Delhi District Court
State vs . (1) Dharmender @ Shiv Kumar on 25 July, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NOTHWEST): ROHINI COURTS: DELHI
Session Case No. 33/2013
Unique Case ID No. 02404R0320172012
State Vs. (1) Dharmender @ Shiv Kumar
S/o Sh. Hari Singh
R/o EBlock, GhoriBaggi Wale,
Agar Nagar, Prem NagarIII, Delhi
(Convicted)
(2) Ravi Raj
S/o Sh. Uma Kant Rai
R/o House of Nanhe,
Near Jain Public School,
Bhagya Vihar, PS Aman Vihar,
Delhi
(Convicted)
(3) Gurcharan
S/o Late Sh. Asha Ram
R/o EBlock, GhoriBaggi Wale,
Agar Nagar, Prem NagarIII, Delhi
(Acquitted)
(4) Jai Singh
S/o Sh. Ram Chander
R/o C59, Gali No. 10,
Amar Colony, Kamruddin Nagar,
Nangloi, Delhi
(Convicted)
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 1
(5) Hari Ram
S/o Sh. Hari Singh
R/o EBlock, GhoriBaggi Wale,
Agar Nagar, Prem NagarIII, Delhi
(Convicted)
(6) Sunil Kumar
S/o Sh. Chander Singh
R/o Village Hidayat Pur,
Police Station Chand Hat,
Distt. Palwal,
Haryana
(Convicted)
(7) Ashok
S/o Sh. Raj Kishore
R/o Village Hathnara,
Police Station Sareni,
Distt. Rai Bareilly, UP
(Convicted)
FIR No.: 240/2012
Police Station: Aman Vihar
Under Section: 302/149 Indian Penal Code
Date of committal to session court: 27.11.2012
Date on which orders were reserved: 5.7.2014
Date on which judgment pronounced:5.7.2014
JUDGMENT:
(1) As per the allegations on the intervening night of 22/23.8.2012 at about 12:30 AM (midnight) within the premises of Casting Yard IJM St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 2 Infrastructure Ltd. near Railway Station, Mundka, Delhi all the accused namely Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Gurucharan, Jai Singh, Hari Ram, Sunil Kumar and Ashok being the member of unlawful assembly and in prosecution of the common object of the said unlawful assembly, committed the murder of an unknown person by intentionally killing him and thus committed an offence punishable under Section 302 read with 149 Indian Penal Code.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 23.08.2012, at about 6:40 AM DD No. 6A was received at Police Station Amav Vihar pursuant to which Inspector Tilak Chand alongwith SI Karambir reached at Sanjay Gandhi Hospital where one person was found admitted in the hospital and was declared 'brought dead'. It was informed that the said person was got admitted by HC Krishan Kumar of PCR. The Investigating Officer inspected the dead body and found that there were injury marks all over the body, on the right arm, a name Shakti Rita was engraved and there was a mark of 'OM' on the upper palm of the right hand of the dead body. The Investigating Officer then contacted the Incharge of the PCR who had brought the body in the hospital and asked him about the place from where the injured was taken to the hospital and on coming to know the spot, the Investigating Officer along with other staff reached the spot i.e. Mundka Railway Station, North Side, east corner of the platform where PCR St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 3 Incharge was found present who showed him the place from where he took the injured to the hospital. The Crime Team was called and the the scene of crime was got inspected and photographed. The Investigating Officer thereafter contacted the Manager of Casting Yard and asked him about the employees who were on night duty on which the Manager handed over list of the employees who were on night duty. The electrician namely Dev Dutt Sharma who was on night duty was called and his statement was recorded wherein he informed the police that during the intervening night of 2223.8.2012 five security guards namely Ravi Rai, Hari Ram, Jai Singh, Gurcharan, Dharmender and two field officers Ashok and Sunil were on duty and had given beatings to a person whom they claimed to be a thief.
On the basis of the statement of Dev Dutt Sharma the present case was registered. Thereafter various exhibits were lifted from the spot. (3) Efforts were made to establish the identity of the deceased. Hue and Cry Notice regarding UIDB was prepared and the information was loaded on Zip Net and was sent to CRO and NCRB etc. but no clue found to establish the identity of the deceased. On 25.08.2012 pursuant to a secret information about the accused Ravi Rai was arrested from Bhagya Vihar, Village Rani Khera near Jain Public School. At the instance of accused Ravi Rai, the accused Gurcharan, Dharamender @ Shiv Kumar and Jai Singh were arrested from Prem Nagar and Nangloi. Pursuant to his disclosure statement the accused Ravi Rai got recovered his dress of Swastik Security blood stained from his room where he was residing, which St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 4 shirt was taken into possession. The accused Gurcharan, Dharmender and Jai Singh also got recovered their clothes having blood stains which were then seized. The accused Ravi Rai got recovered one blood stained danda, an iron pipe and one broken danda from the back side of security post situated at Casting Yard which were lying behind the security post, which were also taken into possession. On 28.08.2012 the accused Hari Ram was arrested from the service road of A Block of Agar Nagar, Prem Nagar and pursuant to his disclosure statement the accused Hari Ram got recovered his blood stained dress of Swastik Security, which was taken into possession. On 6.9.2012 the accused Sunil was arrested from outside the office of Swastik Security Agency, East of Kailash and pursuant to his disclosure statement the accused Sunil got recovered his blood stained clothes which he was wearing at the time of incident, which clothes were seized. On 25.10.2012 the accused Ashok was arrested from his native village i.e. Village Hathnasa, Rai Bareilly. After completion of investigations charge sheet was filed against the accused persons. CHARGES:
(4) Charges under Sections 302 r/w 149 Indian Penal Code were settled against the accused persons to which they pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 5 proved by them are hereby put in a tabulated form as under:
List of witnesses:
Sr. PW No. Name of the witness Details
No.
1. PW1 HC Rajesh Kumar Police Witness - DD Writer
2. PW2 HC Ajit Singh Police Witness - Duty Officer
3. PW3 Insp. Vijay Kumar Police Witness who had sent the exhibits to
Kataria FSL and filed the charge sheet
4. PW4 Ms. Sulochna Public Witness - Employer of the accused
persons
5. PW5 Dev Dutt Sharma Public Witness - Complainant on whose
statement the FIR has been registered
6. PW6 Pradeep Kumar Sarkar Public Witness - Deputy Manger of Casting
Yard
7. PW7 HC Surender Singh Police Witness - MHCM
8. PW8 Ct. Om Prakash Police Witness who had deposited the
exhibits with FSL
9. PW9 Ct. Aman Police Witness - Special Messenger
10. PW10 Ct. Pradeep Police Witness - Computer Operator
11. PW11 Lady Ct. Sunita Police Witness - PCR Official
12. PW12 HC Bhagat Police Witness - DD Writer
13. PW13 HC Krishan Police Witness - PCR Van Incharge
14. PW14 Ct. Kamal Police Witness - Crime Team Photographer
15. PW15 ASI Ajeet Police Witness - Crime Team Incharge
16. PW16 SI Manohar Lal Police Witness - Draftsman
17. PW17 Dr. Sanjay Kumar Jain Witness from SGM Hospital who has proved
the MLC of the deceased
18. PW18 HC Shiv Pal Police Witness who had visited the spot of
incident
19. PW19 Rajesh Public Witness who gave his ID to accused
Ravi Rai
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 6
20. PW20 Chander Shekhar Nodal Officer from Bharti Airtel Ltd.
21. PW21 Vinod Kumar Nodal Officer from MTNL
22. PW22 Dharamvir Sharma Public Witness - Elder brother of the
complainant Dev Dutt Sharma
23. PW23 Seema Public Witness who had allegedly given her
SIM to the accused Hari Ram
24. PW24 SI Shri Bhagwan Police Witness who has proved the
apprehension and arrest of accused Ashok
Kumar
25. PW25 Jitender Singh Public Witness - Landlord of accused Ravi
Rai
26. PW26 Sanjay Sharma Public Witness who had allegedly given his
SIM to the accused Ashok Kumar
27. PW27 Ram Dulare Public Witness - Landlord of accused Ashok
Kumar
28. PW28 SI Sumit Kumar Police Witness who has proved the
apprehension and arrest of accused Sunil
Kumar
29. PW29 SI Somveer Police Witness who has proved the
apprehension and arrest of accused Ravi Rai,
Gurcharan, Dharmender and Jai Singh
30. PW30 SI Karamveer Police Witness who has proved the
apprehension and arrest of accused Hari Ram
31. PW31 HC Jawahar Singh Police Witness who had joined the
Investigations with Inspector Tilak Chand
32. PW32 Dr. Manoj Dhingra Autopsy Surgeon
33. PW33 Inspector Tilak Chand Police Witness - Investigating Officer
34. PW34 Dr. Brijesh Witness from SGM Hospital who has proved
the MLC of the deceased
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 7
List of documents:
Sr. Exhibit No. Details of documents Proved By
No.
