spot but finding police over there, he left. The contention of the Ld. Counsel is that deceased had died in an accident. However, on perusal of the evidence on record except Form I Ex.PW18/A there is no evidence from any of the witness that the deceased seemed to have met with an accident. PW15 has stated that injury no.1&2 could have been possible by traffic accident. But PW12 Ct.Naveen Kumar has stated that the spot is a phirni road and some vehicles passes through the road and it was not a much busy road. There was no need for the diversion of the traffic at the spot as the said road was State Vs.Rajesh FIR No.57/10 Page No. 44 of 70 not a busy road. Perusal of photographs Ex.PW6/P1 to Ex.PW6/P10 revealed the deceased was lying in between the road. He must have been lying there for consideration time. But as per statement of witnesses, no one has stated that vehicle passed through that road at that time. The statement of PW15 is crystal clear that it is not a busy road which indicate that only a few vehicle pass through the said road. PW20 Insp.O.P.Meena or any other witness of investigation have never stated that it was revealed to them that the deceased had been hit by some vehicle. There is also no evidence that marks of tyres were noticed at the spot. In his statement u/s 313 Cr.PC, accused has not taken any such plea that the deceased had met with an accident. He has never made any complaint before any authority that he has been falsely implicated in this case while deceased had met with an accident. Accused has failed to lead defence evidence in this case. During investigation, no such fact has come into limelight that deceased had met with an accident. Ld. Defence counsel has failed to put any suggestion to PW1 Krishan that her husband had sustained injuries as he met with an accident. In the absence of any such evidence, it can be safely held that no accident taken place at the spot on that day and that deceased had not sustained injuries, especially injury no.1&2 in an accident but the same were State Vs.Rajesh FIR No.57/10 Page No. 45 of 70 caused by weapon. The contention of Ld. Counsel for the accused is therefore not well founded.

NAME OF ASHOK AS ASSAILANT

45. Ld.Counsel for the accused has further taken the plea that the name of the assailant has been stated as Ashok by PW10 Kaptan. PW10 Kaptan who is informer of the incident, after being declared hostile by the prosecution has stated that he had not stated to the police that he was informed by the wife of Leelu @ Rajbir that her husband was murdered by Ashok s/o Chandan Singh or that he saw the blood lying there. He denied the suggestion of Ld. Addl.PP that aforesaid fact from point A to A of statement Ex.PW10/A were correctly recorded by police on his narration or that they are correct. In cross examination, a question was put to PW20 Insp.O.P.Meena by Ld. Defence counsel which is as under: Question: In the statement of Kaptan recorded u/s 161 Cr.PC, Kaptan has stated that he was informed by the wife of deceased that one Ashok had killed the deceased. Did you examine this person Ashok?

Answer: No, since the name of accused Rajesh is mentioned in the case diary recorded on the same day in which the version of the witness Kaptan was mentioned. The word Ashok mentioned in the State Vs.Rajesh FIR No.57/10 Page No. 46 of 70 statement of Kaptan u/s 161 Cr.PC is a clerical mistake.

46. In the statement u/s 161 Cr.PC of Kaptan, the name has been mentioned as Ashok s/o Chandan Singh. It is admitted fact that the father name of present accused Rajesh is Chandan Singh. From the statement of PW20 Insp. OP Meena, it is clear that the word Ashok recorded in the statement u/s 161 Cr.PC of PW Kaptan is a clerical mistake. The name of Rajesh is mentioned in case diary. The word 'Ashok' seems to have been a clerical mistake since the father name is mentioned correctly. There was no need to carry out any investigation about Ashok in the facts and circumstances of the case. Thus, this submission of Ld. Counsel is of no consequence.

