Delhi District Court
State vs Suresh on 25 March, 2025
IN THE COURT OF SUSHANT CHANGOTRA
ADDITIONAL SESSIONS JUDGE (FTC)
EAST DISTRICT, DELHI
Session Case No.: 2650/2019
State Vs : Suresh
FIR No. : 96/2019
U/s : 302 IPC & 174-A IPC
PS : Gazipur
CNR No.: DLET01-006502-2019
Date of Institution : 30.07.2019
Date of Judgment reserved on 25.03.2025
Date of Judgment : 25.03.2025
Brief Details Of The Case
Offence complained of or
proved : U/s 302 IPC 174-A IPC
Name of the accused : Suresh
S/o Sh. Chote Lal
R/o Pagari Riharva PS
Visheshvar Ganj, Dist.
Bahraich, UP.
Plea of the accused : Pleaded not guilty
Final order : Convicted u/s 302 IPC &
174-A IPC.
JUDGMENT
1. In this case, accused Suresh is facing trial on the allegations of having committed murder of Mahajan on FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 1 of 40 06.04.2018 at 8:30 AM in front of shop no. C-265, Paper Market, Gazipur, Delhi.
2. The brief facts of the case of prosecution as set out in the chargesheet are as follows:-
(a) On 06.04.2019 upon receipt of DD no. 14A, SI Amit Bharadwaj alongwith Ct. Dinesh went to the spot i.e. in front of shop no. 265, Paper Market. Upon reaching there, they saw that blood had spilled on the road in front of the shop and crowd had also gathered at the spot. They came to know that someone had hit another person with an axe a later while ago and the injured had been taken to hospital by his family members. However, they did not meet any eye-witness of the scene of crime.
(b) In the meanwhile, duty officer of PS Gazipur informed the aforementioned police officials about a call received regarding admission of one Mahajan S/o Pachai R/o Katra Sarnasti, Behraich, U. P. in LBS Hospital due to injuries.
SI Amit Bharadwaj left HC Vishal and Ct. Dinesh at the spot and went to LBS Hospital. In the hospital, injured namely Mahajan was found to have been referred from LBS Hospital to GTB Hospital. SI Amit Bharadwaj collected the MLC no. 3575/19 of injured Mahajan from LBS Hospital and the doctor had observed that he was admitted with history of "Assault particular of injury, lacerated wound over parietal area having size approximately FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 2 of 40 7x2 cm, O/E - Active bleed and the nature of injury was mentioned as under observation."
(c) SI Amit Bharadwaj went to GTB Hospital, but the patient Mahajan was declared unfit for statement. IO met the wife of injured namely Smt. Krishnawati and IO recorded her statement. In her statement, she disclosed that she was residing with her family in jhuggi situated opposite to C-265, Paper Market, Gazipur, Delhi. On the said day, at about 8 AM Smt. Nankarna i.e. mother of Suresh was abusing them by alleging that they had hit their dog. Then, altercation ensued between Vipai Lal i.e. father of Suresh and her husband Mahajan, but both of them went back to their houses. After sometime, her husband was standing outside and Suresh S/o Vipai Lal came there and stated that he will teach her husband Mahajan a lesson for misbehaving with his father. Then, he brought an axe from his jhuggi. Thereafter, Suresh gave a blow with axe on the head of her husband with intent to kill him. Subsequently, Suresh fled away from the spot alongwith his axe and Mahajan fell on the road. Someone from the crowd called the police at 100 number. She alongwith her 'Nandoi' Raju took her husband Mahajan to LBS Hospital in an auto and he was referred to GTB Hospital.
(d) On the basis of said statement, IO prepared tehrir and sent Ct. Dinesh to police station for registration of FIR. Then, SI Amit Bharadwaj collected the blood from the street in a gauze, lifted blood with soil and earth control FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 3 of 40 samples. He prepared pullanda of aforementioned samples and sealed the same. The seal after use was handed over to HC Vishal. He prepared site plan at the instance of Smt. Krishnawati. In the meanwhile, Ct. Dinesh came back to the spot and handed over copy of FIR and original tehrir to him. Ct. Dinesh also informed him that the crime team had visited the spot when he was in hospital and it inspected the spot and took photographs. He recorded statement of police officials u/s 161 Cr. PC and came back to police station and deposited the samples / exhibits in the malkhana.
(e) In the police station, Ct. Prem handed over the custody of accused Suresh to SI Amit Bharadwaj and stated that police officials of PCR - R-84 had brought him to police station. IO interrogated the accused at length and he confessed the commission of crime. Accused took the police officials behind his jhuggi and got the axe used in commission of offence recovered from there. SI Amit Bharadwaj observed that there was blood spots on the said axe and therefore he covered the said portion of said axe with white cotton. SI Amit Bharadwaj took the measurements of axe and it was 15 cm long, 10 cm wide and the length of its butt was 2 feet 13 cm. IO prepared pullanda and sealed the same. He handed over the seal to HC Vishal after its usage. He also got prepared pointing out memo at the instance of Vishal. They brought the accused and case property to police station and case property was deposited in FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 4 of 40 malkhana. He recorded statements of Ct. Dinesh and HC Vishal u/s 161 Cr. PC.
(f) Thereafter, SI Amit Bharadwaj again went to GTB Hospital, but the injured Mahajan was declared unfit. He met Sanju S/o Virahi who had accompanied the injured to hospital and recorded his statement u/s 161 Cr. PC. The accused was produced in the court and was remanded to J/C.
(g) On 08.04.2019, the duty officer of PS Gazipur telephonically informed SI Amit Bharadwaj that the injured Mahajan had died in the hospital. SI Amit Bharadwaj alongwith Ct. Naveen went to GTB Hospital. The postmortem examination of deceased was got conducted and after that the dead body was handed over to relatives of deceased. The doctor who conducted postmortem examination handed over exhibits i.e. blood in gauze and sealed clothes to Ct. Naveen. The same were handed over to SI Amit Bharadwaj and he seized the same by preparing seizure memo. Thereafter, they came back to police station and the seized articles were deposited in malkhana and SI Amit Bharadwaj recorded statement of Ct. Naveen u/s 161 Cr.PC. Section 302 IPC was added and further investigation of the case was assigned to Insp. Rajeev Kumar Vats.