1. PW1/A DD No.8A HC Rajesh Kumar
2. PW1/B DD No.9A
3. PW1/C DD No.11A
4. PW1/D DD No.12A
5. PW2/A FIR HC Ajit Singh
6. PW2/B Endorsement on Rukka
7. PW4/A ID Proof with Photograph Smt. Sulochna
8. PW4/B Copy of Contract Sundriyal
9. PW4/C Seizure memo of Contract Book
10. PW5/A Seizure memo of blood earth Dev Dutt Sharma
11. PW5/B Seizure memo of blood stained earth
12. PW5/C Seizure memo of Blood stained grass
earth
13. PW5/D Seizure memo of Blood stained earth
and earth control
14. PW5/E Seizure memo of Blood stained floor
and earth control from the first aid room
15. PW5/F Seizure memo of Blood stained road
pieces
16. PW5/G Seizure memo of blood stains
17. PW5/H Seizure memo of danda and iron pipe
18. PW5/J Seizure memo of Attendance Register
19. PW5/PX1 Statement of Dev Dutt dated 23.8.2012
20. PW5/PX2 Statement of Dev Dutt dated 25.8.2012
21. PW/6/A Pointing out memo by accused Pradeep Kumar
Dharmender
22. PW6/B Pointing out memo by accused Jai
Singh
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 8
23. PW6/C Pointing out memo by accused
Gurcharan
24. PW6/D Pointing out memo by accused Ravi Rai
25. PW6/E Pointing out memo by accused Sunil
Kumar
26. PW6/PX1 Statement of Pradeep Kumar dated Pradeep Kumar
23.8.2012
27. PW6/PX2 Statement of Pradeep Kumar dated
25.8.2012
28. PW6/PX3 Statement of Pradeep Kumar dated
7.9.2012
29. PW7/1 Affidavit of evidence of HC Surender HC Surender
30. PW7/A Copy of Register No.19 vide mud no.
605/12
31. PW7/B Copy of Register No.19 vide mud no.
1607/12
32. PW7/C Copy of Register No.19 vide mud no.
1633/12
33. PW7/D Copy of Register No.19 vide mud no.
1650/12
34. PW7/E Copy of RC No.212/21/12
35. PW7/F Copy of RC No.211/21/12
36. PW7/G FSL Receipt
37. PW8/1 Affidavit of evidence of Ct. Om Parkash Ct. Om Parkash
38. PW9/1 Affidavit of evidence of Ct. Aman Ct. Aman
39. PW10/1 Affidavit of evidence of Ct. Pardeep Ct. Pardeep
40. PW11/1 Affidavit of evidence of L/Ct. Sunita L/Ct. Sunita
41. PW11/A PCR Form
42. PW12/1 Affidavit of evidence of HC Ram HC Ram Bhagat
Bhagat
43. PW12/A DD No.7A
44. PW13/1 Affidavit of evidence of HC Krishan HC Krishan
45. PW14/1 Affidavit of evidence of Ct. Kamal Ct. Kamal
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 9
46. PW14/A1 to Photographs of the spot of incident and A30 of dead body
47. PW14/B Negatives
48. PW15/1 Affidavit of evidence of ASI Ajeet ASI Ajeet
49. PW15/A Crime team Report
50. PW16/1 Affidavit of evidence of SI Manohar Lal SI Manohar Lal
51. PW16/A Site Plan
52. PW17/A MLC No.14626 Dr. Sanjay Kumar Jain
53. PW18/A Affidavit of evidence of HC Shiv Pal
54. PW20/A Customer Application Form in respect Chander Shekhar of mobile No. 8800138157
55. PW20/B Copy of Driving Licence
56. PW20/C Call Detail Record
57. PW20/D Customer Application Form in respect of mobile No. 8826162441
58. PW20/E Copy of Voter Card
59. PW20/F Call Detail Record
60. PW20/G Customer Application Form in respect of mobile No. 9958693180
61. PW20/H Copy of Voter Card
62. PW20/I Call Detail Record
63. PW20/J Cell ID Chart
64. PW20/K Certificate U/s 65B
65. PW21/A Customer Application Form in respect Vinod Kumar of mobile No. 9868210280
66. PW21/B Copy of Id Card
67. PW21/C Call Detail Record
68. PW21/D Cell ID Chart
69. PW21/E Customer Application Form in respect of mobile No. 9968495013
70. PW21/F Copy of DL
71. PW21/G Call Detail Record St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 10
72. PW21/H Cell ID Chart
73. PW21/I Certificate U/s 65B
74. PW24/A Arrest memo of accused Ashok SI Shri Bhagwan
75. PW24/B Personal search memo
76. PW24/C Disclosure statement
77. PW24/D Pointing out memo of the place of incident
78. PW28/A Arrest memo of accused Sunil Kumar SI Sumit Kumar
79. PW28/B Personal search memo
80. PW28/C Disclosure statement
81. PW28/D Seizure memo of Shirt and Pant of accused Sunil Kumar
82. PW28/E Seizure memo of exhibits of the deceased
83. PW28/F Receipt of Electric Crematorium
84. PW29/A Arrest memo of accused Ravi Rai SI Somveer
85. PW29/B Personal search memo of accused Ravi Rai
86. PW29/C Disclosure statement of accused Ravi Rai
87. PW29/D1 Arrest memo of accused Gurcharan
88. PW29/D2 Arrest memo of accused Dharmender
89. PW29/D3 Arrest memo of accused Jai Singh
90. PW29/D4 Personal search memo of Gurcharan
91. PW29/D5 Personal search memo of accused Dharmender
92. PW29/D6 Personal search memo of accused Jai Singh
93. PW29/D7 Disclosure statement of accused Gurcharan
94. PW29/D8 Disclosure statement of accused Dharmender St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 11
95. PW30/A DD No.6PP SI Karamveer
96. PW30/B Palm and Finger print of Deceased
97. PW30/C Arrest memo of Hari Ram
98. PW30/D Personal search memo of Hari Ram
99. PW30/E Disclosure statement of Hari Ram
100. PW30/E1 Pointing out memo of place of incident
101. PW30/F Seizure memo of clothes of the accused Hari Ram
102. PW32/A Postmortem Report Dr. Manoj Dhingra
103. PW32/B Subsequent Opinion
104. PW33/A Rukka Inspector Tilak Chand
105. PW33/B Rough Site Plan (Outside Casting Yard)
106. PW33/C Rough Site Plan (Inside Casting Yard)
107. PW33/D Seizure memo of visiting card recovered from the possession of accused Sunil
108. PW33/E Brief Facts
109. PW33/E1 Form 25:35 (1) (b)
110. PW33/F to Hue and Cry Notice 33/F1
111. PW33/G Biological Report
112. PW33/H Serological Report EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Thirty Four witnesses as under:
Public Witnesses:
(7) PW4 Smt. Sulochna Sundriyal has deposed that she is residing at DG2, 216D, Vikaspuri, Delhi along with her family and is running a St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 12 Security Agency under the name and style of Swastik Detective and Security Services from 187, GK House, Room No. 211, Sant Nagar, East of Kailash, New Delhi65. According to the witness, she is having 100110 guards and she made an agreement with IJM Infrastructure on 01.02.2012 for giving services of eleven guards to them and the validity period for the contract was from 01.02.2012 to 31.01.2013. She has further deposed that she had provided eleven guards namely Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram and others and two supervisors namely Ashok and Sunil to that company on 01.02.2012. She has testified that from 01.02.2012 till 21.08.2012 one gunman Nepal Singh was also put on duty but on account of the complaint received from the company regarding theft, she removed the gunman from 21.08.2012 and from 22.08.2012 Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram were posted as guards in the company. She has further deposed that Sunil Kumar was the Security Supervisory Officer who used to go and check their duties on day and night. According to the witness, on the intervening night of 21/22.08.2012 both Ashok Kumar and Sunil Kumar went for Supervisory Duty to IJM infrastructure. She has also deposed that in the morning, it was the police who informed her about the incident. The witness has testified that she handed over to them the ID proof of Ashok along with photograph of Ashok which is Ex.PW4/A and copy of the contract/work order of her firm with the company which is St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 13 Ex.PW4/B (running into five pages) and the Investigating Officer seized the copy of the contract/work order vide memo Ex.PW4/C after which her statement was recorded. She has correctly identified the accused Ashok in the Court. This witness has not been crossexamined by the Ld. Defnece Counsel despite being granted an opportunity in this regard. (8) PW5 Sh. Devdutt Sharma is stated to be an eye witness to the incident. He has deposed that he is employed as an electrician at IJM Infrastructure Ltd. and for the last more than one year he had been posted at Casting Yard of the company adjacent to Mundka Railway Station. He has further deposed that in the yard apart from the Incharge Pardeep Sarkar, the security guards from the Swastik Security Agency, Nehru Place remained present. According to the witness, during the day fourfive security guards remained present whereas at night sixseven security guards remained present in the Casting Yard for security of the goods kept in the yard and during the day the other staff of the company also stays in the yard. He has further deposed that on 2223.08.2012 he was on duty at Casting Yard from 8PM to 8AM and he came to the company office at about 8 PM on 22.08.2012. The witness has testified that at that time five guards of the Swastik Security Agency were present along with two fields officers were on duty and the five security guards namely Ravi Rai, Hari Ram, Jai Singh, Gurcharan and Dharmender and field officers Ashok and Sunil were on duty. He has also deposed that on that day there was no electricity in the yard on account of the fact that generator was not working on which St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 14 he went towards the generator at around 1212:30 AM and tried to start the same. He has further deposed that at that time it was drizzling but the generator did not start. According to him, Gurcharan accompanied him and they tried to put oil in the generator to start the same but while they were coming back from generator room towards the office room, they heard loud voices from a distance of about 100150 meters and shouts of chor chor on which he along with Gurcharan reached the spot from where they heard the voices and when they reached there, there was no body else except the four guards Dharmender @ Shiv Kumar, Ravi, Jai Singh, Hari Ram and two field officers namely Sunil Kumar and Ashok whereas Gurcharan was with him. He has also deposed that when he asked them as what had happened, they said, there was a thief who had run away "chor tha aur bhag gaya". According to the witness, thereafter he returned back to his office and it was raining outside, so he went to his office and slept there. He has further deposed that at about 6:00 AM on the next morning, he woke up and tried to talk to his Manager and asked him to call some mechanic to repair the generator but he (Manager) did not pick up the phone after which he returned to his house at about 6:307AM. He has also deposed that when he reached at his house, he received a telephone call from his office/ yard and he was called back on which he returned back to his office at about 12:30 PM where police met him. He has testified that he came to know that a murder had taken place in a yard but he does not know St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 15 anything else.