RECOVERY OF WEAPON/SUBSEQUENT OPINION

47. Another contention of Ld. Counsel is that the weapon of offence was recovered from open place in this case and that no subsequent opinion has been taken from the doctor. PW20 Insp. OP Meena has deposed that on 24.08.2010 the accused Rajesh led the police party including him, HC Shiv Charan and Ct.Yashpal to a field near wine Shop, Kair Saulda Road, Delhi and got recovered a iron rod which was found lying there in the rainy water. He State Vs.Rajesh FIR No.57/10 Page No. 47 of 70 prepared a site plan Ex.PW5/F the place of recovery. A pointing out memo was also prepared which is Ex.PW5/G. He prepared a sketch of road Ex.PW5/D and seized the same vide seizure memo Ex.PW5/E. In cross examination, he has stated that it is correct that he did not show the weapon of offence to the doctor who conducted the post mortem for his opinion regarding the weapon of offence. It is correct that there was piece of brain on the sheru/danda. The weapon of offence was recovered from an open field on 24.08.2010 at about 9.30 a.m. No public witness was joined as a witness to the said recovery as none had agreed for the same. The said field was within the boundary of State of Haryana. He admitted that there was no boundary wall or fence around the field from where the weapon of offence was recovered and any person could walk in or walk out from the said field without any hindrance. PW5 HC Shiv Charan has stated in cross examination that he cannot tell the distance between the liquor shop from the place of recovery of iron rod but it was nearby situated. He does not know the name of the owner of the field from where the iron rod was got recovered. The liquor shop was not much nearer to the spot of recovery of rod and the said shop was in Haryana. It took about 30 minutes to one hour to search the rod. It took about 10 to 15 minutes in preparing the seizure memo Ex. PW5/E. There State Vs.Rajesh FIR No.57/10 Page No. 48 of 70 was standing crop of Bajra in the fields. The rod was pointed out by the accused. There was water in the fields due to rain. Accused Rajesh, Insp.OP Meena had entered the fields searching the rod. PW15 Dr.Parvinder Singh has stated in cross examination that in this case, he had not given any subsequent opinion. He was never shown the weapon of offence by the IO during the investigation of the case. In consideration of the evidence on record, no doubt that the recovery if rod i.e. weapon of offence was made from the open space i.e. fields and the IO has also not taken the subsequent opinion, but it is to be borne in mind that the present case depends on direct evidence and not on circumstantial evidence. Had the case been on circumstantial evidence, the above would have weighed in favour of accused. But the present case is on direct evidence as PW1 has seen the accused giving blows on the person of deceased (her husband). She has stated that due to blow given by accused with iron rod, the brain (bheja) of her husband has come out and fell on the road. In my view since the present case depends on direct evidence, recovery of iron rod from open field and non taking of subsequent opinion would not be fatal for the case of the prosecution. In view of this case law AIR 2000 SC 2059, 2002 Supreme Court 820, 1999 CRI.L.J.1687, 2997 CRI.L.J.1201 (HP), 2004 CRI.L.J.530 relied upon by the Ld. State Vs.Rajesh FIR No.57/10 Page No. 49 of 70 Defence counsel, with due respect, are not applicable to the present facts and circumstances of the case.

EXTRA JUDICIAL CONFESSION

48. Ld.counsel has further stated that extra judicial confession is a week type of evidence and that it cannot be taken into consideration. In the present case, PW9 has stated that at about 9.35 - 9.45 p.m, Rajesh came to his gher and he knocked his door and called him outside. He came out and accused slapped him and at that time, he was holding a rod in his hand which was approx. one and half feet in length and was lesser in length than the danda which was carried by Rajbir. Rajbir (typing mistake it should be Rajesh) told him 'ye tera sher i.e. Rajbir mara hua pada hai road pe' and thereafter, he left. In cross examination conduction by Ld. Addl.PP for the State he has again stated that it is correct that he had stated in his statement Ex.PW9/PA that when accused Rajesh came to his baithak on the same day i.e. on 22.08.2010 at about 10 p.m, where he was lying on the cot, he was holding iron rod in his hand and told him that he had killed his brother by assaulting on his head with the said road and he threatened him to be killed if he disclosed this fact to anyone or did any 'badmashi' and that at that time, he was drunk. He has State Vs.Rajesh FIR No.57/10 Page No. 50 of 70 stated that this fact is correct which he did not narrate in his chief examination since it went out of his mind.

