Delhi District Court
State vs . Amit Kumar on 23 December, 2014
IN THE COURT OF SH. SANJAY KUMAR AGGARWAL
ADDITIONAL SESSIONS JUDGEIII: NORTH DISTRICT
ROHINI COURTS: DELHI
SC No. 590/12
FIR No. 380/11
P.S. Aman Vihar
U/s 302/34 IPC
ID No. 02404R0058432012
State Vs. Amit Kumar
S/o Sh. Raghuvir Singh
R/o H.No. N65, Prem NagarII
Delhi.
2. Ashu
S/o Sh. Raghuvir Singh
R/o H.No. N65, Prem NagarII
Delhi.
3. Ajay
S/o Sh. Raghuvir Singh
R/o H.No. N65, Prem NagarII
Delhi.
Date of institution : 12.03.2012
Date of reserving the judgment : 20.12.2014
Date of judgment : 23.12.2014
JUDGMENT
1. The accused persons are facing charges u/s 302/34 IPC that on 17.12.11 at about 9.40 pm, street in front of H. No. 65 Prem State Vs. Amit Etc. FIR No. 380/11 Page No.1/37 Nagar II, Delhi, all the accused persons formed common intention and committed murder of Jitender by stabbing him by scissor.
2. The story behind framing of charges is that on 17.12.2011, the PW24 SI Kishan Lal No. D4655 alongwith PW23/Ct. Rakesh were on emergency duty. At about 10 p.m, the PW24/SI Kishan Lal received DD No. 58 A Ex. PW8/A regarding quarrel at N19, 40 Foota Road, Bikaner Sweet, Prem NagarII, Delhi. He alongwith Pw23/Ct Rakesh reached at the spot and came to know that injured Jitender was removed to the hospital by his friend PW2/Giri Raj and his brother PW1/Karan. No eye witness was found at the spot. The PW24 SI Kishan Lal left PW23/Ct. Rakesh at the spot for guarding the place of occurrence. He reached at the hospital where Jitender was found admitted vide MLC and was declared dead. The PW1/Karan/ brother of deceased Jitender met the PW24/SI Kishan Lal in the hospital and he told him State Vs. Amit Etc. FIR No. 380/11 Page No.2/37 that the PW1/Karan had seen the incident. The PW24/SI Kishan Lal recorded statement of PW1/Karan narrated the entire incident.
3. In complaint Ex. PW1/A made to the police by the PW1/Karan it was stated that on 16.12.11 the complainant/PW1 Karan received a missed call on his mobile number 9911706759 from mobile number 8744901037. Again on 17.12.2011, at about 9.40 pm, PW1/complainant Karan again received a missed call from the same number. When PW1/Complainant Karan called back on that number, this number was found to be that of accused Ashu who started spitting venoms as soon as he picked up the phone and challenged PW1 Karan "tu neeche aa" (you come down). When PW1/complainant Karan came down the street, accused Amit, Ashu and Ajay started beating him with fists and blows. On hearing the commotion, brother of PW1/Karan namely Jitender came to his rescue and on seeing him, accused Amit went inside his sewing factory and State Vs. Amit Etc. FIR No. 380/11 Page No.3/37 brought one scissor. Accused Ajay and Ashu left PW1/complainant Karan and caught the deceased Jitender exhorting "pehle issi ka kaam tamam karte hai" (let us finish him first). When PW1/complainant tried to save him, accused Amit brandished scissor at the chest of Jitender and attacked him with the same consequently Jitender fell down. All the accused persons fled away from the spot and PW1/complainant Karan took his brother Jitender to Sanjay Gandhi Memorial on motorcycle along with PW2 Giri Raj where doctor declared him dead.
4. In the meantime, PW28/IO Inspector Anil Kumar and PW20 HC Pankaj with other staff reached at the hospital. The PW24 SI Kishan Lal briefed him about the facts of this case. The PW24/SI Kishan Lal made endorsement Ex. PW24/A on the rukka after preparing it.