(9) Since the witness was resiling from his previous statement given to the police, hence the Ld. Addl. PP for the State put leading questions to the witness about the manner of the incident wherein he has admitted that the document already Ex.PW2/B bears his signatures at point A but has denied the suggestion that he put his signatures at point A after reading his statement and has voluntarily explained that police obtained his signatures on a blank paper. He has denied the suggestion that when he reached the yard, then he had seen four security guards and two field officers with a thin boy and the security guards and field officers were beating him by saying that he was a thief and the said boy was wearing a half sleeves shirt and shouting for the help. He has also denied the suggestion that he intervened and saved him from the said beatings and told the security guard and the field officer to kept the said boy in the room and if he was a thief then he be handed over to the police. The witness has also denied the suggestion that thereafter there was peace and the said boy was also seated there after which he went back to his office. He has denied that he again went to the guard post where he heard the noise that the said boy run away from there and thereafter he returned back to his office and slept there. He has also denied the suggestion that when he reached at the company office at about 12:30 PM then police showed the photograph of the above said boy to him and he identified the same as the boy who was beaten by the security guards and field officers of the yard and then he St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 16 came to know that he was declared dead. The witness has also denied the suggestion that the said boy was given beatings by the field officers and security guards of the Casting Yard and the blood was scattered on the road of the yards at different places. He has admitted that the police lifted the blood earth and the earth control from the eastern side of the railway station name board and kept the same in a plastic container and sealed the same and seized vide Ex.PW5/A. The witness has further admitted that Police also lifted the blood stained earth and the earth control from the different place near the railway station name board and kept the same in a plastic container and sealed the same and seized the same vide Ex.PW5/B. He has also admitted that police also lifted the blood stained grass, earth and earth control from the east corner of the metal streets near the boundary wall and kept the same in a plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/C. He has further admitted that Police also lifted the blood stained earth and the earth control from the place near the bushes south side of the Sanitary post and kept the same in the plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/D. According to him, Police also lifted the blood stained floor and earth control from the first aid room of the yard and kept the same in the plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/E. He has also deposed that the Police also lifted the blood stained Road Pieces and Earth Control from the western side of the Sanitary post and kept the same in the plastic container and sealed the same and St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 17 seized the same vide seizure memo Ex.PW5/F. The witness has also deposed that police lifted blood stained road pieces and earth control from the road at east side of the first aid room and kept the same in the plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/G. He has denied the suggestion that on 25.08.2012 police brought the security guard namely Ravi Rai, Gurcharan, Dharmender @ Shiv Kumar, Jai Singh at JJM Yard gate in his presence and in the presence of deputy Manager Pardeep Satkar and he identified them as the persons who in the intervening night of 22/23.08.2012 had given beatings to the deceased along with Hari Ram guard and field officer Sunil and Ashok. The witness has also denied the suggestion that thereafter the accused Ravi Rai pointed out the place of incident JJM Casting Yard and pointed out the place were the blood of the deceased had fallen at that spot or at railway station gate near the railway station gate post. He has denied that Ravi Rai also pointed out the place where they had given beating to the deceased and also pointed out the Casting Yard boundary where the deceased committed trespassing. He has further denied that the accused Ravi Rai also pointed out the road near sanitary post where he pointed out the iron pipes or at his instance one iron pipe and one bamboo stick having blood stains were recovered. He has further denied the suggestion that the accused Ravi Rai disclosed that he along with his associates gave beating to the deceased by the said weapons or caused his death or that the police sealed the iron pipe, bamboo stick in two pieces in the three separate St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 18 pullandas and sealed the same with the seal of TC. He has further denied the suggestion that accused Gurcharan, Dharmender @ Shiv Kumar and Jai Singh also pointed out the places where the blood was found and where they gave beatings to the deceased or that one pair of slippers were seized by the police in his presence or that one attendance register of security guard from the security post were seized by the police. The witness has also denied the suggestion that on 28.08.2012 accused Hari Ram was brought at their company when he identified him as the person who also gave beating to the deceased or that he (Hari Ram) also pointed out the places where the blood was found. He has admitted that Ex.PW5/H, Ex.PW5/I and Ex.PW5/J bear his signature. The witness has also denied the suggestion that these documents were prepared in his presence and after reading the same he put his signatures on the same and has voluntarily explained that police obtained his signatures on blank papers. He has identified all the accused persons namely Dharmender, Ravi Rai, Gurcharan, Jai Singh, Hari Ram, Sunil Kumar and Ashok in the court and who were employed in the company as security guards. (10) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that police made inquiries from him but did not record his statement. He has denied the suggestion that he had stated to the police that four security guards and two field officers were holding a thin person and they were giving beatings to him and saying that he was a thief who was wearing a half sleeves shirt and shouting for the help or that he saved St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 19 him from them or that due to his interference they stopped beating or that he told to the security guard and field officers that if he was a thief then he be handed over to the police. However, when confronted with his statement Ex.PW2/A the above facts were found so recorded. He has further denied the suggestion that he had stated to the police that after 30 minutes when he again went to the guard post and he heard the noise of guards that the said boy ran away; that at about 6 AM he tried to contact to manager Pardeep Kumar Sarkar to inform him about the incident of night but he did not pick the phone. However, when confronted with his statement Ex.PW2/A the above fact was found so recorded. The witness has also denied the suggestion that at about 12:30 PM when he was called at the Casting Yard the police recorded his statement and he identified a thin boy in the photograph as the boy who was given beating by the above said security guard and field officials and then he came to know that he had expired. However, when confronted with his statement Ex.PW2/A the above fact was found so recorded. He has denied the suggestion that police recorded his statement on 23.08.2012. The statement Ex.PW5/PX1 was read over to the witness but the witness denied having stated so to the police. He has further denied his suggestion that police recorded his statement on 25.08.2012. Statement Ex.PW5/PX2 was read over to the witness but the witness has denied having made such statement to the police. He has further denied the suggestion that on 28.08.2012 statement St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 20 Ex.PW5/PX3 was read over to the witness and confronted but he denied having made the to the police. The photographs on Judicial file were shown to the witness but the witness did not identify the photographs of the deceased on the Judicial file and stated that he does not know the said person and he had not seen the said person at any time. He has denied the suggestion that the accused persons were known to him and are working with him in the same yard company due to which reason he is not deposing true facts to the court. This witness has not been cross examined by the Ld. Defence Counsel despite being granted an opportunity in this regard.
(11) PW6 Sh. Pardeep Kumar Sarkar has deposed that he had been working as a Deputy Manager at IJM India Infrastructure Ltd. situated at Mundka Railway Station where they were managing the Casting Yard. According to the witness, on 23.08.2012 he came at his office for his duty at about 9:159:30 AM and when he was sitting in his office, one security guard came to his office and informed him that police reached at the back side of the Casting Yard. He has further deposed that he also went to the back side of the Casting Yard where saw that police personals were present there and he was asked by the police to call the security guards on which he called the owner of the security guard and the electrician Dev Dutt Sharma was also called. The witness has also deposed that at about 12:00 12:30 PM (Noon) Dev Dutt Sharma also reached at the spot and police conducted their proceedings and Dev Dutt Sharma was with them but no proceedings St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 21 were conducted by the police personals in his presence. According to him, they asked about the functioning of Casting Yard from him. The witness has testified that police also lifted one wooden stick and one iron pipe on the spot and took the possession of the same. He has also deposed that thereafter the police officials left the spot and nothing happened in his presence.