49. It is settled position of law that extrajudicial confession, if true and voluntary, it can be relied upon by the court to convict the accused for the commission of the crime alleged. Despite inherent weakness of extra judicial confession as an item of evidence, it cannot be ignored when shown that such confession was made before a person who has no reason to state falsely and to whom it is made in the circumstances which tend to support the statement. Relying upon an earlier judgment in Rao Shiv Bahadur Singh v. State of Madhya Pradesh [1954 SCR 1098], Hon'ble Supreme Court in Maghar Singh v. State of Punjab [AIR 1975 SC 1320] has held that the evidence in the form of extrajudicial confession made by the accused to witnesses cannot be always termed to be a tainted evidence. Corroboration of such evidence is required only by way of abundant caution. If the court believes the witness before whom the confession is made and is satisfied that the confession was true and voluntarily made, then the conviction can be founded on such evidence alone. In Narayan Singh v. State of M.P. [AIR 1985 SC State Vs.Rajesh FIR No.57/10 Page No. 51 of 70 1678] it is cautioned that it is not open to the court trying the criminal case to start with presumption that extra judicial confession is always a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession is made and the credibility of the witnesses who speak for such a confession. The retraction of extrajudicial confession which is a usual phenomenon in criminal cases would by itself not weaken the case of the prosecution based upon such a confession. In Kishore Chand v. State of H.P. [AIR 1990 SC 2140] it has been held that an unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of any falsity. However, before relying on the alleged confession, the court has to be satisfied that it is voluntary and is not the result of inducement, threat or promise. The Court is required to look into the surrounding circumstances to find out as to whether such confession is not inspired by any improper or collateral consideration or circumvention of law suggesting that it may not be true. All relevant circumstances such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made have to be scrutinised. To the State Vs.Rajesh FIR No.57/10 Page No. 52 of 70 same effect is the judgment in Baldev Raj v. State of Haryana [AIR 1991 SC 37]. After referring to the judgment in Piara Singh v. State of Punjab [AIR 1977 SC 2274] Hon'ble Supreme Court in Madan Gopal Kakkad v. Naval Dubey & Anr.[JT 1992 (3) SC 270] held that the extra judicial confession which is not obtained by coercion, promise of favour or false hope and is plenary in character and voluntary in nature can be made the basis for conviction even without corroboration.

50. In the instant case the extrajudicial confession made by the accused has been sought to be proved by the testimony of PW9 Jagbir. It is noticed that PW9 is closely related to the accused. The confession has been made instantaneously immediately after the occurrence and is not alleged to have been procured under any undue influence, coercion or pressure. On perusal of the cross examination of PW9 it is revealed that no suggestion/question has been put by the Ld. Defence counsel that the accused never came to him and made confession regarding the crime. The statement of PW9 regarding coming of accused to him and making confession regarding the commission of offence therefore, remained unchallenged. There is no other suggestion State Vs.Rajesh FIR No.57/10 Page No. 53 of 70 which could tend to show that the evidence of PW9 is tainted and that the extra judicial confession was not voluntarily made by the accused. Ld. Counsel for the accused has argued that since PW9 has been declared hostile, the extra judicial confession attributed to the accused cannot be held to have been by the prosecution as a fact. It is true that PW9 has been partly declared hostile. But the time, the manner and the attending circumstances clearly prove that the accused had made a voluntary extra judicial confession before this witness without any fear, favour or coercion. In his examinationinchief the witness has stated that before 22.8.2010, many times there used to be quarrel between accused Rajesh and deceased Rajbir and many times it happened in his presence. On 22.8.2010 he had gone out on rickshaw and returned at about 7.30 p.m to his gher and he saw that his brother Rajbir was standing at the door of his gher and accused Rajesh was standing at the door of his house and they were quarreling with each other. He took his brother and made him understand not to quarrel with accused as accused was a bad character and earlier also, he had committed some murder in the village. He further stated about coming of wife of deceased to gher and about leaving of both of them from there and that Rajesh also came down from the roof. He has further stated that at about 9.359.45 p.m, Rajesh came to his gher State Vs.Rajesh FIR No.57/10 Page No. 54 of 70 and he knocked his door and called him outside. He came out and accused slapped him and at that time, he was holding a rod in his hand which was approx. 11/2 feet length and was lesser in length than the danda which was carried by Rajbir. Rajbir (should be Rajesh) told him 'ye tera sher i.e. Rajbir mara hua pada hai road pe' and thereafter he left. Thereafter he took out his cycle from the gher and started walking towards the house of Om Prakash and Rishal Singh. He is handicap since his birth. He reached near the house of Om Prakash and saw his brother Rajbir lying on road and his rear portion of head was found broken. PW9 was declared hostile on some points. Ld. Addl. PP got the some clarification regarding extra judicial confession and witness has stated that accused told him that he had killed his brother by assaulting on his head with the said iron rod and threatened to be killed if he disclosed this fact to anyone or did any badmashi and that at that time, he was drunk. There is no cross examination by the ld. Defence counsel regarding extra judicial confession. So, this fact stands admitted by the prosecution. I am of the view that the accused had voluntarily made the extra judicial confession to the aforesaid witness. There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared State Vs.Rajesh FIR No.57/10 Page No. 55 of 70 hostile his entire evidence should be excluded or rendered unworthy of consideration. In Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [AIR 1977 SC 170], it was observed that by giving permission to crossexamine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is crossexamined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases, the court can rely upon the part of testimony of State Vs.Rajesh FIR No.57/10 Page No. 56 of 70 such witness if that part of the deposition is found to be creditworthy. The terms "hostile", "adverse" or "unfavourable" witnesses are alien to the Indian Evidence Act. The terms "hostile witness", "adverse witness", "unfavourable witness", "unwilling witness" are all terms of English Law. The rule of not permitting a party calling the witness to cross examine are relaxed under the common law by evolving the terms "hostile witness and unfavourable witness". Under the common law a hostile witness is described as one who is not desirous of telling the truth at the instance of the party calling him and a unfavourable witness is one called by a party to prove a particular fact in issue or relevant to the issue who fails to prove such fact, or proves the opposite test. The right to crossexamine the witnesses by the party calling him is governed by the provisions of the Indian Evidence Act, 1872. Section 142 requires that leading questions cannot be put to the witness in examinationinchief or in re examination except with the permission of the court. The court can, however, permit leading question as to the matters which are introductory or undisputed or which have, in its opinion, already been sufficiently proved.