5. The crime team and photographer were called at the spot and request was made in the rukka for sending the special State Vs. Amit Etc. FIR No. 380/11 Page No.4/37 messenger with regard to information of registration of case to the senior officials and Ld. concerned MM. The PW24/SI Kishan Lal handed over the rukka to PW20/HC Pankaj at 11.45 p.m. for registration of the FIR. The PW24 SI Kishan Lal alongwith PW28/inspector Anil, other staff and PW1/complainant Karan reached at the spot where PW23/Ct. Rakesh was present. Crime mobile team also reached at the spot with photographer. The PW28/Inspector Anil Kumar conducted further investigation. In the meantime, the PW20/HC Pankaj came back at the spot alongwith copy of FIR and original rukka and handed over the same to PW28/IO Inspector Anil. At the instance of PW1/complainant Karan, PW28/IO Inspector Anil Kumar prepared site plan. Crime mobile team inspected the place of occurrence i.e. gali in front of H. No. 65, Prem NagarII, Delhi and the photographer took the photographs from different angles at the instance of I/C Crime Team and IO. PW28/IO Inspector Anil recorded the State Vs. Amit Etc. FIR No. 380/11 Page No.5/37 statement of I/C crime team and photographer after taking the report of Crime mobile team. The PW2/Giri Raj also met PW24/SI Kishan Lal who is also stated to have accompanied PW1/Karan for removing the deceased Jitender to hospital. The PW28/IO Inspector Anil took the blood stained clothes of PW2 Giri Raj in possession. The PW2/Giri Raj produced his light grey colour pant, red and blue printed shirt, brown inner, white baniyan and blue underwear which were blood stained. The blood stained clothes of PW2/Giri Raj were sealed in a pullanda with the seal of AKG and were seized vide seizure memo Ex. PW24/B. The postmortem of the deceased was got done. The dead body of Jitender was identified by PW1/Karan vide his statement Ex. PW1/B.
6. The autopsy surgeon handed over clothes of the deceased, blood in gauze piece in envelope and sample seal of SGMH Mortuary, Mangol Puri, Delhi which were seized vide seizure memo Ex. PW24/C. State Vs. Amit Etc. FIR No. 380/11 Page No.6/37
7. Thereafter, the PW24 SI and Inspector PW28/Anil Kumar went for the search of accused persons and the accused Amit was arrested vide arrest memo Ex. PW24/D. The personal search of the accused Amit was conducted vide memo Ex. PW24/E. The accused Amit made disclosure statement Ex. PW24/F. The accused Amit in his disclosure statement stated that he can produce the scissor which he had hidden in his house and pursuant to his disclosure statement, he led the police team to H.No. N65, Prem NagarII, Delhi in a room where they used to do the work of stitching and got recovered one scissor i.e. weapon of offence. The accused Amit produced the said blood stained scissor to the PW28/IO Inspector Anil Kumar. The PW28/IO Inspector Anil Kumar measured and prepared the sketch of scissor vide memo Ex. PW24/G. The said blood stained scissor was wrapped in a pullanda which was sealed with the seal of AKG. The PW28/IO Inspector Anil prepared the seizure memo Ex. PW24/H of the said scissor. The PW28/ State Vs. Amit Etc. FIR No. 380/11 Page No.7/37 IO Inspector Anil prepared the site plan of the place of recovery Ex. PW24/J. Thereafter the accused Ashu was arrested vide memo Ex. PW24/K. The personal search of accused Ashu was conducted vide memo Ex. PW24/L. The accused Ashu made disclosure statement Ex. PW24/M The accused Ashu led the police team to the place of occurrence and pointed out the same. The accused Ashu is also stated to be known as Vijay.
8. Again on 22.01.12 the PW28/IO Inspector Anil alongwith PW25/SI Sumit, PW26/HC Anil and other staff left for the search of accused Ajay. On the basis of secret information, the accused Ajay was arrested vide arrest memo Ex.PW25/A and his personal search was conducted vide memo Ex.PW25/B. The accused Ajay made disclosure statement Ex.PW25/C The accused Ajay lead the police team to the place of occurrence and the PW28/IO Inspector Anil prepared the pointing out memo Ex.PW25/D. State Vs. Amit Etc. FIR No. 380/11 Page No.8/37
9. Prima facie case u/s 302 / 34 IPC was made out against the accused Amit, Ashu and Ajay. All accused did not plead guilty to the charges and claimed trial.
10. In order to substantiate its claim, prosecution produced 28 witnesses. The accused persons did not lead any evidence in defence. The statement of accused persons u/s 313 Cr PC were recorded after recording of the statement of the prosecution witnesses.