(12) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein he has denied the suggestion that he had seen the blood spots on the road between security post and first aid room at different places; that he had also seen the blood on the grass and on the ground near bushes near the Casting Yard boundary wall; that he had seen the blood spots at the Mundka railway station at different places. He has admitted that police informed him that one boy was found in injured condition at the Mundka railway station platform and who was declared dead by the doctors while going to the hospital. He has denied the suggestion that the said boy was beaten in their area. He has admitted that photographer took the photographs of the blood spots at the spot. The witness has denied the suggestion that Dev Dutt Sharma identified the boy in a photograph at about 12:30 PM when he reached at Casting Yard before the police and stated that the said boy in the photograph was beaten by the security guards and field officials in the last night in the Casting Yard. He has also denied the suggestion that police recorded statement of Dev Dutt Sharma in his presence and put his signatures in the presence of PW6 Sh. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 22 Pradeep Kumar Sarkar. Ex.PW2/B was shown to the witness and read over to him who stated that such statement was not recorded in his presence. He has denied the suggestion that the police lifted the blood earth and the earth control from the east side of the railway station name board and kept the same in a plastic container and sealed the same seized the same. He has also denied the suggestion that police also lifted the blood stained earth and the earth control from the different place near the railway station name board and kept the same in a plastic container and sealed the same and seized the same. He has further denied the suggestion that police also lifted the blood stained grass, earth and earth control from the eastern corner of the metal streets near the boundary wall and kept the same in the plastic container and sealed the same and seized the same. The witness has further denied the suggestion that police also lifted the blood stained earth and earth control from the place near the bushes south side of the santry post and kept the same in the plastic container and sealed the same and seized the same. He has also denied the suggestion that police also lifted the blood stained floor and earth control from the first aid room of the yard and kept the same in the plastic container and sealed the same and seized the same; that police also lifted the blood stained road pieces and earth control from the west side of the Santary post and kept the same in the plastic container and sealed the same and seized the same; that police also lifted blood stained road pieces and earth control from the road at east side of the first aid room and kept the same in the plastic container and sealed St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 23 the same and seized the same. He has admitted that Ex.PW5/A to Ex.PW5/G bear his signatures and has voluntarily explained that he had put his signatures at the instance of the police and did not know the contents of the documents. He has also denied the suggestion that police seized any slippers from the spot; that police handed over the seal of TC to him after putting the same on all pullandas; that on 25.08.2012 HC Jawahar came at their yard and took away the seal of TC from him and he handed over the same to him; that the guards Ravi Rai, Gurcharan, Dharmender@ Shiv Kumar and Jai Singh were brought at the yards at about 10:30 PM who were under custody of the police or that electrician Dev Dutt Sharma identified them as the person who gave beatings to the deceased boy. The witness has also denied the suggestion that Ravi Rai identified the place at IJM Casting Yard at all the places from where the blood and earth control were lifted and he also shown the place at Mundka Railway Station where he gave beatings to deceased boy along with his associates; that at the instance of Ravi Rai, one iron pipe and one Bamboo stick were recovered from the Casting Yard and the blood was found on the same and police seized the same in three cloth pullandas and sealed the same with the seal of TC; that Gurcharan, Dharmender @ Shiv Kumar and Jai Singh also pointed out the places from where the blood stains and samples were lifted and also shown the places where the deceased was given beating by them. He has further denied the suggestion that on 07.09.2012 accused Sunil Kumar, field officer of Swastik Security was brought at their Casting Yard by the police and St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 24 pointed out the Casting Yard and Mundka Railway Station where deceased was apprehended by him and also pointed out the places where the blood was fell down during the beating of the deceased and also pointed out the place where the deceased was thrown after his beating and that police took the possession of attendance register of guards in his presence. He has admitted that Ex.PW5/H, Ex.PW5/I and Ex.PW5/I bear his signatures at point B and has voluntarily explained that police obtained his signatures on said documents but he does not know contents of the said documents. He has further admitted that document Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D and Ex.PW6/E bear his signatures at point A and has voluntarily explained that police obtained his signatures on said documents but he does not know the contents of the said documents. According to the witness, he knew the accused persons Dharmender, Ravi Rai, Gurcharan, Jai Singh, Hari Ram, Sunil Kumar and Ashok being the security guards and field officials who were present in the court on. (13) Since the witness was resiling from his previous statement hence the witness was crossexamined by the Ld. Addl. PP for the State wherein the witness has denied the suggestion that police made inquiries from him and recorded his statement. He has denied the suggestion that police recorded his statement on 23.08.2012. Statement Ex.PW6/PX1 was read over to the witness and confronted but the witness denied having made so to the police. He has also denied the suggestion that police recorded his St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 25 statement on 25.08.2012. Statement Ex.PW6/PX2 was read over to the witness and confronted but witness denied having made so to the police. The witness has also denied the suggestion that police recorded his statement on 07.09.2012. Statement Ex.PW6/PX3 was read over to the witness and confronted but witness denied the same stated to the police. He has denied the suggestion that accused persons were employee of their company and he knew them very well and being their friend he is not deposing true facts before the court. He has not been crossexamined by the Ld. Defence Counsel despite being an opportunity granted in this regard. (14) PW19 Rajesh has deposed that he was working in a private company which was in the name and style of Metro Company and the accused Ravi Rai whom the witness has correctly identified in the court was his senior in the said company. According to the witness, he gave him (Ravi Rai) his I.D. and after some time he left the job of the said company and his ID remained with the said Ravi Rai. He is not aware whether Rai Rai had got issued a mobile number 9958693180 but states that when he left the job from that company, his ID remained with the said Ravi Rai. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard.
(15) PW22 Sh. Dharamvir Sharma has deposed that he is working in MTNL office and the mobile number 9868210280 of MTNL was issued in his name which he had given to his younger brother for his use. According to the witness, he was interrogated in the present case and his St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 26 statement was recorded. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard. (16) PW23 Ms. Seema in her examinationinchief has deposed that she does not recollect if her complete mobile number was 8826162441. According to the witness, one day her son had gone to purchase some article from market and then the mobile set was lost away from him but they did not lodge any complaint. She is not aware as to who had used the said number.
(17) The witness has been crossexamined by the Ld. Addl. PP for the State wherein her statement marked as MarkA was read over to her but she denied having made before the police official. She has denied the suggestion that she intentionally concealing her mobile number or that she had given the above said number to Hari Ram S/o Babu Ram who was residing in A Block, Agar Nagar, Prem NagarIII, Delhi. The witness has further denied the suggestion that she intentionally not identifying the accused Hari Ram as he had been won over by the accused or that she intentionally concealed from the contents of MarkA or that her statement was also recorded. She has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard. (18) PW25 Sh. Jitender Singh has deposed that he was having an office in Bhagya Vihar PhaseII of Shubham Building Material and of Property Dealing. According to the witness he was having one plot at D59, Bhagya Vihar near Jain Public School wherein three rooms were St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 27 constructed. He has also deposed that two of the rooms were in his possession and in one of the room he used to tie his cows/ buffaloes and other room was for the purpose of keeping domestic articles and third room was rented out to the accused Ravi Raj which was rented out to accused Ravi Raj fivesix months earlier prior to the present incident. According to him, the room was rented out to the accused for the monthly rent of Rs. 800/ per month. He has further deposed that he had not executed any rent agreement and did not issue any rent receipt. According to the witness, he also did not get the police verification regarding tenancy and after the incident the accused got vacated the said room from the accused. This witness has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard.
(19) PW26 Sh. Sanjay Sharma has deposed that he is not known to any Ashok Kumar. According to the witness, once he had submitted his ID i.e. copy of his driving licence when he got the job in a security agency and later on he came to know that his ID i.e. copy of his driving licence had been misused for obtaining mobile number 8800138157. (20) In his crossexamination by the Ld. Addl. PP for the State, the statement Mark A had been read over to the witness which he denied having made so before the police. He has denied the suggestion that he got issued mobile No. 8800138157 which was in his name and he had given the same to accused Ashok Kumar for use. He has further denied the suggestion that his statement was also recorded and he intentionally not St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 28 identified the accused Ashok as he had been won over by the accused. This witness has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard.
(21) PW27 Sh. Ram Dulare has deposed that in the year 2012 he was residing at House No. B90, Aggarwal Colony, village Rani Khera, Delhi. According to the witness, in the village Rani Khera there was a house which was in the name of mother of his wife and threefour months prior to the incident of this case, he had given the said room to accused Ashok Kumar, whom the witness has correctly identified in the Court, for Rs.800/ per month on the asking of one of his known namely Raj Nath. He has further deposed that when he gave the said room on rent to the accused, no rent agreement was executed nor he issued any rent receipt to the accused. He has testified that on 23.08.2012 accused Ashok Kumar left the room since morning and thereafter he did not return. This witness has not been cross examined by the Ld. Defence counsel despite being granted an opportunity in this regard.
Witnesses of Medical Record:
(22) PW17 Dr. Sanjay Kumar Jain, Deputy Medical Superintendent/ Casualty Incharge, SGM Hospital, Mangol Puri, Delhi has deposed that on 23.08.2012 at about 6.00AM one injured, unknown was brought to the hospital by HC Krishan of PCR Official and the injured was attended by JR Dr. Nikhil Bhatt who was on duty at that time. He has St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 29 proved the MLC No. 14626 which is Ex.PW17/A according to which the patient was brought dead in the casualty. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard.
(23) PW32 Dr. Manoj Dhingra has deposed that on 23.08.2012 he alongwith Dr. Vivek Rawat had conducted the postmortem examination on the dead body of unknown person which dead body was brought to Inspector Tilak Chand of Police Station Aman Vihar with alleged history of being beaten with dandas and iron pipe by few Security Staff and then the deceased was left near Railway Platform. He has further deposed that the deceased was brought by PCR Van at SGM Hospital Mangol Puri on 23.08.2012 at 6.00AM where he declared brought dead. According to the witness, there were following external injuries on the body of the deceased:
1. Laceration 6 x 3cm bone deep left parital eminence area,
2. Reddish coloured abrasion 4 x 3cm over front of right knee,
3. Reddish coloured abrasion 4 x 2 cm over front of left knee,
4. Bruise, redish coloured 5 x 3 cm with swelling over mid part of right shin with underlying fracture of mid shaft of right tibia.
(24) The witness has further deposed that on internal examination of Head Extravasation of blood seen in left fronto parietotemporal scalp area, Skull: Fissure fracture seen to left parietal bone extending to left St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 30 temporal bone, Brain: Subdural & subrachnoid hemorrhage seen over left frontoparitotemporal lobes and also over the base of cerebellum. Brain was severely congested and edematous.
(25) He has proved that time since death was within 12 hours prior to preservation in SGMH Morgue. According to the witness, death was due to cranio cerebral damage as a result of blunt force impact under injury no.1 which was sufficient to cause death in ordinary course of nature and was fresh and antemortem at the time of death. He has proved the detailed postmortem report bearing no. 793/12 in this regard which is Ex.PW32/A (running into four pages).
(26) According to the witness, on 26.10.2011 he received an application from the Investigating Officer for seeking subsequent opinion and the Investigating Officer also produced a sealed parcel which was sealed with the seal of TC while seeking the subsequent opinion about weapon of offence. The witness has testified that he broke open the seals and found to contain one broken stick, one iron pipe and three bamboo pieces. He has proved having opined that the injuries mentioned in Postmortem Report Ex.PW32/A were possible with the weapon examined by him or by similar one, which subsequent opinion is Ex.PW32/B. He has also deposed that after giving the subsequent opinion the weapon of offence were resealed with the seal of SGMH Mortuary, Delhi and handed over to the Investigating Officer. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 31 (27) The witness has identified case property i.e. an iron pipe attached with an elbow which is Ex.P9; three pieces of broken bamboo stick which pipe is Ex.P10; one danda/ lathee which is Ex.P11. (28) In his crossexamination by the Ld. Defence Counsles the witness has denied the suggestion that time of death and opinion regarding cause of death was given on the asking of the Investigating Officer. (29) PW34 Dr. Brijesh, CMO, SGM Hospital, Mangol Puri, Delhi has deposed that 23.08.2012 he was on duty in the hospital as CMO and Dr. Nikhil Bhatt was on duty as JR Casualty in SGM Hospital, Mangol Puri, Delhi. According to the witness, as per MLC at about 6.00AM one unknown injured was brought to the hospital by HC Krishan of PCR official and was attended by JR Dr. Nikhil Bhatt who was on duty at that time. He has proved the MLC No. 14626 which is Ex.PW17/A according to which BP not recordable, pulse was not palpable, B/L chest air entry was absent, CVSS1 and S2 not heard, pupils were bilaterally fixed and dilated and hence the patient was declared 'brought dead' on arrival at 6.00AM and the dead body was sent to Mortuary for postmortem examination. (30) In his crossexamination by the Ld. Defence Counsels the witness has admitted that he did not personally examine the dead body which was brought to the hospital and he is deposing on the basis of observations made by Dr. Nikhil Bhatt and has voluntarily explained that he only saw the body when the MLC was prepared by Dr. Nikhil Bhatt. He does not recollect if there any injuries present on the body and has St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 32 voluntarily explained that normally as a matter of practice they do not note down or examine any injury present on the dead body which was immediately sent to the mortuary.