51. PW9 Jagbir, in cross examination has stated that State Vs.Rajesh FIR No.57/10 Page No. 57 of 70 when accused came to his 'baithak' after the incident and slapped and threatened him, he raised alarm and on hearing of which, his one neighbour came. The name of the neighbour is Billu. By putting this question in cross examination, admission has come on record that accused had come to the baithak of PW9 after incident.

52. In the present case, the statement u/s 161 Cr.PC of PW9 was recorded on 23.08.2010 and accused was also arrested on 23.08.2010 at 7.30 p.m. The statement of PW9 seems to have been recorded prior to arrest of accused. There is no reason to disbelieve PW9 who is related to the accused and has no reason to falsely implicate particularly when no inducement, threat or promise is allegedly given or assured. I am satisfied that there is sufficient evidence that the accused had made a voluntary extra judicial confession before PW9 without undue influence, pressure, promise or inducement. Such a statement was made by the accused instantaneously immediately after the occurrence. MOTIVE

53. The most important aspect of the present case or for that matter of any criminal case is a motive. Undoubtedly, motive is an important aspect of every criminal trial. Sometimes motive State Vs.Rajesh FIR No.57/10 Page No. 58 of 70 plays an important role and becomes a compelling force to commit a crime and, therefore, motive behind the crime is a relevant factor for which evidence must be adduced. A motive is something which prompts a person to form an opinion or intention to do certain illegal act or even a legal act but with illegal means with a view of achieve that intention. In a case where there is clear proof of motive for the commission of the crime, it affords added support to the finding of the court that the accused was guilty of the offence charged with, though at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable. In the present case as per the facts and circumstances, the motive has been alleged that the present case incident has taken place due to quarrel. PW1 has stated that two months prior to the murder of her husband Rajbir, there was a quarrel between accused Rajesh and her husband and the accused had threatened to kill her husband Rajbir. Her husband had lodged a complaint with the police and accused Rajesh was arrested by the police. She has further stated that even before the murder of her husband, accused under the influence of liquor used to beat her jeth who is handicap, for no reason. In cross examination she has stated that no record in writing was made in respect of the monetary State Vs.Rajesh FIR No.57/10 Page No. 59 of 70 transaction between her husband and the wife of accused Rajesh. They both used to return money in a short span i.e. 1015 days. Vol. Her husband Rajbir used to take money from the wife of accused Rajesh for his tractor as and when required and wife of accused Rajesh used to take money from her husband for agriculture purpose. Accused Rajesh was under the influence of liquor and his wife was telling that her(PW1's) husband had returned the money and in this regard some police complaint was lodged. Police came and 'bahut ho halla hua' and there wife of accused had given in writing that her husband had returned her money (usne likha ki kaka ne mera paisa de diya hai). PW9 Jagbir has stated that he had borrowed Rs.30,000/ from accused Rajesh for purchasing tractor about 2 years ago. He had returned Rs.30,000/ to the wife of accused after three months and he had also informed the accused in this regard but he fought with him as to why he had not returned Rs.30,000/ to him. In cross examination he has stated that deceased Rajbir had also borrowed some money from accused Rajesh and he had told this fact to the police, when he visited the PS. He visited PS twice or thrice.