11. Ld. counsel for the accused persons vehemently argued that in fact in this case the eye witness namely PW1 Karan was manipulated by the prosecution and he is a fictitious witness. It was asserted that the PW1 Karan was not present at the spot and only PW2 Giriraj who is not an eye witness, had picked and removed the deceased to the hospital. It has been highlighted that in order to implicate the accused persons, the prosecution has manipulated a story in which PW1 Karan has been assigned the role of eye witness. It was urged that prior to sending of rukka, the name of the socalled eye witness State Vs. Amit Etc. FIR No. 380/11 Page No.9/37 PW1 Karan doesn't figure anywhere, and his name is also absent in the me dical records of the deceased, more particularly in the MLC. It was also asserted that neither the PW1 Karan nor the PW2 Giriraj could depose as to the name of the owner of motorcycle on which the deceased was removed to the hospital. If the clothes of PW1 Karan had got blood stains, why the same was not sent for FSL examination. Ld. counsel further stated that only the clothes of PW2 Giri Raj had been sent for FSL and the prosecution could not furnish any explanation as to why the clothes of the PW1 Karan were not sent for forensic examination, further the cumulative statements of formal witnesses goes to say that PW1 Karan was examined at the hospital, but the prosecution is silent as to why when the PW1 Karan was present in the hospital and was inquired into, why his name does not figure in the medical records of deceased. The site plan also does not contain the signatures of the eye witness and it does not State Vs. Amit Etc. FIR No. 380/11 Page No.10/37 exhibit the place from where the PW1 Karan and PW2 Giriraj picked the deceased and removed to the hospital. It was also argued that there is contradiction between the statement of PW1Karan and PW2 Giriaj wherein PW1 Karan had claimed that he with the help of PW2 Giriraj took the deceased to SGM hospital from the place where he was lying after the incident, whereas PW2 Giriaj deposed that firstly he was taken to 40 feet road which is 100meters away from the spot in his lap and thereafter he was taken to hospital on the motorcycle.
12. As per Ld. counsel for the accused, no genuine efforts were made to join the public witnesses at the time of recovery of scissor. The Ld. counsel made me go through the testimonies of PW26 HC Anil Kumar and also PW24 SI Kishan Lal to show that even the witnesses have deposed the recovery of the scissor from different places and there is no coherence in the testimonies of the witnesses. None of the workers of the factory could be made witnesses by the IO. The call details of State Vs. Amit Etc. FIR No. 380/11 Page No.11/37 the witnesses were also not collected which itself shows that the witnesses, more particularly PW1 Karan is a planted witness. It was further submitted that the motorcycle was not seized and further that the provisions of the section 302 IPC are not attracted. Ld. Counsel requested for acquittal of all the accused.
13. Per contra, Ld. APP argued that the prosecution has proved its case beyond the shadow of doubts as all the accused persons are named in the FIR and were previously known to the accused persons. The scissor with which the offience was committed in furtherance of common intention by all the accused was recovered at the instance of the accused pursuant to the disclosure statement and the said scissor contained blood stains. It was also urged that the blood stains on the scissor matched with the blood of the deceased vide FSL report and the cut marks on the clothes of the deceased were also opined to be possible by the use of recovered State Vs. Amit Etc. FIR No. 380/11 Page No.12/37 scissor. It was further argued that all the accused persons have been duly identified by all the formal as well as by the public witnesses and no defence evidence has been produced by the accused persons to show that they have been falsely implicated. The Ld. APP advocated for conviction of all the accused by saying that it was a murder committed by the accused persons in furtherance of common intention for which the prosecution has already produced the eye witness. It was highlighted that the testimony of the eye witness has to be believed in the circumstances when he has deposed in a clear and cogent manner and also gaining corroboration from the other formal as well as public witnesses.
14. I have heard the parties at length and have carefully perused the record.
15. My findings on the issues involved are as under:
16. First of all it was the bounden duty of the prosecution to prove that the death of the deceased was homicidal. State Vs. Amit Etc. FIR No. 380/11 Page No.13/37
17. In order to substantiate its claim, the prosecution produced PW 7 Dr. Munish Wadhawan, Specialist Forensic Medicine, SGM Hospital, Mangol Puri, Delhi wherein he deposed that he conducted the postmortem on the body of the deceased and on postmortem examination, rigor mortis was found present all over the body. External Injuries were opined as - One incised penetrating wound of size 2x.7 cms, wedge shape with one angle acute and other rounded obliquely placed on front of left side of chest 9 cms below left nipple and 7 cms from mid line. On exploration underlying skin, subcutaneous tissues, muscles cleanly cut. Injury track was running backwards, medially and upwards with extensive blood extravasation in th surrounding tissues, passing through 5 left intercoastal space and Piercing anterior wall of left ventricle of heart. Total depth of wound was about 10 cms. The cause of death was opined as hemorrhagic shock as result of injury to heart caused by single edged sharp weapon. All injuries were State Vs. Amit Etc. FIR No. 380/11 Page No.14/37 antemortem in nature. The postmortem report was proved as Ex. PW7/A. From the bare reading of aforesaid injuries, it is clear that the death of the deceased was homicidal.