Nodal Officers:
(31) PW20 Sh. Chander Shekhar, Nodal Officer, Bharti Airtel Ltd.
has brought the record pertaining to mobile No. 8800138157, 8826162441 and 9958693180. He has proved that the mobile No. 8800138157 was issued in the name of Sanjay Sharma S/o Sh. K.K. Sharma, R/o 187, GK house, Sant Nagar, Delhi65, vide Customer Application Form which is Ex.PW20/A; copy of Driving Licence in support of residence proof which is Ex.PW20/B; call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW20/C (running into one page). He has also proved that mobile No. 8826162441 has been issued in the name of Seema Dave W/o Sh. Surender, R/o B426, B Block, Agar Nagar, Prem NagarIII, Suleman Nagar, Delhi vide Customer Application Form which is Ex.PW20/D; copy of voter card in support of residence proof which is Ex.PW20/E; call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW20/F (running into one page). The witness has further proved that mobile No. 9958693180 has been issued in the name of Rajesh S/o Vijay Ram, R/o 518/15, Mundka Village, Nangloi, Delhi, copy of which is Ex.PW20/G; copy of Voter ID card in support of residence proof which is Ex.PW20/H; St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 33 call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW20/I (running into two pages); Cell ID chart which is Ex.PW20/J and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW20/K. (32) In his crossexamination by the Ld. Defence Counsel the witness has deposed that their main server is situated at Noida and he had retrieved the call details from his personal computer set as he had a direct access from the main server. He has denied the suggestion there was no system of regular power backup in their office resulting into a data loss on account of frequent power failures or that the above calls details had been fabricated on the directions and at the instance of the Investigating Officer. (33) PW21 Sh. Vinod Kumar, Nodal Officer, MTNL, CGO Complex, Lodhi Road, New Delhi has brought the summoned record in respect of mobile numbers 9868210280 and 9968495013. He has proved that the mobile No. 9868210280 has been issued in the name of Dharamveer Sharma R/o B73, Gali No.2, Ganga Vihar, Near Gokhulpuri, Delhi94 vide Customer Application Form which is Ex.PW21/A; copy of Office ID card in support of residence proof which is Ex.PW21/B; Call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW21/C (running into two pages) and Cell ID Chart which is Ex.PW21/D (running into one page). The witness has also proved that mobile No. 9968495013 has been issued in the name of Sunil Kumar S/o Chandan Singh, R/o 187, GK House, Sant Nagar, Delhi65 vide Customer Application Form which is St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 34 Ex.PW21/E; copy of Driving Lincence and Pan Card in support of residence proof which is Ex.PW21/F; call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW21/G (running into three pages) and Cell ID Chart which is Ex.PW21/H and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW21/I. (34) In his crossexamination by the Ld. Defence Counsel the witness has deposed that their main server was situated at Tis Hazari, Delhi and he had retrieved the call details from his personal computer set as he had a direct access from the main server. He has denied the suggestion that there was no system of regular power backup in their office where the main server was installed resulting into a data loss on account of frequent power failures or that the above calls details had been fabricated on the directions and at the instance of the Investigating Officer.
Police/ Official Witnesses:
(35) PW1 HC Rajesh Kumar has deposed that on 23.08.2012 he was working as Duty Officer from 12 midnight to 8.00 AM and at 6.30 AM, a telephone call was received from Control Room, Outer District that one person was lying unconscious outside Mundka Railway Station Gate on which information was recorded by him in DD No.8A true copy of which is Ex.PW1/A. According to the witness, at 6.40 AM Duty Constable Dalbir from SJM Hospital informed on telephone that one unknown person was admitted to the said hospital by PCR Official HC Krishan Kumar, who was St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 35 declared brought dead by the doctor and the said information was recorded by him in DD No.9A copy of which is Ex.PW1/B. The witness has also deposed that at about 6.47 AM on the same day DD No. 11A was made regarding the departure entry of Inspector Tilak Chand by Government vehicle for further enquiry who went to the hospital, copy of which entry is Ex.PW1/C. (36) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he had not recorded any other DD on the said day regarding this case during his duty as Duty Officer. (37) PW2 HC Ajit Singh has deposed that on 23.08.2012 he was posted at Police Station Aman Vihar and was working as Duty Officer from 8.00 AM to 4.00 AM and at about 3.05 PM he received a rukka through HC Shiv Pal sent by Inspector Tilak Chand on the basis of which he got the formal FIR recorded on the computer in the ordinary course of the business in the Police Station through Computer Operator which was according to the contents of the rukka. He has proved the printout of the said FIR which is Ex.PW2/A. According to the witness, on the original rukka he made his endorsement at Point A regarding the registration of FIR which rukka is Ex.PW2/B which was given in original back to HC Shiv Pal to be taken at the spot alongwith the computerized printout of the FIR and the further investigation was entrusted to Inspector Tilak Chand. This witness has not been crossexamined by the Ld. Defence Counsel despite an opportunity granted in this regard.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 36
(38) PW3 Inspector Vijay Kumar Kataria has deposed that after the transfer of the initial Investigating Officer Inspector Tilak Chand, the case was handed over to him for further investigation and he sent the exhibits of the case to FSL Rohini, Delhi and a scaled site plan was got prepared from the draftsman SI Manohar Lal at the instance of SI Sumit and thereafter the charge sheet was prepared and was got forwarded for trial. (39) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he does not record the statement of any witness except SI Manohar Lal and SI Sumit.
(40) PW7 HC Surender Singh is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved entry in register No. 19 vide mud No. 605/12 dated 23.08.2012, mud No. 1607/12 dated 25.08.2012 and mud No. 1633/12 dated 06.09.2012 and mud No. 1650/12 dated 11.09.2012, copies of which are Ex.PW7/A (running into eight pages), Ex.PW7/B (running into seven pages), Ex.PW7/C (running into two pages) and Ex.PW7/D. He has also proved the RC No. 212/21/12, copy of which is Ex.PW7/E (running into two pages), RC No. 211/21/12, copy of which is Ex.PW7/F and copy of the FSL receipt No. FSL2012/B7805 which is Ex.PW7/G. (41) He has not been crossexamined by the Ld. Defence Counsel despite being granted an opportunity in this regard. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 37 (42) PW8 Ct. Om Parkash is a formal witness who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 30.10.2012 he received exhibits along with sample seal through RC No. 212/21/12 copy of which is Ex.PW7/E on which he deposited the same with the FSL, Rohini vide receipt Ex.PW7/G. He has not been crossexamined by the Ld. Defence Counsel despite being granted an opportunity in this regard. (43) PW9 Ct. Aman is also a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 23.8.2012 he had delivered the copy of FIR (Special Reports) to the Ld. MM and senior officers. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard. (44) PW10 Ct. Pardeep is a formal witness being the Computer Operator who has been examined by way of affidavit Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 23.8.2012 at about 3:05 PM Duty Officer HC Ajit Singh handed over him a rukka on the basis of which he ryped an FIR No. 240/2013 through CIPA System and handed over the copy of the FIR along with rukka to Duty Officer.
(45) He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 38 (46) PW11 L/Ct. Sunita Yadav is a formal witness being the PCR Official who has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved the PCR Form which is Ex.PW11/A. She has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard. (47) PW12 HC Ram Bhagat is also a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having recorded the DD No. 7A dated 23.08.2012 copy of which is Ex.PW12/A. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard.
(48) PW13 HC Krishan is a formal witness being the PCR Van Incharge who has been examined by way of affidavit which is Ex.PW13/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 23.8.2012 at about 4:30 AM he received a call that one man was lying unconscious near Mundka Railway Station Gate No. 15, Delhi on which he reached the spot and found one person in unconscious condition with injury on his head after which he shifted the injured to Sanjay Gandhi Hospital. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard.
(49) PW14 Ct. Kamal is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 39 Ex.PW14/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken the photographs of the scene of crime which are Ex.PW14/A1 to Ex.PW14/A30 and negatives of the same which were collectively Ex.PW14/B. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard. (50) PW15 ASI Ajeet is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW15/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the scene of crime and prepared the Crime Team Report which is Ex.PW15/A. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard. (51) PW16 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW16/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the scaled site plan which is Ex.PW16/A. He has not been crossexamined by the Ld. Defence counsel despite being granted an opportunity in this regard.
(52) PW18 HC Shiv Pal is a formal witness who has been examined by way of affidavit is Ex.PW18/A (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 23.8.2012 while he was posted at Police Station Aman Vihar a PCR call was received that a person was lying unconscious near Mundka Railway Station on which he joined the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 40 proceedings with the Investigating Officer and other staff. He has further deposed that he reached at Sanjay Gandhi Hospital where an unknown boy was found dead and thereafter he reached the spot i.e. Mundka Railway Station and also in IJM Casting Yard where blood spots were found. The witness has also deposed that Inspector Tilak Chand recorded the statement of eye witness Dev Dutt Sharma and prepared a rukka which he handed over to him for getting the FIR registered on which he took the same to the Police Station and get the FIR registered.