(h) IO Insp. Rajeev Kumar Vats obtained postmortem examination report with inquest papers. As per postmortem report the death of Mahajan was caused due to shock as a result of ante mortem head injury produced by sharp FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 5 of 40 edge weapon and it was sufficient to death in ordinary course of nature. Thereafter, he sent the exhibits to FSL for examination. On 14.05.2019, Ct. Neeraj handed over the copy of forwarding letter, copy of RC no. 66/21/19 and copy of FSL acknowledgment dated 14.05.2019 to him. IO recorded statements of Ct. Neeraj and HC Arvind Kumar u/s 161 Cr. PC.
(i) During investigation, IO also obtained PCR call form and certificate u/s 65-B of Indian Evidence Act. He inquired from the person namely Vikran Singh who had made PCR call from his mobile no. 8929980569 and recorded his statement u/s 161 Cr. PC. He informed the IO that he had not seen the incident, but had called the PCR on seeing a person in injured condition. IO also examined HC Jafar i.e. Incharge PCR Van, R84 who had attended the call and recorded his statement u/s 161 Cr. PC. He disclosed that on 06.04.2019 being the Incharge of R-84 PCR van he received a call at 8:43 AM that a person had injured another man by hitting an axe on his head in front of plot no. 265. Upon reaching there, they saw that public persons had already taken the injured to hospital and the crowd had apprehended one person. In the meanwhile, their inspecting officer i.e. Tiger-43 also came to the spot. They rescued the person who had been caught by public i.e. Suresh S/o Chote Lal @ Vifai. The public present at the spot was saying that he had hit Mahajan with an axe. They brought Suresh to police station FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 6 of 40 in PCR van and handed over his custody to Ct. Prem, but said accused was not having any axe with him at that time.
(j) During the course of investigation IO got the scaled site plan prepared from Insp. Mahesh. He recorded statement of Insp. Mahesh Kumar u/s 161 Cr. PC. The complainant Smt. Krishnawati made a complaint against SI Amit and stated that since her family had been destroyed, therefore, she also wanted to whole family of accused Suresh to be put behind the bars. She alleged that father of Suresh was sitting on a mattress and was abusing. Then the mother of accused Suresh namely Nankarna had brought the axe from inside her jhuggi and she had gave the same to accused Surety after instigating him to kill her husband. However, during investigation the later said allegations were found to be willful improvements. IO also recorded statements of HC Vishal and three public persons namely Kamal, Lal Babu and Pushkar. All the said witnesses stated that they were present near their own jhuggis which was at a distance of approximately 200 meters from the place of incident. It was found that Kamal was not the eye witness as his jhuggi was far away from the place of incident, but he had only caught accused from the other side of park upon hearing noise of public. He had handed over accused Suresh to PCR officials.
(k) The other two public persons i.e. Lal Babu and Pushkar were the relatives of deceased. Their version was quite similar and appeared to be afterthought for naming the mother FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 7 of 40 and father of accused. However, the said version were not corroborated by any of the independent witnesses. Therefore, accused Nankarna was kept in column no. 12 in chargesheet as no sufficient evidence was available against her.
(l) In the course of investigation, IO deposited exhibits in FSL, Rohini and got the photographs of crime scene and ultimately he presented chargesheet u/s 302 IPC against accused Surety Subsequently, FSL report dated 31.07.2019 and subsequent opinion of Senior Resident of GTB Hospital was obtained and the supplementary chargesheet was filed.
3. The court of Ld. Metropolitan Magistrate took cognizance of the offences. After completion of necessary legal formalities u/s 207 Cr.P.C the case file was committed to the Court of Sessions. Pursuant to order of Ld. District & Sessions Judge, East, the matter was fixed for hearing on point of charge. Vide order dated 26.08.2019 charge u/s 302 IPC was framed against accused Suresh to which he pleaded not guilty and claimed trial.
4. At this juncture, it is necessary to note that during pendency of trial, accused Suresh absconded and he was declared P. O vide order dated 01.09.2022. Subsequently, he was arrested and charge u/s 174-A IPC was framed against him to which he pleaded guilty and claimed trial.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 8 of 40
5. In order to establish its case, prosecution examined 26 witnesses. A brief account of the depositions made by the prosecution witnesses is reproduced herein below:-
Evidence of Eye-Witness:
6. PW-2 Ms Krishna Wati deposed that on 06.04.2019 at about 8 am, she alongwith her husband/deceased Mahajan and her children were present in their jhuggi. In the meanwhile, Smt. Nankarna i.e. mother of accused Suresh started abusing them by saying that they had beaten her dog. An altercation took place between her husband and Sh. Bifai Lal i.e. father of accused Suresh. After sometime, her husband Mahajan was standing outside their jhuggi and accused Suresh came there and threatened to teach him a lesson as he had insulted his father.
Thereafter, accused Suresh went to his jhuggi and his mother Nankarna gave an axe (kulhari) to accused Suresh and the said accused Suresh came back to the spot and in order to kill her husband he hit the axe on his head.
PW Smt. Krishnawati further deposed that as a result of blow of axe, blood started oozing out from the head of her husband. Accused Suresh fled away from the spot with the axe. One person namely Kamal chased accused and apprehended him at some distance and axe was seized from accused Suresh. She also stated that persons namely Suraj, Lal Babu and Kamal were also present near the spot at the time of incident. She alongwith her relative Raju took her husband to FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 9 of 40 LBS Hospital in an auto rickshaw. Her husband was referred to GTB Hospital. Police officials came to GTB Hospital and recorded her statement i.e. Ex.PW2/A. The doctor seized the clothes of her husband and she had brought another set of clothes for her husband. She pointed the place of incident to the police officer and also put her thumb impression on the site plan Ex.PW2/B. Her husband died in GTB Hospital due to injuries caused by accused Suresh. Dead body of her husband was taken by her relatives. She gave a complaint to SHO and Police Commissioner i.e. Ex. PW2/C. During her deposition she correctly identified accused Suresh and also identified clothes of her husband i.e. one pant, shirt and shorts Ex.P1 (colly). She also identified the axe Ex. P2 as the same by which accused Suresh had caused injuries to her deceased husband.
Evidence of Public Person:
7. PW-1 Vikrant Singh was the person who had called the PCR. He deposed that on the morning of 06.04.2019 he was going for taking his coaching classes at Laxmi Nagar. While passing through Gazipur paper market i.e. just before Police Station, he saw that several public persons had gathered there and a person was lying injured with head injury. He came to know that the injured had been assaulted by someone with an axe. Thereafter, he made a call to police at 100 number from his mobile no.8929980569. Public persons took the injured to hospital in an auto rickshaw.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 10 of 40 Formal Witness-
8. PW-3 Hub Lal deposed that deceased Mahajan was his real brother. On 08.04.2019, he identified dead body of his deceased brother in the mortuary vide his statement Ex.PW3/A.