54. The contention of the Ld. Counsel is that PW9 Jagbir had borrowed money from the wife of accused and not Rajbir and State Vs.Rajesh FIR No.57/10 Page No. 60 of 70 therefore there is no motive to kill Rajbir. But in cross examination, PW9 has clearly stated that Rajbir had also borrowed money from Rajesh. PW1 has also stated about taking money by them from the wife of accused Rajesh. Both have alleged to have returned the money. Admittedly there is no written transaction to this effect.

55. As alleged by PW1, I have perused the other evidence on record regarding complaint made against accused. PW13 ASI Hazari Lal has stated that on 26.08.2010, he had joined in the investigation with IO and on that day he was interrogated by the IO and he told him that on 10.06.2010, a call regarding quarrel was received and he had made inquiries and he had further informed IO that he had reached in village Kair on that night at about 10.30 p.m, on receipt of DD no.23A and there he found St. Krishan w/o Rajbir and gathering of many public persons. He further informed to IO that he saw Rajesh who is present in the court, who was saying in loud voice that he was the BC of the area and that a false complaint has been lodged by Krishan and that he would not let her live. He also informed that there was altercation between both the parties on that night at the spot and after discussing the matter accused Rajesh was arrested by him u/s State Vs.Rajesh FIR No.57/10 Page No. 61 of 70 107/151 Cr.PC. PW17 HC Ashok Kumar was posted in the court of SEM Sec.IX Dwarka as record keeper and he has stated that ASI Hazari Lal filed kalandra u/s 107/151 Cr.PC and accused Rajesh was produced. He produced the original file of SEM. The kalandra is Ex.PW13/DA and DD no.45 A is Ex.PW17/A and copy of statement is Ex.PW17/B. PW17 has not been cross examined. I have perused that statement of SI Hazari Lal Ex.PW17/B wherein it has been recorded that accused was saying that he is BC of the area and he will not leave the person who had made complaint against him. None was ready to give statement against him. He was therefore arrested u/s 107/151 Cr.PC and kalandra was filed which is Ex.PW13/DA. As per kalandra, the incident is stated to be of 10.6.2010 and present case incident had taken place on 22.08.2010. The statement of PW1 Krishna is corroborated by kalandra that a case was registered against accused Rajesh. The statement of PW17 regarding filing of kalandar against accused remained unchallenged. The above clearly indicate that accused was arrested u/s 107/151 about two months before the present case incident and this finds corroboration from the statement of PW1 Krishna.

56. PW9 has also stated that before 22.8.2010, many State Vs.Rajesh FIR No.57/10 Page No. 62 of 70 times there used to be quarrel between accused Rajesh and deceased Rajbir and many times it happened in his presence. On 22.8.2010, he had gone out on a rickshaw for outing and returning at about 7.30 p.m to his 'gher' and he saw that his brother Rajbir was standing at the door of his 'gher' and the accused Rajesh was standing at the door of his house and they were quarreling with each other. The above deposition of PW9 remained unchallenged as no suggestion has been put to him that no such incident had taken place on 22.08.2010 i.e. the day of the present case incident. Therefore, it can be safely held that there was altercation between the accused and deceased before the incident.

57. It has come on record that accused and deceased are in relation with each other. There is no reason for the wife or brother of deceased to implicate accused in the present case. The evidence on record clearly indicate the motive of accused to kill the deceased.