18. The dead body was identified by his brother/PW1 Karan vide memo Ex. PW 1/B to be that of his brother Jitender. Accordingly, it is clear that it was the deceased Jitender who was the victim of homicide.
19. First of all the main plank of arguments advanced by the Ld. Counsel for the accused was that the PW1/Karan/brother of deceased is not an eye witness and have been manipulated by the police to deliberately make a false eye witness in this case in order to get conviction. His main arguments were that the PW1/Karan was not present at the spot at the time of incident and nor was at the hospital. His stress during the arguments was that had PW1/Karan been present in the hospital, the MLC and other medical record must have contained his name, but in fact it contains the name of PW2 Giri Raj who was not State Vs. Amit Etc. FIR No. 380/11 Page No.15/37 an eye witness to the same.
In this regard, after going through the testimony of PW1/Karan and PW2 Giri Raj, the arguments of the Ld. Counsel for the accused does not sound good and fit to say that the PW1/Karan was not present at the spot. The PW1 Karan had narrated the entire story to the police in his statement Ex. PW1/A on 17.12.11 itself in which he narrated the details of the incident. The PW2 Giri Raj who is also stated to have removed the injured Jitender to hospital had also stated in his examination in chief that the PW2 Giri Raj had asked PW1 Karan to bring the motorcycle for removing the deceased to the hospital. The PW2 Giri Raj further deposed that PW1 Karan had told him at the spot that accused Amit had stabbed his brother with a scissor. In his cross examination also, the PW2 Giri Raj/public witness has specifically mentioned that there was no person present near the injured in the street except PW1 Karan The PW2 Giri Raj further deposed in his State Vs. Amit Etc. FIR No. 380/11 Page No.16/37 cross examination that he had stated to the police in his statement that PW1 Karan had told him that the deceased was stabbed with scissor by the accused Amit, but when he was confronted with his statement Ex. PW2/DA, it was found written in Ex. PW2/DA that on asking of PW2 Giri Raj, the PW1 Karan had told him as to the fact that deceased Jitender was stabbed with scissor by accused Amit. It was also mentioned by the PW2 Giri Raj in his cross examination that it was PW1 Karan who had arranged the motorcycle and the clothes of PW1/Karan were not stained with blood. On a specific suggestion being put by the Ld. Counsel for the defence, it was termed to be correct by PW2 Giri Raj that he had got admitted the injured in the hospital, but simultaneously, the PW2 Giri Raj immediately voluntarily stated that PW1/Karan was along with him and it was PW1 Karan who told the name of the injured to doctor in the hospital. The plea of the Ld. counsel that the name of the State Vs. Amit Etc. FIR No. 380/11 Page No.17/37 PW1 Karan does not figure in the MLC and that hence he was not in the hospital is not sustainable in view of the fact that the doctor is not required to incorporate the name of each and every fellow in the MLC who brings the deceased at the hospital. The PW2 Giri Raj had also expressed his inability to say as to who had disclosed the name of deceased Jitender to the doctor i.e. whether PW2 Giri Raj himself or PW1/Karan. The PW2 Giri Raj has also deposed as to the position of PW1 Karan on the motorcycle and stated that injured was facing the PW1 Karan and he was made in sitting position on support in between PW2 Giri Raj and PW1 Karan. Moreover, in the cross examination of PW2 Giri Raj the Ld. Counsel for all accused himself have admitted the presence of PW1 Karan in the hospital as when he had put a suggestion to the PW2, the answer of which was replied as "it is wrong to suggest that Karan was heavily drunk and therefore he was turned out from the hospital by the doctor", meaning thereby the very presence State Vs. Amit Etc. FIR No. 380/11 Page No.18/37 of the PW1 Karan in the hospital is not challenged by the Ld. Counsel for the accused persons. On one hand, it is claimed by the accused persons that PW1 Karan was not preset in the hospital as his name does not figure in medical records, but simultaneously his presence is not denied by the accused party by putting aforesaid suggestion to the PW2 Giri Raj.