9. PW-4 Tagai deposed that on 08.04.2019, he went to GTB Hospital on the direction of IO and identified the dead body of his brother/deceased Mahajan vide identification memo Ex.PW4/A. Medical Evidence-
10. PW-5 Dr. G.K. Himanshu i.e. J. R. LBS Hospital deposed that on 06.04.2019 patient Mahajan was brought in the casualty with alleged history of assault. The patient was in drowsy condition and the patient was not maintaining SPO2 (oxygen level) due to which he was given oxygen. He prepared MLC of above-said patient Ex. PW5/A. He provided initial treatment to the patient and referred him to SR (Surgery) for further management and treatment.
11. PW Dr. Himanshu i.e. S. R. in GTB Hospital deposed that on 06.04.2019 a person namely Mahajan was referred to GTB hospital from LBS hospital for medical examination/treatment. He found multiple lacerated wounds over the parietal area of the size 7x2x2 cm approximately and he was bleeding from the parietal area. He examined him and prepared MLC ExPW5/A. The said patient was unfit for statement on 06.04.2019 at 12:45 PM.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 11 of 40
On the same day i.e. 06.04.2019, the patient was admitted in nureosurgery department with severe head injury and a very poor glasgow coma scale (score 3/15). NCCT head of patient was done which showed evidence of left front temporal parietal acute SDH with mid line shift. The patient expired on 08.04.2019 at 3:22 am as a result of severe head injury. He prepared detailed death summary and death papers i.e. Ex. PW23/B. He also proved his death certificate Ex. PW23/A.
12. PW-10 Dr. Shilpa Singh deposed that on 08.04.2019, she conducted postmortem examination on the body of deceased Mahajan and prepared detailed report Ex. PW10/A. She also stated that cause of death was as a result of ante-
mortem head injury produced by a sharp edged weapon. She also deposed that she received a yellow sealed envelope with the seal of GSL, SF SLDLH/4580/BIO/1097/19 and it was found containing a weapon and a pictorial diagram. On examination of weapon she gave her detailed opinion Ex. PW10/B and she also prepared report Ex. PW10/C. She categorically deposed that after examination of the weapon, she had opined that injuries mentioned in postmortem report Ex. PW10/A were possible with the given weapon. As regards, external injury no. 1 i.e. injury on the head, the internal examination of skull and the injuries of brain were possible with the given weapon. She enclosed the FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 12 of 40 weapon in white cotton sheet alongwith seal and handed it over to IO under her seal of 'SS'.
Police Witnesses-
13. PW-6 SI Birpal Singh i.e. Duty Officer deposed that on 08.04.2019 at about 4.31 am, duty constable HC Virender of GTB Hospital informed him regarding the death of Mahajan in the GTB Hospital who had been referred from LBS Hospital vide MLC NO.3575/19. He recorded the said information vide GD No. 7A Ex. PW6/A.
14. PW-7 Ct. Pawan Kumar i.e. Duty Officer also deposed that on 06.04.2019, at about 8.40 am he received a call regarding quarrel in front of plot no.265 near Paper Market behind PS Gazipur, Delhi and the caller stated that " ek aadmi ke sar me kulhari maar di injured hai". He filled Form-I i.e. Ex. PW7/A and dispatched it to console room for further transmission on net.
15. PW W/ASI Rajbala i.e. Duty Officer deposed that on 06.04.2019, she received a call from Police Control Room, East District that one person had sustained head injuries with axe on his head at the back side of PS Gazipur i.e. in front of plot No.265. She recorded said information vide DD entry No.14A i.e. Ex.PW23/A. She further deposed that on the same day at about 3 PM she registered FIR Ex. PW23/B on the basis of rukka which was sent by SI Amit Bhardwaj. She also made endorsement Ex. PW23/C on the rukka.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 13 of 40
16. PW-8 PW SI George Abraham deposed that on 06.05.2019 he had provided Form-I Ex.PW7/A of PCR call and the same was attested by ACP. He issued certificate u/s 65B of Indian Evidence Act Ex.PW8/A.
17. PW-9 SI Santosh Kumar deposed that on 06.04.2019, he alongwith crime team officials reached at the spot i.e. in front of plot no.265, Paper Market Gazipur, Delhi and inspected the crime scene at the instance of SI Amit Bhardwaj. On his direction, IO lifted blood sample, blood stained earth control and earth control from the spot. Photographer HC Ved Prakash took photographs of the spot. He prepared SOC report Ex.PW9/A.
18. PW-11 HC Virender proved the original duty roaster of PCR officials dated 06/07.04.2019 i.e. Ex. PW11/A.
19. PW-12 HC Ved Prakash deposed that on 06.04.2019, he alongwith crime team officials reached at the spot i.e. paper market Gazipur, Delhi and on the direction of HC Vishal, he took photographs of the spot i.e. Ex.PW12/A1 to Ex.PW12/A21. He also proved certificate u/s 65-B of Indian Evidence Act Ex.PW12/B.
20. PW-16 Ct. Naveen deposed that on 08.04.2019, he alongwith SI Amit Bhardwaj reached Mortuary of GTB Hospital and postmortem of deceased Mahajan was got conducted and dead body was handed over to relatives of deceased. Doctor handed over sealed parcel to the IO which was seized vide seizure memo Ex.PW16/A. FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 14 of 40
21. PW-17 HC Neeraj Kumar deposed that on 14.05.2019, as per the directions of IO he deposited sealed samples in FSL Rohini vide RC no. 66/21/19 Ex. PW14/C. He also handed over receipt to Incharge Malkhana and to the IO.
22. PW-21 ACP Mahesh Kumar deposed that on 16.05.2019, he alongwith Insp. Rajeev Vats went to the spot and he prepared the rough notes on the basis of which he prepared scaled site plan Ex. PW21/A.