OTHER EVIDENCE

58. I have also perused the other evidence on file. PW20 Insp. O.P.Meena has deposed that on receipt of call they reached the spot in front of gher of Rishal Singh, Phirni Wala Road at State Vs.Rajesh FIR No.57/10 Page No. 63 of 70 about 10.30 p.m where deadbody of a male aged about 40 years was lying at the spot. PCR Van and CATS were there. PW16 is the witness from PCR who has stated about lying of one person at the spot and that one lady Krishan was there. He brought the copy of record Ex.PW16/A. PW8 Sh Satender Kumar is the witness from CATS Ambulance who also deposed about the scene of spot. PW20 has further deposed that dead body of male aged about 40 years was lying at the spot and there were severe injuries on the head of the dead body and there was heavy bleeding and that wife of deceased namely Krishna met them at the spot and disclosed that Rajesh has murdered her husband. All the PWS i.e PW6 HC Satpal, PW8 Satender Kumar, PW10 Kaptan, PW11 SI Deepak Kr, PW12 Ct. Naveen, PW13A ASI Hazari Lal, PW16 ASI Sushil Kumar have corroborated the statement of PW20 regarding lying of dead body at the spot and that wife of deceased named Krishna met them there. There is corroborative evidence in respect of presence of wife of deceased at the spot. The submission of the Ld. Counsel that it was an accidental death cannot sustain since none of the above PWS have stated that they have noticed some marks to tyres or the position of the body was such that it was seems to have met with an accident.

State Vs.Rajesh FIR No.57/10 Page No. 64 of 70

59. PW20 has further stated that Crime team was informed. PW6 HC Satpal is the photograph who took photographs Ex.PW6/P11 to Ex.PW6/P20 and PW11 SI Deepak is the witness from crime team who prepared report Ex.PW11/A. I have perused the photographs and the same shows that a dead body is lying on the road in pool of blood. One danda is lying near it and something else (alleged to be bheja) is also lying.

60. PW20 has further deposed that he recorded the statement of complainant Smt. Krishna, prepared rukka and sent Ct.Naveen for registration of FIR. PW1 Krishna has stated that her statement Ex.PW1/A was recorded by police official Sh. Om Prakash Meena and she put her thumb impression. Other PWs who are witnesses of investigation have also stated about recording of statement of Smt.Krishna by Insp.O.P.Meena. PW12 Ct. Naveen Kumar has stated that he took rukka to PS and got the case registered. PW13 HC C.L.Meena has recorded the FIR which is Ex.PW13/B and he sent copies of FIR to Senior Police Officials and Ld. Area MM through Ct.Vikram who has been examined by the prosecution as PW3. In view of the corroborative evidence, the copy of FIR stands proved.

State Vs.Rajesh FIR No.57/10 Page No. 65 of 70

61. PW20 has further deposed that he prepared the site plan Ex.PW20/B at the instance of Smt. Krishna and lifted the blood from the spot, sealed with the seal of HL and seized vide memo Ex.PW13/A. PW1 Krishna has corroborated his version that blood and blood stained earth was lifted from the spot and danda was also taken by the police and some writing work was done and her thumb impression were obtained. PW20 has further deposed that he prepared the inquest papers which is Ex.PW15/D and post mortem was got conducted. PW15 Dr. Parvinder has conducted the post mortem whose statement has been discussed at length in the preceding paras of judgment.

62. PW20 has further stated that on 23.08.2010 accused Rajesh was apprehended and arrested vide memo Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/C. His disclosure statement was recorded which is Ex.PW5/PA. He pointed out the place of occurrence vide memo Ex.PW5/A. The statement of PW20 has been corroborated by PW5 HC Shiv Charan regarding arrest, personal search and disclosure statement. He has also stated that accused was got medically examined and MLC was collected whereby it was opined that accused was under

the influence of liquor. So, even at the time of arrest, accused was State Vs.Rajesh FIR No.57/10 Page No. 66 of 70 in drunken state. Both the PWS, PW20 and PW5 have further corroborated the statement of each other that accused led the police party to a field near wine shop and got recovered a iron rod which was found lying in the rainy water. He prepared the site plan Ex.pw5/F and pointing out memo Ex.PW5/G. The sketch of the road is Ex.PW5/D which was sealed with the seal of HL and seized vide memo Ex.PW5/E. The said rod has been duly identified by PW1 Smt. Krishna as well as other recovery witnesses. The recovery of rod was effected on the disclosure statement of accused. So, the arrest as well as recovery of iron rod has been proved.