(53) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestions that no statement was made by Dev Dutt Sharma to the Investigating Officer or that rukka was fabricated and on the fabricated rukka the FIR was registered ante datedly. (54) PW24 SI Shri Bhagwan has deposed that on 24.10.2012 she was posted at Police Station Aman Vihar and on that day he was handed over the case file in the present case on the directions of the Investigating Officer Inspector Vijay Kataria. According to the witness, after receipt of the case file, she along with HC Jawahar went to Village Hathnasa, Rai Bareilly for apprehension of accused Ashok who was a resident of the said village and they reached there on 25.10.2012 and went to his house at village Hathnasa where they were informed that he (accused Ashok) had gone to the fields. He has testified that they waited in the village and at about 3:30 PM they were informed by the secret informer that he (accused Ashok) had reached back his house after which they went to his house and on the pointing out of St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 41 secret informer Ashok was apprehended and interrogated wherein he disclosed his involvement in the present case. He has proved that the accused Ashok was arrested him vide memo Ex.PW24/A, his personal search was taken vide memo Ex.PW24/B and his disclosure statement was recorded vide memo Ex.PW24/C. He has also deposed that information of his arrest was given to his mother after which they returned to Police Station Surani and after giving the information in the Police Station they returned to Delhi where they reached in the morning hours of 26.10.2012. The witness has further deposed that on the same day, the accused Ashok led them to the place of incident and pointed out the same where he prepared the seizure memo vide memo Ex.PW24/D. He has further deposed that his medical examination was got conducted after which both the accused Ashok and the case file was handed over to Inspector Vijay Kataria. Initially the witness was unable to identify he accused Ashok but when the accused Ashok was specifically put to the witness he identified the accused.
(55) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he had made his departure entry when he left Delhi and also made a specific arrival entry at Police Station Surani. According to the witness, no public persons had gathered when they apprehended and arrested Ashok from his village. He has also deposed that they were in uniform at that time and he did not join any public person including neighbors and pradhan of the village while interrogating the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 42 accused Ashok. He has denied the suggestion that no interrogation of Ashok was done and it was for this reason that no public person was joined. He has further denied the suggestion that Ashok did not make any disclosure statement to him or that he recorded the disclosure statement of Ashok of his own while sitting in the Police Station in Delhi. The witness has also denied the suggestion that all documents relating to Ashok were prepared in Delhi while sitting in Police Station Aman Vihar or that it was for that reason that all the documents relating to Ashok did not bear any signatures of public persons of village Hathnasa, Rai Bareilly or police officers of Police Station Surani. According to the witness, he is not aware of the place of the incident prior to its pointing out by accused Ashok. He has admitted that HC Jawahar was aware of the spot of the incident. He has also admitted that the pointing out memo does not bear the signatures of any public person and has voluntarily explained that the area was a jungle and there were no public persons. He has further denied the suggestion that accused Ashok did not point out any place of incident or that he prepared the same of his own in connivance with HC Jawahar.
(56) PW28 SI Sumit Kumar has deposed that on 06.09.2012 he was posted at Police Station Aman Vihar and on that day he joined the investigations along with Inspector Tilak Chand and HC Jawahar Singh. He has further deposed that in the morning at about 6 AM he along with Inspector Tilak Chand and HC Jawahar Singh went in search of accused Sunil Kumar at his house in his native village at district Palwal but the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 43 accused Sunil Kumar was not found present there. According to the witness, they searched for him in the village but could not locate him and therefore they started to return to Delhi and while they were on the way Inspector Tilak Chand received a secret information on his telephone that Sunil was coming to his office where he was previously employed i.e. Swastik Security Agency, Sant Nagar, East of Kailash. The witness has testified that at around 5:30 PM they reached Swastik Security Agency at Sant Nagar, East of Kailsh and stood outside on the road and while they just reached there, the secret informer pointed out towards one boy who was moving towards the office of Swastik Security Agency as Sunil Kumar, on which they apprehended him and the said boy was interrogated who confirmed his name as Sunil Kumar and also disclosed his involvement in the present case. He has also deposed that the accused Sunil disclosed that the clothes which he was wearing on the day of incident were in his house at village Hidayatpur, District Palwal. The witness has proved that the accused Sunil was then arrested vide memo Ex.PW28/A, his personal search was also conducted vide memo Ex.PW28/B and his disclosure statement was also recorded vide Ex.PW28/C. He has further deposed that the accused Sunil then led them to his house at village Hidayatpur, District Palwal and from the room on the first floor he got recovered his clothes i.e. shirt and pant from inside a rack, which clothes were converted into pullanda with the help of cloth and sealed with the seal of TC and thereafter seized vide memo Ex.PW28/D. According to the witness, seal after use St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 44 was handed over to him and thereafter they returned to Delhi and the accused was put in the lock up of the Police Station and the case property was deposited in the Malkhana. The witness has further deposed that on the next day i.e. on 07.09.2012 the accused was taken out from lock up after which he led them to the spot of the incident where the murder had taken place. According to the witness, there they met the staff of Casting Yard i.e. P.K. Sarkar and on the pointing out of accused Sunil Inspector Tilak Chand prepared the pointing out memo vide Ex.PW6/E after which they returned to the Police Station where his statement was recorded and was relieved.
(57) He has testified that on 11.09.2012 he along with Inspector Tilak Chand went to mortuary of SGM Hospital for getting conducting the postmortem on the body of the unknown deceased and after the postmortem the doctor handed over to Inspector Tilak Chand three sealed pullandas duly sealed with the seal of the hospital and one sample seal. According to the witness, the first pullanda contained the clothes of the deceased, the second pullanda contained the blood sample of the deceased and the third sample contained a tooth of the deceased for purposes of conducting DNA examination on the body to ascertain his identity. He has proved that the Investigating Officer prepared the seizure memo of the same vide Ex.PW28/E. The witness has also deposed that on the same day the body of the deceased was got cremated as unknown person at electric crematorium at Sarai Kale Khan vide receipt Ex.PW28/F. He has further St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 45 deposed that thereafter then returned to the Police Station where his statement was recorded and was relieved.
(58) The witness has identified the accused Sunil in the court and also identified the case property i.e. one black color pant and one checkdar shirt with white base as got recovered by accused Sunil, which Pant is Ex.P1 and shirt is Ex.P2.
(59) In his crossexamination by the Ld. Defence Counsels the witness has deposed that no public witness was joined at the time when the accused Sunil was apprehended nor the Investigating Officer called the owner or any employee of Swastik Security Agency including the Manager or other staff to join the investigations. He has further deposed that the Investigating Officer had confirmed that Sunil Kumar was previously employed with Swastik Security Agency and has voluntarily explained that the Investigating Officer had confirmed on telephone but not physically. He has testified that it was evening hours and security agency was closed. According to him. The Investigating Officer had confirmed about the employment of Sunil from the agency at about 5 PM. He has denied the suggestion that Swastik Security Agency remains open till the late evening hours with the supervisory staff sitting over night as the employees were on duty even in the night hours. He has also denied the suggestion that accused Sunil was not apprehended from the road opposite Swastik Security agency at East of Kailash and was in fact lifted from his house at village Hidayatpur, District Palwal, Haryana.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 46 (60) The witness has further deposed that he did not make any separate departure entry while leaving the Police Station in the morning at 6 AM and while returning at around 9 PM. According to the witness, they again reached the village Hidayatpur at around 7 PM. He has further deposed that Palwal is around 50 Kms from Delhi and the village of accused Sunil is just near to the border. He is unable to tell if the village of the accused Sunil was around 100 kms from Delhi and it took about two and a half to three hours to reach there. The witness has testified that the Investigating Officer had only the local police at Police Station Chand Hut in the morning but not in the evening when they again went to the house of the accused. He has denied the suggestion that when the accused was lifted from his house, one set of fresh clothes were also taken by the Investigating Officer or that later in order to connect the accused with the offence the blood was sprinkled on the clothes of the accused Sunil taken from his house in order to fabricate the evidence against him. According to the witness, the accused was taken out from the lock up on the next day at about 78 AM and apart from the employee of the Casting Yard, no other public person was joined by the Investigating Officer. He has admitted that the Investigating Officer Inspector Tilak Chand was already aware of the spot of the incident. He further denied the suggestion that all documentations including disclosure statement of accused Sunil was done while sitting in the Police Station or that he had signed the same on the asking of the senior officers. The witness has denied the suggestion that no disclosure statement St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 47 was made by accused Sunil or that the same was written by the Investigating Officer of his own and he merely signed the same on the asking of the senior officers.