23. PW-14 HC Arvind Kumar i.e. MHC (M) deposed that on 06.04.2019, SI Amit Bhardwaj deposited four parcels duly sealed with the seal of GP-04 PS Gazipur East Distt in malkhana and he made entry Ex. PW14/A in register No.19. On 08.04.2019, SI Amit Bhardwaj also deposited two more sealed parcels duly sealed with the seal of SS alongwith sample seal in malkhana and he made entry Ex. PW14/B to that effect in register no.19. On 14.05.2019, six sealed parcels alongwith sample seal were deposited in FSL Rohini by Ct. Neeraj vide RC no. 66/21/19 Ex.PW14/C. Ct. Neeraj also handed over acknowledgment Ex. PW14/D regarding the same. On 16.08.2019, he received FSL result alongwith six sealed parcels from Ct. KV Singh and he made entry to that effect and handed over the result to IO. On 20.08.2019, HC Vishal took the pullanda of kulhari to GTB Hospital vide RC No. 111/21/19 Ex. PW14/E and deposited the same in the hospital for obtaining subsequent opinion. On 24.08.2019, he received the pullanda of kulhari (axe) having seal of GTB Hospital alongwith subsequent opinion through Ct. Praveen.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 15 of 40 24. PW-13 HC Vishal Kumar deposed that on
06.04.2019, he reached the spot in front of shop no.265 paper market, Gazipur and met SI Amit Bhardwaj and Ct. Dinesh. He noticed blood on the spot. They came to know that injured Mahajan had been admitted in LBS Hospital. He remained at the spot to guard the same and SI Amit went to LBS Hospital. Crime team officials came to the spot and later on SI Amit also returned back to the spot. SI Amit prepared rukka and sent Ct. Dinesh to PS for registration of FIR. SI Amit lifted blood, soil without blood and blood stained soil in separate containers and sealed the same with the seal of PS Gazipur GP-04 East Distt. SI Amit also seized the said containers vide memos Ex.PW13/A, Ex.PW13/B and Ex.PW13/C. Complainant Krishnawati also came to the spot and IO prepared site plan at her instance. Ct. Dinesh came to the spot and handed over rukka and copy of FIR to the IO. IO recorded statement of Krishnawati. Thereafter, they returned back to PS and Ct. Prem produced accused Suresh before the IO. Thereafter, IO interrogated accused and arrested him vide memo Ex. PW13/D. IO also conducted personal search of accused and prepared memo Ex.PW13/E. IO recorded disclosure statement of accused Suresh i.e. Ex.PW13/F. Accused Suresh disclosed that he had thrown kulhari (axe) behind his jhuggi and he could get the same recovered. Accused Suresh led them behind his jhuggi and kulhari (axe) used in commission of offence was recovered from there at his instance. The recovered weapon of offence i.e. Kulhari (axe) was stained with blood. IO took the measurement of said kulhari and FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 16 of 40 prepared a pullanda which was sealed with the seal of PS Gazipur GP-04 East Distt. IO seized the same vide seizure memo Ex.PW13/G. Accused pointed out the place of incident vide memo Ex.PW13/H. He identified accused Suresh in the court and also identified the case properties i.e. one kulhari (axe) Ex. P2, road materials Ex.P3 & Ex.P4 and gauze cloth piece alongwith cotton wool swab Ex.P5.
25. PW-15 Ct. Dinesh deposed that on 06.04.2019 on receipt of DD no.14-A by SI Amit Bhardwaj, he alongwith SI Amit Bhardwaj went to the spot i.e. in front of shop no. 265 Paper Market, Gazipur and found blood had spilled there and public persons were also present at the spot. They came to know that injured had been taken to hospital, but no eye witness was found there. Thereafter, he alongwith HC Vishal remained at the spot and SI Amit went to LBS Hospital. Crime team officials came to the spot.
Later on, SI Amit also returned back to the spot and prepared rukka and sent him to PS for the registration of FIR. He went to PS and got the FIR registered. After registration of FIR, he returned back to the spot and handed over the rukka and copy of FIR to IO. IO handed over copy of FIR to complainant Krishnawati and recorded her statement u/s 161 Cr.P.C. Thereafter, they returned to PS and Ct. Prem produced accused Suresh before the IO. IO interrogated accused and arrested him vide arrest memo Ex.PW13/D and also conducted his personal search vide memo Ex.PW13/E. IO also recorded disclosure statement Ex.PW13/F of accused. Accused disclosed that he had FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 17 of 40 thrown the kulhari (axe) behind his jhuggi and he could get the same recovered. Thereafter, accused led them behind his jhuggi and he got the kulhari (axe) recovered which was used in commission of offence by accused. IO seized the said weapon of offence vide seizure memo Ex.PW13/G. Accused also pointed out the place of incident vide memo Ex.PW13/H. He identified accused Suresh and case property i.e. kulhari (axe) Ex.P2.
26. PW-18 HC Prem deposed that on 06.04.2019 at about 10:00 am, R-84 car/PCR came to PS and accused Suresh was brought to PS by HC Zafar. HC Zafar handed over custody of accused to him. Thereafter, he handed over custody of accused to IO.
27. PW-22 ASI Jafar Hussain deposed that on 06.04.2019 at about 8.43 am, he received call that one person had sustained injuries with axe (kulhari) on his headin front of plot no. 265. He reached at the spot and came to know that injured had been taken to hospital. Public persons handed over custody of accused to him by stating that he was the person who had hit the victim Mahajan on the head with the kulkhari. They brought accused Suresh to PS and his custody was handed over to Ct. Prem. He also identified accused Suresh in the court.
28. PW-19 ASI Rajeshwar Rao deposed that on 14.12.2022, IO Rinku Singh telephonically received secret information that accused Suresh wanted in this case could be arrested, if raid was conducted in Dehradun, Uttrakhand. The said information was communicated to senior officers and HC Rinku also lodged DD no. 42 A in this regard. Thereafter, he FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 18 of 40 alongwith HC Rinku Singh reached Dehradun at about 07.00 pm. Secret informer informed HC Rinku that accused was present near Dehradun Railway Station. Thereafter on identification of secret informer they apprehended accused Suresh. HC Rinku arrested accused Suresh vide arrest memo Ex.PW19/A. Thereafter, they came back to Delhi. HC Rinku also lodged arrival entry vide DD No. 5A dated 15.12.2022 Ex.PW19/B. Information qua arrest of accused was also given to concerned police post. Accused Suresh was declared proclaimed offender vide order dated 01.09.2022 Ex.PW19/C. IO also prepared kalandra u/s 41.1(C) Cr.PC Ex.PW19/D. He also signed personal search memo Ex.PW19/E of accused. He also identified accused Suresh in the court.