20. The PW1 Karan/eye witness had reiterated the contents of his complaint Ex. PW1/A in his testimony on oath before this court and have narrated the incident in terms of his complaint to the effect that when he came down upon being challenged by the accused Ashu, all the three accused started beating him with fist and blows. Upon hearing the commotion when his brother/deceased came downstairs, the PW1/Karan was held by accused Ashu and Ajay. When deceased tried to save PW1 Karan, in the meantime, accused Amit exhorted other accused "pehle issi ka kaam tamam kar dete hai" (referring to deceased Jitender) and brought the tailoring scissor from his State Vs. Amit Etc. FIR No. 380/11 Page No.19/37 factory which was adjoining. Deceased was stabbed on the left side of chest with the tailoring scissor. At that time accused Ashu ad Amit had held the PW1/Karan.
21. Now I shall consider the plea of Ld. Counsel that initially in complaint Ex. PW1/A, it was highlighted that when the deceased came downstairs after hearing commotion to save PW1 Karan and when accused Amit brought scissor from the factory, the accused Ashu released PW1 Karan and caught hold of deceased, and when PW1 Karan tried to save the deceased, the accused Amit stabbed the scissor on the chest of the deceased, but while deposing before this court, the PW1 Karan has narrated otherwise that PW1 Karan was held by the accused Ashu and Ajay while the deceased was being stabbed by the accused Amit. Ld. Counsel had pointed out that there is material contradiction in between in original complaint Ex. PW1/A and his deposition before this court.
22. Having heard the Ld. Counsel on this point, I am of the State Vs. Amit Etc. FIR No. 380/11 Page No.20/37 considered opinion that these are the minor discrepancies which are bound to occur in the statement of the witnesses more particularly in the testimonies of the public witnesses. At the time of commotion or scuffle though our eye can retain and register the major and main role of the incident, but the public witness is not expected to depose on dotted lines. Though the PW1 Karan had mentioned in his complaint Ex. PW1/A that he was released at the time the deceased was attacked with scissor by all accused, but his deviation while deposing before this court that he was held by accused Ashu ad Ajay while the deceased ws being stabbed is very trivial in nature which can very well be ignored keeping in view the overall circumstances.
23. Moreover, the act was done in furtherance of common intention of all accused which is clear from the wordings used by accused Ajay and Ashu as mentioned in the complaint Ex. PW1/A that while the accused Amit had brought scissor, both the accused Ajay and Ashu released the PW1 Karan, but State Vs. Amit Etc. FIR No. 380/11 Page No.21/37 caught hold of deceased and exhorted "pehle isi ka kaam tamam kar dete hai" (First we should finish him) and while the deceased was trying to free himself from their clutches, in the meantime, the accused Amit stabbed him on his left side chest.
24. The Ld. counsel for the accused had also taken the plea that the PW1 Karan could not tell as to who was the owner of the motorcycle on which the deceased was removed to the hospital and that hence he was not present at the spot is also not convincing in view of the fact that at the time when your brother is being stabbed, one is not expected to first know as to who owned the motorcycle upon which the deceased was removed. Moreover, the PW2 Giri Raj had specifically mentioned the fact that the PW1 Karan had accompanied him and the deceased to the hospital. Therefore, the plea of the Ld. Counsel that the PW1 Karan was not present at the spot at the time of incident is not tenable.
State Vs. Amit Etc. FIR No. 380/11 Page No.22/37
25. The weapon of offence i.e scissor was also got recovered by the police vide seizure memo Ex. PW24/H in which the IO PW28/Inspector Anil, the PW24 Si Kishan Lal and the PW26 HC Anil had participated in the recovery proceedings. The PW24 SI Kishan Lal had specifically mentioned that pursuant to disclosure statement Ex. PW24/F, the accused Amit produced blood stained scissor to the IO who prepared the sketch of the same as Ex. PW24/G and the IO seized the same vide memo Ex. PW24/H. It was sealed after wrapping it in a piece of cloth. The PW28 Inspector Anil and PW26 HC Anil deposed on the same lines as that of PW24 SI Kishan Lal.
26. Ld. Counsel for the accused party had taken the plea that the scissor was not recovered at the instance of accused persons as the cloth in which the scissor was allegedly found wrapped was not sent to FSL and further that there is diversion in the depositions of different witnesses to the recovery of the scissor State Vs. Amit Etc. FIR No. 380/11 Page No.23/37 as to the place from where it was allegedly recovered from inside the room.