63. PW20 has further stated that he deposited the exhibits in malkhana on 21.09.2010. PW7 HC Narender Singh is the MHCM who made entries regarding deposit of case property in malkhana. The copy of the entry is Ex.PW7/A and B. I have perused the entries and in view of the evidence, it is proved by the prosecution that the case property was deposited in the malkhana.

64. PW20 has also stated that on 21.10.2010 Sh. Hardeep Singh Astt. Draftsman took measurement and prepared the scaled site plan. PW2 Ct. Hardeep has stated that he prepared the rough State Vs.Rajesh FIR No.57/10 Page No. 67 of 70 notes at the pointing out of Krishna. PW1 Krishan has stated that after several days of incident, the police official namely Prakash Meena alongwith some Sikh Gentleman had come and measured the spot with the help of Pheeta and some documents were prepared at her instance regarding the spot. So, there is corroborative evidence regarding preparation of scaled site plan by PW2.

65. PW20 has further stated that he sent the case property of FSL. The result of FSL is Ex.PX and PX1. As per result blood was detected on Ex.1 i.e dark brown cotton wool swab described as blood of deceased, Ex. 2 i.e. concrete material described as blood stained earth control, Ex.3 i.e. one wooden stick described as sheru, Ex.5a i.e. one shirt, Ex. 5C i.e. one underwear, Ex.5d i.e. a pair of chappals and Ex. 6 i.e. brownish gauze cloth piece described as blood sample gauze piece. Blood could not be detected on Ex.4 i.e. one iron rod. It is the case of the prosecution that it was raining on that day. Therefore, it seems that blood from the iron rod was washed off.

66. In nutshell, the present case is based on direct evidence as PW1 Krishan who is wife of deceased has seen State Vs.Rajesh FIR No.57/10 Page No. 68 of 70 accused Rajesh giving blow on his head with iron rod. She has identified the accused and specifically assigned his rod that he gave iron rod blow on the head due to which the mind(bheja) of her husband had come out. The accused is a person out of relation of accused as she has stated that her husband Rajbir was Kaka of accused Rajesh in relation. There is no reason for PW1 to falsely implicate accused in this case. The presence of PW1 at the spot has been established by the statements of police officials as well as PW 10 Kaptan.The submission of Ld. Counsel that her blood stained cloth were not seized is of no consequence since she is a illiterate witness who even does not know how to operate mobile and therefore it seems that she had washed her clothes. But she has clearly stated that her clothes were got blood stained. Ten injuries were sustained by the deceased out of which injury no.1&2 were sufficient to cause death in ordinary course of nature. Other injuries were laceration and abrasions which can be possible due to manhandling and fall on ground after being hit by iron rod. This aspect has been discussed at length in the preceding paras of the judgment. The accused has also made confession about the crime before PW9 Jagbir who is handicapped brother of deceased. PW9 has clearly stated that there was quarrel between accused and Rajbir on the same evening when he returned after a State Vs.Rajesh FIR No.57/10 Page No. 69 of 70 walk. The statement of PW9 was recorded by the police before arrest of accused and therefore it inspires confidence. The submissions of Ld. Counsel that the recovery of rod was from open place and no opinion was taken on it, is of no consequence since this case depends on direct evidence.

67. In view of my above discussions, I am of the opinion that the prosecution has left no stone unturned to prove its case beyond reasonable doubt. The prosecution has proved the charge against accused u/s 302 IPC. I, therefore hold accused Rajesh guilty for the commission of offence punishable u/s 302 IPC and convict him thereunder.

Announced in the Open Court on 27.10.2014.

(SURESH CHAND RAJAN) ASJ/SPECIAL JUDGE(NDPS) NEW DELHI State Vs.Rajesh FIR No.57/10 Page No. 70 of 70

Legal Document View

Unlock Advanced Research with PRISMAI

Delhi District Court

State vs Rajesh on 27 October, 2014