29. PW-20 HC Rinku Singh deposed that on 14.12.2022, he received secret information that accused Suresh wanted in FIR No. 96/2019, PS Gazipur could be arrested, if raid was conducted in Dehradun, Uttrakhand. He lodged DD No. 42 A in this regard and he alongwith ASI Rajeshwar reached Dehradun through private vehicle. Secret informer informed him that accused was present near Dehradun Railway Station. On the identification of secret informer they apprehended accused Suresh. He arrested accused vide arrest memo Ex.PW19/A. He also conducted formal search of accused vide memo Ex.PW19/E. Thereafter, they came back to Delhi and also lodged arrival entry vide DD No. 5A dated 15.12.2022 Ex.PW19/B. Accused was declared proclaimed offender vide order dated 01.09.2022 Ex.PW19/C. He also prepared kalandra FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 19 of 40 u/s 41.1(C) Cr.PC Ex.PW19/D. He identified accused Suresh in the court.
Evidence of Investigating Officers-
30. PW-23 SI Amit Bhardwaj i.e. 1st IO deposed that on 06.04.2019, on receipt of DD No. 14-A regarding quarrel at shop no.265, Paper Market, Gazipur, he alongwith Ct. Dinesh went to the spot. He came to know that injured had already been taken to LBS Hospital. He left HC Vishal and Ct. Dinesh to safeguard the spot and himself went to LBS hospital. In LBS Hospital, he obtained MLC of injured Ex.PW5/A and came to know that injured had been shifted to GTB Hospital. He went to GTB hospital and met injured Mahajan and wife of injured Mahajan namely Krishnawati. He recorded statement of Ms. Krishnawati Ex.PW2/A and thereafter he went to the spot and prepared rukka Ex. PW23/A. He handed over the rukka/tehrir to Ct. Dinesh and sent him to PS for registration of FIR. Thereafter, he sealed the earth control, earth control with blood and blood in gauze from the spot and seized the same vide seizure memos Ex. PW13/A, Ex.PW13/B & Ex.PW13/C respectively.
Subsequently, Smt. Krishnawati came to the spot and he prepared site plan Ex. PW2/B. In the meanwhile, Ct. Dinesh also returned to the spot and handed over copy of FIR and original rukka to him. He recorded statement of complainant and returned back to PS. In police station Ct. Prem produced accused. He interrogated accused Suresh and arrested him vide memo ExPW13/D. He also conducted personal search FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 20 of 40 of accused vide memo Ex.PW13/E. He recorded disclosure statement Ex. PW13/F of accused. Thereafter, accused Suresh led them to the backside of his jhuggi and got the Axe/Kulhari recovered. He seized the said axe/ kulhari vide seizure memo Ex.PW13/G. Accused Suresh also pointed out the place of incident and he prepared pointing out memo Ex.PW13/H. Then they returned to PS and he deposited the case property in Malkhana of PS Gazipur.
He further deposed that on 08.04.2019, DD entry was received from GTB hospital regarding death of injured Mahajan and the same was marked to him. He alongwith Ct. Naveen went to GTB hospital and he made a request for postmortem of deceased Mahajan i.e. Ex. PW23/B. He also recorded statements of Hablal and Tagai i.e. Ex. PW3/A and Ex.PW4/A regarding identification of dead body of deceased. He also prepared death report of deceased Mahajan i.e. Ex. PW23/C. After postmortem examination, the doctor handed over blood in gauze, sealed clothes and sample seal to him and he seized the same vide memo Ex.PW16/A. He recorded statement of witnesses and section 302 was added in the present case and the case file was handed over to MHCR on the direction of SHO.
He correctly identified accused Suresh in the court and also identified case properties i.e. Axe/Kulhari Ex.P2, empty pullanda in which clothes of deceased were handed over to him by doctor i.e. Ex.23/P1. He identified the remaining case FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 21 of 40 properties i.e. earth control / road material Ex.P3 & P4 and blood in gauze piece alongwith cotton wool swab Ex.P5.
31. PW-24 Insp. Rajiv Kumar Vats deposed that on 02.05.2019, further investigation of the present case was marked to him. He collected postmortem examination report of deceased from GTB Hospital. He sent exhibits to FSL through Ct. Neeraj. He got the scaled site plan i.e. Ex. PW21/A prepared. He moved application Ex. PW24/A and obtained duty roaster of PCR Van Ex. PW11/A. He recorded statement of PCR I/C Van who had brought accused Suresh to PS from the spot. Upon receiving FSL result, he sent a letter to autopsy surgeon for rendering opinion regarding use of weapon of offence. He received the opinions of autopsy surgeon i.e. Ex. PW10/B and Ex. PW10/C respectively. He also correctly identified accused Suresh in the court.
Admission/ Denial of Documents u/s 294 Cr. PC:
32. Accused Suresh vide his statement u/s 294 Cr. PC dated 31.07.2019 admitted FSL report no. DLH/ 4580/ BIO/ 1097/2019 i.e. Ex. PA.
Statement of Accused U/s 313 Cr. PC:
33. In his statement recorded under section 313 Cr.P.C accused denied all the incriminating evidence. He took a plea that he has been falsely implicated in this case due to previous enmity with family of deceased. He further stated that complainant party wanted to evict him and his family members from their jhuggi. Accused opted not to lead defence evidence.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 22 of 40 Arguments:
34. Ld. Addl. PP for the State has vehemently argued that the allegations against the accused have been proved beyond reasonable doubt. Prosecution evidence is completely reliable.
Hence, the accused may be convicted of the offences charged against him.
35. On the other hand, ld. defence counsel argued that accused has been falsely implicated. The case of prosecution is based only on the deposition of PW-2 Krishnawati. Her testimony suffers from several contradictions and improvements. The said witness had also made false allegations regarding involvement of parents of accused which were found to be incorrect. There is no corroborating evidence to deposition of Smt. Krishnawati as PW Vikran Singh was not the eye witness. The finger print impressions of accused were not found on the alleged weapon of offence. The prosecution version regarding recovery of weapon of offence is also highly doubtful because prosecution has alleged that after getting arrested accused Suresh made a disclosure statement and recovery of axe was effected from an open place behind his jhuggi, however, PW Krishnawati in her deposition stated that accused was apprehended on the spot alongwith axe which was handed over to police.