(61) PW29 SI Somveer has deposed that on 23.08.2012 he was posted as Incharge Police Post Prem Nagar of Police Station Aman Vihar, Delhi and on that day he was called by Inspector Tilak Chand in Sanjay Gandhi Hospital pursuant to which he alongwith HC Jawahar, Ct. Om Prakash and HC Shiv Pal reached in Sanjay Gandhi Hospital where Inspector Tilak Chand alongwith SI Karamvir alongwith other staff met him there. The witness has testified that in the hospital an unknown body was shifted by the PCR at 6.00AM where doctor declared the body as brought dead which was in the emergency ward. According to the witness, the status of the body was that he was about 2025 years old and well built and Inspector Tilak Chand inspected the body and it was found that there were injury marks on the head of the deceased and there were injury marks almost all over the body. The witness has further deposed that on the right arm, a name Shakti Rita was engraved and there was a mark of 'OM' on the upper palm of the right hand of the dead body and the deceased was wearing a maroon colour T Shirt and black colour half pant. He has also deposed that Inspector Tilak Chand called the Crime Team and the photographer in the Emergency Ward. According to the witness, photographer of the crime Team took the photographs of the body and Incharge of the Crime Team inspected the body after which the body was sent to the mortuary of SGM St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 48 Hosptial through SI Karamvir. The witness has further deposed that thereafter Investigating Officer contacted the Incharge of the PCR Van who had brought the body in the hospital and asked him about the place from where the injured was taken to the hospital. He has further deposed that after coming to know the spot, the Investigating Officer and other staff reached the spot i.e. Mundka Railway Station, North Side on the East corner of the platform where PCR Incharge was found present there and he showed the place from where he took the injured to the Hospital. The witness has also deposed that at the spot blood in huge quantity was lying on which the Investigating Officer called the photographer and the Crime Team at the spot also and thereafter the Incharge of the Crime Team inspected the spot and photographer of the Crime Team took the photographs of the spot from different angle. He has testified that Investigating Officer also inspected the spot and blood was lying towards Casting Yard and on the road which was inside the Casting Yard. According to him, nobody from the persons who were present on the railway platform, could disclose about the incident. (62) The witness has further testified that thereafter Investigating Officer contacted the Manager of Casting Yard and asked him about the employees who were on night duty on which he (Manager) handed over list of the employees who were on night duty. He has also deposed that thereafter as per the information received from Manager, the electrician namely Dev Dutt Sharma who was on night duty was called and St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 49 Investigating Officer recorded his statement. He has testified that thereafter the Investigating Officer made his endorsement on the statement of Devi Dutt and prepared the Rukka and got the case registered through HC Shiv Pal. According to him, thereafter the Investigating Officer prepared the rough site plan. He has proved that the Investigating Officer lifted blood stained earth and earth control, blood stained grass and earth control from seven spots where blood was lying and the same were kept in separate plastic dibbies which were given S.No. A1 to A7 and and earth control also lifted from the seven spots which were also kept in separate plastic dibbies and were given S.No. EC1 to EC7. He has also deposed that all the above material was sealed with the seal of TC and were taken into possession vide seizure memos Ex.PW5/A to Ex.PW5/G. He has further deposed that thereafter Pradeep Kumar Sarkar handed over the attendance register of the employees of night shift which was taken into possession vide memo Ex.PW5/J which attendance register is Ex.PX. The witness has testified that thereafter the Investigating Officer lifted one pair of plastic chappal which was lying at the spot, the same were also converted into pullanda and sealed with the seal of TC and was taken into possession vide memo Ex.PW5/A. He has also deposed that thereafter on that day he alongwith Investigating Officer and other police staff along with the exhibits returned to the Police Station and Investigating Officer deposited the case property in the Malkhana.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 50 (63) He has further deposed that on 25.08.2012 he again joined investigation of this case with Investigating Officer and they all reached at Bhagya Vihar, Village Rani Khera near Jain Public School pursuant to a secret information which was having with the Investigating Officer Inspector Tilak Chand who shared the same with them. He has further deposed that the secret informer met them near Jain Public School and at the instance of secret informer, accused Ravi Rai was arrested from near Jain Public School in between 4.30 to 5.00PM, vide memo Ex.PW29/A, his personal search was carried vide memo Ex.PW29/B and disclosure statement of accused Ravi Rai was recorded vide Ex.PW29/C. He has testified that in pursuance to the disclosure statement of accused Ravi Rai and at his instance accused Gurcharan, Dharamender @ Shiv Kumar and Jai Singh were arrested from Prem Nagar and Nangloi vide memos Ex.PW29/D1 to Ex.PW29/D3 respectively, their personal search was carried out vide memos Ex.PW29/D4 to Ex.PW29/D6 respectively and their disclosure statements were recorded vide Ex.PW29/D7 to Ex.PW29/D9. The witness has also deposed that thereafter accused Ravi Rai got recovered his dress of Swastik Security blood stained from his room where he was residing and the Investigating Officer converted the same into a sealed pullanda sealed with the seal of TC and took the same into possession vide memo Ex.PW29/E1. He has proved that thereafter accused Gurcharan got recovered his dress of Swastik Security blood St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 51 stained from his room where he was residing on which the Investigating Officer converted the same into a sealed pullanda sealed with the seal of TC and took the same into possession vide memo Ex.PW29/E2. He has also deposed that thereafter accused Dharmender got recovered his dress of Swastik Security blood stained from his room where he was residing and the Investigating Officer converted the same into a sealed pullanda sealed with the seal of TC and took the same into possession vide memo Ex.PW29/E3. According to him, the accused Jai Singh got recovered his dress of Swastik Security blood stained from his room where he was residing and the Investigating Officer converted the same into a sealed pullanda sealed with the seal of TC and took into possession vide memo Ex.PW29/E4. He has testified that thereafter accused Ravi Rai took them to the house of Ashok Kumar their Supervisor but his room was found locked and pointing out memo in this regard was prepared which is Ex.PW29/F. He has proved that all the above four accused took them to Casting Yard and pointed out the place of incident vide pointing out memo Ex.PW6/A to Ex.PW6/D. He has also deposed that the accused Ravi Rai got recovered one blood stained danda and an iron pipe and one broken danda from the back side of security post situated at Casting Yard which were lying behind the security post after which the same were sealed with the seal of TC and were taken into possession vide memo Ex.PW5/H. According to the witness, thereafter he alongwith the police party and all the accused persons returned to the Police Station where the Investigating St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 52 Officer deposited the case property with MHC(M).
(64) The witness has correctly identified the accused persons in the Court and also identified the case property i.e. one pant of black color and one stripped shirt with the sticker of Swastik Security as got recovered by accused Ravi Rai, which Pant is Ex.P3 and Shirt is Ex.P4 respectively; one stripped shirt with the sticker of Swastik Security as got recovered by accused Gurcharan, which shirt is Ex.P5; one stripped shirt as got recovered by accused Dharmender @ Shiv Kumar, which shirt is Ex.P6; one black color lining pant and one stripped shirt with the sticker of Swastik Security as got recovered by accused Jai Singh, which pant is Ex.P7 and the shirt is Ex.P8; an iron pipe along with T rod/ elbow which was got recovered by accused Ravi Rai, which is Ex.P9; a wooden danda/ lathi as the one which was recovered by accused Ravi Rai, which is Ex.P10; pieces of bamboo stick as the one which was recovered by accused Ravi Rai which is Ex.P11; containers which were found to contain blood stained earth along with earth control which was lifted from the spot of the incident which are Ex.P12 to Ex.P18 respectively and one pair of plastic chappals of black color as the same lying at the spot of the incident which are collectively Ex.P19.
(65) In his crossexamination by the Ld. Defence Counsels the witness has admitted that Dev Dutt did not give any statement to the Investigating Officer in his presence on 23.08.2012. He has further St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 53 admitted that he had joined the investigations along with Investigating Officer on 23.08.2012 and was present with him throughout. He has denied the suggestion that accused Dharmender @ Shiv Kumar, Gurcharan, Ravi Rai and Jai Singh did not make any disclosure statements or that the same were recorded by the Investigating Officer of his own and he merely signed the same on the asking of the senior officers. He has further denied the suggestion that accused persons did not get recovered any articles or any clothes or that the same were planted upon the accused only to connect with the present case to solve the blind case. He has also denied the suggestion that all the documentations were done while sitting in the Police Station or that he merely signed the same on the asking of the senior officers. The witness has further denied the suggestion that he never joined the investigations of the present case. He has admitted that the elbow was available in the Casting Yard along with the other items being in common use and has voluntarily explained that particular elbow was kept hidden behind the santry post where the iron pipes were kept. He has also admitted that the lathi/ dandas Ex.P9, Ex.P10 and Ex.P11 were also items of common use easily available in the market. The witness has denied the suggestion that the pipe and dandas had been planted upon the accused after sprinkling blood on them in order to connect the accused with the offence. He has further admitted that there were rains and has voluntarily explained that at the time when they reached the spot, there were no rains and it had rain only on the previous night. He has further denied the suggestion that St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 54 entire place was an open area and was having water accumulated at various spots but has admitted that there was no roof at the spot and it was exposed to sky. He has denied the suggestion that the entry to the Casting Yard was not restricted and anybody could enter the same.
(66) PW30 SI Karamveer has deposed that on 23.08.2012 he was posted at Police Post Prem Nagar of Police Station Aman Vihar and was on emergency duty. According to the witness, on receipt of DD No. 6 PP which is Ex.PW30/A he reached near Mundka Railway Station but nobody found there and thereafter he received information from the Police Station and was directed to reach in SGM Hospital. The witness has also deposed that he alongwith Ct. Narender reached at SGM Hospital where injured found admitted in the emergency ward and doctor declared him as 'brought dead'. According to him, he collected the MLC of the injured from the doctor concerned and after some time Inspector Tilak Chand with other staff and SI Somvir also reached in the hospital and he handed over the MLC of the injured to the Inspector Tilak Chand after which he was directed by the Inspector Tilak Chand to shift the body in the mortuary of SGM Hospital and accordingly he shifted the dead body in the mortuary of SGM Hospital. He has proved having taken the palm and finger impressions of the hands of the deceased which are Ex.PW30/B. (67) The witness SI Karamveer has proved the investigations conducted by the Investigating Officer Inspector Tilak Chand on 25.8.2012 and has corroborated the testimony of SI Somveer (PW29) to the extent of St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 55 arrest of accused Ravi Rai, Gurcharan, Dharmender @ Shiv Kumar and Jai Singh and the recoveries pursuant to their disclosure statements. (68) He has further deposed that on 28.08.2012 he again joined the investigation of that case with Investigating Officer Inspector Tilak Chand and HC Jawahar Singh when they went to Agar Nagar A Block around 5.005.30PM where a secret informer met them who informed about the accused Hari Ram to the Investigating Officer. According to the witness, thereafter on the service road of ABlock of Agar Nagar, Prem Nagar accused Hari Ram was arrested vide memo Ex.PW30/C; his personal search was carried out vide memo Ex.PW30/D and his disclosure statement was recorded vide Ex.PW30/E. He has testified that the accused Hari Ram took them to the place of incident and pointed out the place of incident vide memo Ex.PW30/E1. The witness has also deposed that the accused Hari Ram took them to his house and produced his blood stained dress of Swastik Security, which was converted into pullanda and was sealed with the seal of TC and was taken into possession vide memo alongwith pointing out Ex.PW30/F. He has also deposed that thereafter he alongwith the Investigating Officer and case property returned to the Police Station where Investigating Officer deposited the case property with the MHC(M) and his statement was recorded.