27. Having taken consideration of the plea of the Ld. Counsel, I do not find any merit in the plea that the cloth in which the scissor was found wrapped should have also been sent to FSL given the circumstance when the scissor itself was found stained with blood. The said scissor was recovered from a room at H. No. 65 Prem Nagar, Delhi where the accused Amit used to do stitching work. The plea of the Ld. Counsel that different witnesses to the recovery have deposed the different places of recovery inside the room can be ignored as being a minor discrepancy amongst the depositions of the witnesses to the recovery particularly in those circumstances when all the witnesses have mentioned the same house number from where the recovery of blood stained scissor was effected from the accused Amit. Moreover, genuine efforts were made by the IO to include the public witnesses at the time of recovery of the State Vs. Amit Etc. FIR No. 380/11 Page No.24/37 scissor as it has come in the cross examination of PW28/Inspector Anil that he had requested public persons to join the investigation at the time of recovery of scissor, but they refused. Accordingly, the prosecution has duly proved that the recovery of blood stained scissor was effected from accused Amit pursuant to his disclosure statement.
28. Now the question is as to whether the deceased was attacked with the same scissor as recovered by the police from one of the accused. To prove the same, the prosecution produced PW27 Dr. Manoj Dhingra, Incharge, Mortuary, Sanjay Gandhi Memorial Hospital, Mangol Puri, Delhi wherein he stated that On 18.12.11, he along with PW7/Dr. Munish Vadhawan conducted postmortem on the body of Jitender S/o Sh. Tej Pal, 18 yr old, Male. Body was brought by SHO Anil Kumar from Aman Vihar with alleged history of stab injury on 17.12.11. The detailed PM report was proved as Ex. PW7/A. The PW7 Dr. Muish Vadhawan and PW27 Dr. Manoj Dhingra State Vs. Amit Etc. FIR No. 380/11 Page No.25/37 received an application from PW28/SHO Aman Vihar on 25.01.12 with sealed parcel, with the seal of AKG. After opening the parcel, it contained scissor. Both the aforesaid doctors i.e. PW27 Dr. Manoj Dhingra & PW7 Dr. Munish Wadhawan gave opinion and made a diagram of the scissor on the back of the application which was proved as Ex. PW7/B. The report Ex. PW7/B of both the doctors on the back of the application of SHO PS Aman Vihar categorically goes to suggest injuries as mentioned in the postmortem report Ex. PW7/A is possible by the scissor or similar such type of weapon.
29. Further the clothes of the deceased which were handed over by the doctor to the IO were also examined by the FSL laboratory vide report Ex. PW28/F3 which specifically goes to suggest that cut mark on full sleeve shirts, cut mark on Tshirt, cut mark on inner wear and cut mark on jacket were examined physically and under magnification. The scissor was also State Vs. Amit Etc. FIR No. 380/11 Page No.26/37 examined. It was opined that the aforesaid cut marks could have been caused by the scissor sent to FSL. Accordingly, it is clear from the FSL report Ex. PW28/F3 that cut marks on the clothes of the deceased could have been caused by the recovered weapon of offence i.e. Scissor.
30. Moreover, the FSL result Ex. PW28/F1 suggests that the blood was detected on the clothes of PW2 Giri Raj who had taken the deceased to hospital. It has been opined by the FSL authorities by the aforesaid report that blood was detected on one shirt, one pant, one T shirt, one baniyaan and one underwear which were found contained in the sealed pullanda with the seal of AKG. It has also been opined by FSL vide report Ex. PW28/F1 that blood was also detected on the pair of scissors which was found wrapped by the FSL authorities in a cloth parcel sealed with the seal of SGMH Mortuary. The biology divisions FSL has also filed its report Ex. PW28/F2 wherein it has been opined that aforesaid clothes (of the PW2 State Vs. Amit Etc. FIR No. 380/11 Page No.27/37 Giri Raj which were recovered by the IO and were sealed with the seal of AKG) were found to contain "human B group"
blood. The pair of scissor also was found to contain the "human B group" blood. The clothes of the deceased which were contained in parcel 2 vide report Ex. PW28/F1 were also found to be containing blood and the corresponding report of the biology division of FSL Ex. PW28/F2 suggests that it was also found to contain human blood of "B group". Meaning thereby it is clear that by this scientific evidence, the story of prosecution got corroborated on the fact that PW2 Giri Raj removed the deceased to the hospital and that weapon of offence i.e. scissor was used in the episode.