Ld. defence counsel further argued that there is delay in registration of FIR as the incident allegedly took place at about 8:40 AM and FIR was registered after 3 PM. As per IO SI Amit, no eye witness was found at the spot, whereas, PW-2 Krishnawati specifically named 4/5 present at the spot. Thus, FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 23 of 40 the entire version of recovery of weapon of offence is highly doubtful. Hence, he argued that accused may be acquitted.
36. I have heard the final arguments advanced by ld. Addl. Public Prosecutor for the State as well as by ld. defence counsels. I have also gone through the evidence on record very carefully.
Appreciation of Evidence vis-a-vis Allegations of Commission of Offences by Accused:
37. In the present case, in order to prove the guilt of accused, prosecution was under obligation to establish that on 06.04.2019 at around 8 am in front of shop no. C-265, Paper Market, Gazipur, Delhi accused Suresh gave blow of axe on the head of deceased Mahajan which resulted into his death on 08.04.2019.
38. Section 101 of Indian Evidence Act 1872 mandates that the burden of proving existence of any fact lies on the party which desires that a court should give a judgment on the basis of existence of the said facts.
39. The Hon'ble Supreme Court of India in "Dr. S.L.Goswami Vs. State of MP" 1972 A.I.R (SC) 716 :1972 (2) SCR 948 : 1972 Cri. L.J.511 : 1972 (3) S.C.C.22 reiterated that in a criminal trial the burden of proving its case always rests on prosecution and the prosecution cannot claim benefit of weakness of the defence of accused in order to shift the burden of proof on the accused.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 24 of 40
40. In order to discharge the aforementioned burden, the prosecution examined PW-2 Krishnawati. As per the case of prosecution PW-2 Krishnawati wife of deceased is the eye- witness of the incident and therefore, the prosecution relied heavily on her testimony.
41. PW-2 Krishnawati categorically deposed that on 06.04.2019 at about 8 AM she was present at her home alongwith her husband and she saw the entire incident whereby accused Suresh gave a blow of axe on the head of her husband.
42. As far as the place of incident being opposite to house of complainant is concerned, the prosecution has proved the scaled site plan of place of incident i.e. Ex. PW21/A. PW-2 Krishnawati also deposed that she had pointed out the place of incident to the police officer and the unscaled site plan Ex. PW2/B was prepared at her instance. The perusal of both the site plans i.e. Ex. PW21/A and Ex. PW2/B shows that place of incident was on the road in front of house of the complainant as well as deceased. PW-21 ACP Mahesh Kumar i.e. Draftsman who had prepared the scaled site plan Ex. PW21/A was cross- examined at length and even the complainant was cross- examined by ld. defence counsel, but nothing material came out in their cross-examinations which could create doubt qua the correctness of both the aforementioned site plans. Rather in the cross-examination of complainant no suggestion was given to her vis-a-vis the place of incident being elsewhere. Hence, the FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 25 of 40 prosecution has successfully proved that the incident took place on the road which was near the house of complainant.
43. As regards the time of incident is concerned, the prosecution has proved the PCR form Ex. PW7/A. It shows that information about the incident was given to police at about 8:40 AM by a person namely Vikrant Singh. The said witness i.e. PW-1 Vikrant Singh deposed that the incident took place on the morning of 06.04.2019. In addition, the perusal of MLC of deceased Ex. PW-5/A shows that he was examined LBS Hospital at 9 AM. The aforesaid documents also corroborate the oral deposition of PW Krishnawati that the incident took place on the morning of 06.04.2019 at about 8 AM. Therefore, the presence of PW-2 Krishnawati at her house in the early hours of the day is quite natural. Thus, her testimony to the effect that she was present outside her jhuggi at the time of incident appears to be natural and probable. Hence, prosecution has also established the fact that PW Krishnawati was present at the spot at the time of incident.
44. It has to be noted that the medical evidence in the form of MLC of deceased Mahajan Ex. PW5/A as well as the postmortem report Ex. PW10/A also substantiates the oral deposition of the complainant Smt. Krishnawati. The MLC Ex. PW5/A shows that the deceased had a lacerated wound over parietal area of the size i.e. 7x2x2 cm approximately. As per postmortem examination report of deceased Mahajan i.e. Ex.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 26 of 40
PW10/A, the cause of his death was due to shock as a result of antemortem head injury produced by sharp edged weapon. Argument - Material Improvements:
45. Now, coming to the defence arguments vis-a-vis reliability of the deposition of Smt. Krishnawati, it has to be underlined that the main argument of ld. defence counsel was that PW-2 Krishnawati tried to implicate the parents of accused, but the said allegations were found to be false during the investigation itself and therefore her deposition is marred with material contradictions and is unreliable.
46. In the aforementioned context of the argument of defence, at the outset it is necessary to make a note of the fact that in her original statement Ex. PW2/A PW-2 Krishnawati categorically stated that accused Suresh came to the spot and gave a blow of axe on the head of her husband due to which he sustained injuries and was taken to LBS Hospital by her and their relative namely Raju. In her examination in chief, she categorically reiterated the said allegations.
47. As per contents of chargesheet, the complainant Krishnawati was not satisfied with the investigation being conducted vis-a-vis involvement of Smt. Nankarna and Sh. Bifai i.e. parents of accused Suresh and she made a complaint dated 17.04.2019 to Commission of Police which has been proved on record as Ex. PW2/C. In the said complaint, she alleged that mother of accused had handed over the axe to accused and his FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 27 of 40 father was urging him to hit deceased with the axe. However, as per chargesheet the IO found the said allegations i.e. vis-a-vis involvement of aforementioned Smt. Nankarna and Sh. Bifai to be incorrect and therefore the said persons were placed in column no. 12 of the chargesheet. In the chargesheet, it is specified that the complainant Krishnawati had made reference of three more persons namely Kamal, Lal Babu and Pushkar and she alleged that they had also witnessed the incident. However, during investigation it was found that Kamal was not the eye witness as his jhuggi was far away from the place of incident and as per him he had only caught accused from the other side of park upon hearing noise of public and he had handed over accused Suresh to PCR officials. The IO also concluded that statement of complainant Krishnawati and other purported eye witness appear to be improvements for implicating the family members of accused.
48. The aforementioned public persons were not mentioned as witnesses for prosecution in the final chargesheet and accordingly they were never summoned by the prosecution. Therefore, it has to be said that truthfulness of the aforementioned allegations never culminated into definite finding or conclusion. However, as the case may be, it is necessary to keep in mind that even if the aforementioned allegations are considered to be improvements of the original FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 28 of 40 version, the said improvements are vis-a-vis additional role played by two more persons.
49. It is the settled proposition of law that the legal maxin "falsus in uno falsus in omnibus" does not apply in India and it is the duty of the court to separate chaff from the grain. It is also trite that minor discrepancies / contradictions cannot be the sole reason to discredit the testimonies of witnesses which are otherwise reliable.
50. In Brahm Swaroop & Anr. V. State of U.P.; 2011 Cri.L.J. 306 (SC), it was held that, "It is a settled legal proposition that while appreciating the evidence of a witness, minor discrepancies on trivial matters, which do not affect the core of the prosecution ‟s case, may not prompt the Court to reject the evidence in its entirety. Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness. As the mental capabilities of a human being FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 29 of 40 cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in the statements of witnesses."
51. In State of Punjab Vs. Jagir Singh, AIR 1973 SC 2407 and Lehna Vs. State of Haryana, 2002 (3) SCC 76, the Hon'ble Supreme Court held that, "In essence prayer is to apply the principle of "falsus in uno falsus in omnibus." This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of co-accused persons, his conviction can be maintained. It is the duty of court to separate grain from chaff. When chaff can be separated from grain, it would be opened to the court to prove guilt of other accused persons. Falsity of a particular material witn ess or material particular would not ruin it from beginning to end."
52. Thus, in my considered opinion the subsequent allegations of complainant Krishnawati that Smt. Nankarna and Sh. Bifai had incited / urged / assisted accused Suresh in the commission of murder of her husband do not make her deposition doubtful vis-a-vis the role of accused Suresh in committing the offence or the manner in which he had committed the offence of causing injury to Mahajan. Argument - Interested Witness:
53. It has also been argued that PW-2 Krishnawati being wife of deceased Mahajan is an interested witness and her deposition should not be accepted. However, in my considered FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 30 of 40 opinion the evidence of wife of deceased who happened to witness the incident cannot be discarded solely because she was related to deceased. Rather on the contrary, it is difficult to believe that wife of deceased would falsely implicate a person in the murder of her husband and will thereby gave a clean chit to the actual offender of crime.
54. In Dalip Singh and Ors Vs. The State of Punjab, AIR 1953 SC 364, it has been held that, "A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is a personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge alongwith the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
55. Further the Hon'ble Supreme Court in Pulicheria Nagaraju @ Nagaraja Reddy Vs. State of Andhra Pradesh AIR 2006 SC 3010 while dealing with the reliability of interested witnesses who are relatives, observed that, "It is well settled that evidence of witness cannot be discarded merely on the ground that he is either partisan or interested or close relative to the FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 31 of 40 deceased, if it is otherwise found to be trustworthy and credible." Also in Bhagwan Jagannath Markad v. State of Maharashtra (2016) 10 SCC 537, it was held that, "A witness being a close relative is not a ground enough to reject his testimony. Mechanical rejection of an even "partisan" or "interested" witness may lead to failure of justice. The principle of "falsus in uno, falsus in omnibus" is not one of general application."
56. Therefore, in my considered opinion testimony of PW Krishnawati cannot be rejected on the ground that she being the family member of deceased was an interested witness. Argument - PW Krishnawati Being Sole Eye Witness:
57. It has been argued that the testimony of PW-2 Krishnawati cannot be relied upon as she is the sole eye witness of the case of prosecution, but I am not inclined to accept the aforementioned argument. It is the settled proposition of law that it is not the quantity, but quality of evidence which is relevant for adjudication.
58. In Anil Phukan v. State of Assam, (1993) 3 SCC 282 : JT 1993 (2) SC 290, the Court observed; "Indeed, conviction can be based on the testimony of a single eye witness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone."
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 32 of 40
59. In State of Punjab Vs. Jagir Singh AIR 1973 SC 2407, the Hon'ble Supreme Court had also held that, "A criminal trial is not like a fairy tale wherein one is free to give flight to one's imagination and fantasy. It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged. Crime is an event in real life and is the product of interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures."
60. Thus, I do not find force in the aforesaid argument of ld. Defence counsel.
Argument - Doubtful Recovery of Weapon of Offence i.e. Axe:
61. It has been argued that recovery of axe was planted on accused Suresh. In order to appreciate this set of argument, it will be necessary to reiterate that as per prosecution version accused Suresh was apprehended from the spot by ASI Jafar i.e. PCR official and he brought accused to police station Gazipur and handed over his custody to Ct. Prem.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 33 of 40 62. The prosecution has examined both the aforementioned police officials as PW-22 and PW-18
respectively. PW-22 ASI Jafar categorically deposed that on 06.04.2019 at about 8:43 AM he received information about the incident and he reached at the spot and public persons handed over accused Suresh to him by telling him that he had hit an axe on the head of victim. Thereafter, he brought the accused to police station and handed over his custody to Ct. Prem. PW-18 HC Prem also deposed that on the said day i.e. 06.04.2019 at about 10 AM, HC Jafar brought accused Suresh to police station and handed over his custody to him. IO /PW-23 SI Amit Bharadwaj, PW-13 HC Vishal and PW-15 Ct. Dinesh also deposed that Ct. Prem had handed over custody of accused Suresh to IO SI Amit Bharadwaj when they came back to police station. All these witnesses categorically deposed that accused was not having any axe with him.
63. PW-23 SI Amit Bharadwaj, PW-13 HC Vishal and PW-15 Ct. Dinesh deposed that accused Suresh made a disclosure which was recorded as Ex. PW13/F and consequent to it the recovery of axe was effected from a place behind his jhuggi. These witnesses proved the seizure memo of said axe Ex. PW13/G. PW-2 Smt. Krishnwati also identified the said axe Ex. P2 and stated that it was the same weapon with which injuries were caused to her husband by accused Suresh.
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 34 of 40
64. At the same time, PW-2 Smt. Krishnawati also deposed that after the incident person namely Kamal had chased the accused and then Kamal apprehended him and the axe was seized from accused Suresh. Hence, the evidence of prosecution reflects two different theories vis-a-vis recovery of weapon of offence from accused. However, at the same time there is a common thread running between both the aforementioned hypothesis (vis-a-vis recovery of axe) which is the fact that all the witnesses have stated that the axe used in commission of offence was recovered from accused and the only difference is the manner and place of recovery of axe from accused Suresh.