31. The plea of the Ld counsel that the PW1/Karan was not present at the spot since his clothes might have also got blood stains and were not recovered is not tenable as there is every possibility that there may or may not have been blood stains on the clothes of the PW1/Karan. The PW1/Karan has State Vs. Amit Etc. FIR No. 380/11 Page No.28/37 admitted in cross examination carried on on 05.09.12 that some blood stains of the deceased came on his clothes while he was taken to hospital and the IO did not seize his clothes, but the PW2 Giri Raj in his cross examination has specifically mentioned the fact that the clothes of PW1/Karan were not stained with blood and further termed it to be wrong to suggest that PW1/Karan was not present at the spot and therefore his clothes did not get the blood stains. Therefore, even if the clothes of PW1/Karan were not sent to FSL, it does not lead to presumption that PW1/Karan was not present at the spot. The non seizure of the clothes of PW1/Karan can be termed an irregularity during investigation and does not affect the merits of the case.
32. The Ld. Counse for the accused party also drawn the attention of the court towards the timing at which the crime team reached at the spot. It was asserted that IO while sending rukka Ex. PW24/A at 11.45 pm had requested the Duty Officer State Vs. Amit Etc. FIR No. 380/11 Page No.29/37 to send the Crime Team at the spot whereas the report of the crime team Ex. PW18/A goes to suggest that the crime team had examined the spot on 17.12.11 between 11.25 pm to 11.55 pm. I have considered these contradictions raised by the Ld. Counsel for the accused party. The said contradictions are very meticulous in nature and are bound to happen during the investigation process. The difference of timings cannot be given much weight particularly in those circumstances when the difference in timings of sending rukka and examination of spot by crime team is very less. Accordingly the plea of Ld. Counsel that the investigation is faulty is rejected.
33. The PW3 had brought the call details of the mobile number 9911706759 of which there is a reference in the complaint Ex.PW1/A that a missed called was received on the aforesaid mobile from the mobile 8744901037 on 17.12.11 at about 9.40 pm and accordingly the complainant/PW1 Karan had called back on the said missed call. The call detail records brought State Vs. Amit Etc. FIR No. 380/11 Page No.30/37 by PW3 proved the fact that the prepaid connection no. 9911706759 was issued in the name of PW1/Karan Singh S/o Tej Pal Singh. The computer generated call detail record of phone number 9911706759 was proved as Ex. PW3/C. The PW3 also deposed that the prepaid connection no. 8744901037 was issued in the name of PW5/Ram Niwas S/o Sh. Dwarka. The computer generated call detail record of phone number 8744901037 was proved as Ex. PW3/F (in three pages). The certificate U/s 65B of Evidence Act for the genuinity and correctness of the computer generated/electronic record was also proved by PW3/Nodal Officer as Ex. PW3/G.
34. From the testimony of PW3/Amar Nath Singh, Nodal Officer, Idea Cellular, it is clear that the mobile phone no. 9911706759 and the mobile no. 8744901037 stands registered in the name of PW1 Karan Singh and the PW5 Ram Niwas respectively. The call details record proved by the aforesaid PW3 also goes State Vs. Amit Etc. FIR No. 380/11 Page No.31/37 to suggest that on 17.12.11 a call was made at 9.40 pm by the aforesaid mobile number 9911706759 owned by PW1 Karan Singh to the aforesaid phone number 8744901037 owned by PW5 Ram Niwas. Previously also on 16.12.2011 and 17.12.11, there is reference of exchange of calls between the aforesaid two numbers. Accordingly, it stands proved that a call was made from the aforesaid number 9911706759 to the mobile number 8744901037 on 17.12.11 at about 9.40 pm as detailed down in the complaint Ex. PW1/A.
35. Now the question is how the mobile number 8744901037 could come in the hands of the accused Ashu on 17.12.11 as in complaint Ex. PW1/A the allegations were levelled by PW1 Karan that when he called from his number 9911706759 to mobile number 8744901037, the said later phone was picked up by the accused Ashu. As per records, the accused Ashu is not the owner of said mobile number 8744901037 and in fact the owner of said mobile is PW5 Ram Niwas.