65. In light of aforementioned facts, perusal of statements of PW-22 ASI Jafar Hussain, PW-13 HC Vishal and PW-15 Ct. Dinesh shows that they deposed that the injured Mahajan had been taken to hospital by her family members even before they reached at the spot. Therefore, as per all the aforementioned police officials the injured had already been taken to hospital before arrival of PCR at the spot which means that PW-2 Krishnawati had left the spot even before the arrival of PCR officials. In such circumstances when PW-2 Krishnawati had already left the scene before the arrival of police, her testimony qua manner of recovery of weapon of offence from accused cannot be given more weightage.
66. The prosecution witnesses i.e IO SI Amit Bharadwaj, HC Vishal and Ct. Dinesh have categorically FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 35 of 40 deposed that the axe was recovered at the instance of accused pursuance to his disclosure statement Ex. PW13/F. The prosecution has also proved the seizure memo of the axe Ex. PW13/G. Although, no public witness was joined at the time of recovery of axe, but SI Amit Bharadwaj explained the same by categorically saying that the neighbours refused to join the investigation despite his requests.
67. The prosecution produced the FSL report Ex. PA, but as per said report blood could not be detected from the seized axe. Hence, the said report neither supports the case of prosecution nor it rules out the possibility of accused hitting the victim with the same axe. However, PW-10 Dr. Shilpa Singh proved her opinion Ex. PW10/D i.e. to the effect that the injuries resulting in death of deceased Mahajan could have been caused with axe Ex. P2.
68. Thus, the prosecution has proved that recovery of axe Ex. P2 was effected from accused Suresh, however, even otherwise it is the settled proposition of law that non-recovery of weapon of offence is not always fatal to the case of prosecution and it cannot be a sole ground to discard the oral testimony of eye-witness which is otherwise reliable. In Lakshmi Vs. State reported in (2002) 7 SCC 198, Hon'ble Supreme Court observed that it is not an inflexible rule that weapon of assault must be recovered and the Hon'ble Supreme Court did not accept as a general and broad proposition of law that in case of non-
FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 36 of 40
recovery of the weapon of assault, the whole prosecution case gets torpedoed. Also in Munna vs. State of M.P. AIR 2003 SC 3346: 2003 AIR SCW 4355: 2003 CrI.L.J. 4440: 2003 (10) SCC 599: 2004 SCC (Cri) 944.", it was held that, "Doubtful nature of recovery of the fatal gun cannot render the ocular evidence unreliable." Further in Krishna Mochi & Ors. Vs. State of Bihar [(2002) 6 SCC 81], Hon'ble Supreme Court of India held that, "It has been then submitted on behalf of the appellants that nothing incriminating could be recovered from them, which goes to show that they had no complicity with the crime. In my view, recovery of no incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when their participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found by me to be unimpeachable."
Therefore, from all the angles, the prosecution has successfully proved that PW-2 Krishnawati was present at the scene of crime at the time of incident and she had witnessed the incident. In view of the oral deposition of prosecution witnesses including Smt. Krishnawati and the documentary evidence including medical evidence such as the MLC and PMR of deceased, the prosecution has proved beyond reasonable doubt that accused Suresh had caused injury on the head of Mahajan with an axe which resulted into his death. Thus, prosecution has FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 37 of 40 proved beyond reasonable doubt that accused Suresh had committed murder of Mahajan.
Appreciation of Evidence Vis-a-Vis Offince u/s 174-A IPC:
69. The accused has also been charged for commission of offence u/s 174-A IPC. At first, it will be expedient to reproduce the aforesaid provision. It is as follows:
"Section 174-IPC: Non-appearance in response to a proclamation under section 82 of Act 2 of 1974- Whoever fails to appear at the specified place and the specified time as required by a proclamation published under section (1) of section 82 of the Code of Criminal Procedure, 1973, shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine."
70. As per case of prosecution, accused Suresh was declared proclaimed offender vide order dated 01.09.2022. Perusal of ordersheet dated 08.12.2021 shows that accused Suresh was released on interim bail during Covid-19 on personal bond in light of the guidelines of Hon'ble HPC. Further, perusal of record shows that subsequently, accused did not appear in the court and accordingly, process u/s 82 Cr. PC was issued against him. The said process was received back as duly executed with report dated 07.05.2022 Ex. P4. Since accused could not be found, therefore, the process server pasted the copies of process u/s 82 Cr. PC on the address of accused and also executed the process by way of announcement in the area. The copy of FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 38 of 40 process u/s 82 Cr. PC vis-a-vis accused was also pasted on the notice board of the court.
71. As per judicial record, accused Suresh did not appear in the court within 30 days from the date of service of process and finally he was declared proclaimed offender vide order dated 01.09.2022.
72. PW-19 ASI Rajeshwar and PW-20 HC Rinku Singh deposed that accused Suresh was arrested on 14.12.2022. They have also proved arrest memo of accused Ex. PW-19/A and the kalandara under Section 41.1 (C) Cr.PC Ex. PW-19/B. There is nothing in the cross-examination of these witnesses to show that the process was not executed as per law.
73. In any case the defence has not raised any plea by giving suggestion that either of above-mentioned accused had appeared in the court or his address was incorrect. Thus, in view of the aforementioned evidence proved on record, it has to be concluded that prosecution has successfully established that accused Suresh deliberately evaded his appearance and did not appear before the court despite issuance of process u/s 82 Cr. PC. In such circumstances, accused Suresh is liable to be convicted for commission of offence u/s 174-A IPC as well. Conclusion:
74. Thus, in view of the aforementioned discussion, it has to be concluded that the prosecution has successfully proved beyond reasonable doubt that the accused Suresh had committed murder of deceased Mahajan and he deliberately evaded his FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 39 of 40 appearance and did not appear before the court despite issuance of process u/s 82 Cr. PC. Accordingly, accused Suresh is convicted for commission of offences u/s 302 IPC & 174-A IPC respectively.
75. Copy of this judgment be given free of cost to the convict Suresh.
Announced in open Court on 25.03.2025 (Sushant Changotra) ASJ (FTC) / East KKD Court/ Delhi Digitally signed by SUSHANT SUSHANT CHANGOTRA CHANGOTRA Date: 2025.03.25 15:23:36 +0530 FIR No. 96/19 PS Gazipur State Vs . Suresh Page no. 40 of 40