State Vs. Amit Etc. FIR No. 380/11 Page No.32/37
36. To prove the fact that the said mobile at the time of incident was with accused Ashu and that it was accused Ashu who had responded to the call of PW1 Karan, the prosecution produced PW5 Ram Niwas/owner of the mobile number 8744901037 wherein he stated that the said mobile number stands in his name, but his son PW4 Ajay used to use that mobile phone. Upon examination of PW4/Ajay S/o PW5 Ram Niwas, he deposed that on 16.12.11 when he was standing in the gali, the accused Ashu asked for his phone 8744901037 for making a call and he accordingly PW4 Ajay handed over the same to him. On 17.12.11, at about 9.009.30 am, accused Ashu had again taken his mobile phone to make a call. In his cross examination on a suggestion being put by Ld. Counsel, the PW4 Ajay termed it to be incorrect that he had never given his mobile phone to accused Ashu, but voluntarily said that he had given his mobile phone to accused Ashu for making call on 16.12.11 & 17.12.11 only.
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37. From the above testimony of PW4 Ajay and PW5 Ram Niwas, the prosecution has been able to prove the fact that on the day of incident i.e. 17.12.11, the mobile phone number 8744901037 was used by the accused Ashu at the time of incident when he responded to the call of PW1 Karan. The complaint Ex. PW1/A made by the PW1 Karan thus stands corroborated on this material particular.
38. Though, the Ld. Counsel for the accused during the cross examination had tried to give twist to the entire prosecution story by leveling allegations against the PW1 Karan and the deceased Jitender that both of them used to talk to the daughter "A" of PW5 Ram Niwas and the accused party had not committed the offence, but in fact it was a dispute between the family of PW5 Ram Niwas and the family of the deceased Jitender. However, on this issue, despite lengthy cross examination of PW1/Karan being done by Ld. Counsel, nothing fruitful could come out from the mouth of PW1 Karan State Vs. Amit Etc. FIR No. 380/11 Page No.34/37 in favour of the accused. Neither this fact raised by the accused party could be supported by PW5 Ram Niwas or PW4 Ajay who both are the brother and father of the girl "A". Accordingly, the theory propounded by the Ld. Counsel that in fact the deceased got injuries in the dispute between the family of PW5 Ram Niwas and that of deceased does not gain support from any quarter.
39. Now I shall deal with the motive aspect in the commission of the offence.
40. The PW1 Karan has specifically mentioned in his testimony on oath before this court that he and his deceased brother were working with the accused persons around two years ago for stitching the clothes. Both the PW1 Karan and his deceased brother left their work as they were not satisfied with the payments. There were quarrels also on the issue of payment between PW1 Karan, his deceased brother and the accused persons. During the cross examination of this witness by the State Vs. Amit Etc. FIR No. 380/11 Page No.35/37 Ld. Counsel for the accused persons, upon a suggestion it has been termed to be correct by the PW1 Karan that the accused Ashu, Amit and Ajay had given beatings to him because the PW1 Karan had demanded money from them. It was also voluntarily deposed by PW1 Karan that he had demanded his due money. It was termed to be incorrect by the PW1 Karan that on Ajay s/o Ram Niwas and accused Ashu had given him beatings as he and his deceased brother were teasing and giving calls to Ms. "A" on her phone despite warnings. Accordingly, the suggestion put up by Ld. Counsel for the accused to PW1 Karan itself goes to show that the accused Ashu, Amit and Ajay had given beatings even to PW1 Karan because he had demanded money from them. Thus, it is clear that while the PW1 Karan had left the job, certain money was due to be paid by the accused party to the PW1 Karan and the deceased and there was a dispute between the rival party over the payment of money which can very well be treated as the State Vs. Amit Etc. FIR No. 380/11 Page No.36/37 motive for the commission of the offence.
41. The PW1/Karan has already narrated the incident in a cogent and convincing manner. the sequence of events has already been established and proved by the prosecution. The testimonies of all prosecution witnesses are cogent, convincing and trustworthy. All witnesses are supporting each other on all material points. Hence, the prosecution has duly proved the charges u/s 302/34 IPC against accused Amit Kumar, Ashu and Ajay.
42. In these circumstances, since the prosecution has proved its case beyond any shadow of doubt, I convict the accused Amit Kumar, Ashu and Ajay u/s 302/34 IPC.
43. Let accused Amit Kumar, Ashu and Ajay be heard on the point of sentence.
Announced in the Open Court (Sanjay Kumar Aggarwal) On 23.12.2014 ASJIII(North District):Rohini: Delhi State Vs. Amit Etc. FIR No. 380/11 Page No.37/37