(69) According to the witness, on 29.08.2012 one Sulochana Sunderi came to the Police Station and she handed over work order of IJM India (Infrastructure Ltd.) to the Investigating Officer who took the same into St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 56 possession vide memo Ex.PW4/C which copy of work order is Ex.PW4/B. He has further deposed that on 20.10.2012 he took SI Manohar Lal to the spot where SI Manohar Lal took the rough notes of the spot for preparation of scaled site plan.
(70) The witness has correctly identified the accused Ravi Rai, Gurcharan, Dharmender @ Shiv Kumar, Jai Singh and Hari Ram in the Court. He has also identified the case property i.e. one pant of black color and one stripped shirt with the sticker of Swastik Security as got recovered by accused Ravi Rai, which Pant is Ex.P3 and shirt is Ex.P4 respectively; one stripped shirt with the sticker of Swastik Security as got recovered by accused Gurcharan, which shirt is Ex.P5; one stripped shirt as got recovered by accused Dharmender @ Shiv Kumar, which shirt is Ex.P6; one black color lining pant and one stripped shirt with the sticker of Swastik Security as got recovered by accused Jai Singh, which pant is Ex.P7 and the shirt is Ex.P8; an iron pipe along with T rod/ elbow which was got recovered by accused Ravi Rai, which is Ex.P9; a wooden danda/ lathi as the one which was recovered by accused Ravi Rai, which is Ex.P10; pieces of bamboo stick as the one which was recovered by accused Ravi Rai which is Ex.P11; one pant of black color and one stripped shirt with the sticker of Swastik Security as got recovered by accused Hari Ram which Pant is Ex.P20 and shirt is Ex.P21 respectively.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 57 (71) In his crossexamination by the Ld. Defence Counsels the witness has denied the suggestion that accused persons did not make any disclosure statements or that the same were recorded by the Investigating Officer of his own and he merely signed the same on the asking of the senior officers. He has further denied the suggestion that the accused did not get recovered any articles or any clothes or that the same were planted upon the accused only to connect with the present case to solve the blind case. The witness has also denied the suggestion that all documentation were done while sitting in the Police Station or that he merely signed the same on the asking of the senior officers. He has further denied the suggestion that he never joined the investigations of the present case. He has admitted that the elbow was available in the Casting Yard along with the other items being in common use and has voluntarily explained that particular elbow was kept hidden behind the santry post where the iron pipes were kept. He has also admitted that the lathi/ dandas Ex.P9, Ex.P10 and Ex.P11 were also items of common use easily available in the market. The witness has denied the suggestion that the pipe and dandas had been planted upon the accused after sprinkling blood on them in order to connect the accused with the offence. He has also admitted that there were rains on the date of incident and has voluntarily explained that at the time when they received the call and reached the spot, the rain had stopped. He has denied the suggestion that the entire place was an open area and was having water accumulated at various spots and has voluntarily explained that the area was open but since St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 58 it was light shower the water had soaked into the ground. The witness has admitted that the entire place was expose to sky and that anybody could easily enter the Casting Yard by jumping over the wall. According to him, the wall was 6 feet high but there were gaps between the angles which were big at many places and anybody could enter from there. He has denied the suggestion that the entry to the Casting Yard was not restricted and anybody can enter the same.
(72) PW31 HC Jawahar Singh has deposed that on 23.08.2012 he was posted at Police Station Aman Vihar and on that day he joined the investigations along with Inspector Tilak Chand, SI Karamveer and SI Somvir and other staff. According to the witness, on receipt of the call they had gone to the Casting Yard, near Mundka Railway Station but came to know that injured had been shifted to SGM hospital by the PCR on which they came to SGM hospital where in the hospital an unknown body was shifted by the PCR where doctor declared as brought dead and the body was at that time in the mortuary. He has further deposed that thereafter they returned to the spot i.e. Casting Yard Mundka Station and the Crime Team was called there and the spot was got photographed. According to him, at the spot remnants of blood lying at the spot was found to had been washed but one could still make out that there was blood. He has testified that the Investigating Officer lifted the exhibits in the form of blood stained earth and earth control.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 59 (73) The witness had been asked to recollect and inform from his memory all that had taken place and he had also been told that he could refresh his memory after seeing the case diaries but the witness stated that he cannot depose with regard to any investigations which took place further, since his statement is not on record.
(74) He has testified that on 25.08.2012 he again joined the investigations in this case along with Inspector Tilak Chand, SI Somveer and SI Karamveer. The witness has also deposed that he left the Police Station in the morning at around 10 AM and reached Bhagya Vihar where the secret informer met Inspector Tilak Chand and informed that one accused wanted in the present case namely Ravi Rai would be passing through the area of Bhagya Vihar in front of Jain School. He has further deposed that after some time on the pointing out of secret informer one boy coming from the side of Rani Khera village was apprehended by him and SI Karamveer who on interrogation confirmed his name as Ravi Rai after which the accused was handed over to the Investigating Officer who then directed him to get the seal of TC i.e. Tilak Chand from the Manager, Pardeep Sarkar. According to the witness, he then went to the Casting Yard Mundka Station and took the seal of TC from Pardeep Sarkar and handed over the same to Inspector Tilak Chand at the spot. The witness has also deposed that thereafter they tried to search for the other accused but could not locate them. He has also deposed that the medical examination of the accused Ravi Rai was got conducted from SGM hospital after which he was St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 60 relieved.
(75) The witness has testified that on 28.08.2012 he joined investigations with Inspector Tilak Chand and SI Karamveer and went to the area of Agar Nagar where around 5 PM secret informer informed the Investigating Officer that the accused wanted in the present case namely Hari Ram would come to his house situated at Agar Nagar, Delhi after which on the pointing out of secret informer they went to the house of Hari Ram who was apprehended. The witness has proved that the accused Hari Ram was arrested vide memo Ex.PW30/C, his personal search memo was prepared vide memo Ex.PW30/D and his disclosure statement was also recorded vide memo Ex.PW30/E. According to the witness the accused then led them to the spot of the incident on which Investigating Officer prepared the pointing out memo vide Ex.PW30/E1. He has also deposed that the accused was then taken to the hospital for his medical examination after which he was produced before the Court.
(76) The witness has also deposed that on 06.09.2012 he again joined the investigations in the present case along with Inspector Tilak Chand, SI Sumeet and other staff and went in search of the accused Sunil and left the Police Station at about 6:00 AM for District Palwal where the accused Sunil Kumar was residing at village Hidayatpur. According to him, they went to his house but the accused was not found present there and they also searched for him in the village but could not locate him and his family informed them that he (accused) was going to his security agency at Sant St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 61 Nagar, East of Kailash, Delhi for getting his salary. He has also deposed that they reached Sant Nagar at about 4 PM and tried to search for him and at about 4:305:00 PM on the basis of the description given to the Investigating Officer, the accused Sunil was apprehended at the gate of Security Agency. He has further testified that the accused was interrogated and he confirmed his name as Sunil Kumar and also disclosed his involvement in the present case. According to him, the accused also disclosed that the clothes which he was wearing on the day of incident were in his house at village Hidayatpur, District Palwal. He has proved that the accused Sunil was then arrested vide memo Ex.PW28/A, his Personal Search was also conducted vide memo Ex.PW28/B and his disclosure statement was also recorded vide Ex.PW28/C. He has testified that the accused also led them to the spot of the incident where the murder had taken place. He has also deposed that there they met the staff of Casting Yard i.e. P.K. Sarkar and on the pointing out of accused Sunil Inspector Tilak Chand prepared the pointing out memo vide Ex.PW6/E where he also signed. It has been observed by this Court that the signatures of the witness were not present on the pointing out memo.
(77) The witness has also deposed that the accused Sunil then led them to his house at village Hidayatpur, District Palwal and from the room on the first floor he got recovered his clothes i.e. shirt and pant which were converted into pullanda with the help of polythene bag which was covered in a white cloth and sealed with the seal of TC and thereafter seized the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 62 same vide memo Ex.PW28/D. He has also deposed that the accused was then taken to SGM Hospital where his medical examination was got conducted and brought to the Police Station where he was put in the lock up and the case property was deposited in the malkhana. According to him, on 24.10.2012 he joined the investigations in the present case along with SI Shri Bhagwan and accompanied him to Village Hathnasa, District Rai Bareilly, Police Station Surani for search of accused Ashok. He has testified that on reaching there on 25.10.2010 they met the Pradhan of the village who told them that Ashok was not available in his house having gone to the jungle and would return after one or two days but at about 3:30 PM on the same day they received information that the accused had reached home. According to the witness, they went to his house and on the pointing out of secret informer Ashok was apprehended and interrogated wherein he disclosed his involvement in the present case, after which the accused Ashok was arrested vide memo Ex.PW24/A; his personal search was taken vide memo Ex.PW24/B and his disclosure statement was also recorded vide memo Ex.PW24/C. He has further deposed that in the morning on 26.10.2012 they returned to Delhi and on the same day, the accused Ashok led them to the place of incident and pointed out the same where he prepared the seizure memo vide memo Ex.PW24/D. The witness has also deposed that his medical examination was got conducted and was produced in the court by SI Shri Bhagwan.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 63 (78) The witness has correctly identified the accused Hari Ram, Ashok, Sunil and Ravi Rai in the Court and also the case property i.e. the clothes i.e. Ex.P3, Ex.P4, Ex.P20 and Ex.P21, but he has not been able to tell from whom which clothes were recovered because they all look a like being uniform.
(79) Leading questions were put to the witness by the Ld. Addl. PP for the State after taking the permission of the Court on the aspect of seizure memo of clothes recovered by accused Hari Ram wherein the witness has admitted that the clothes of Hari Ram was seized in his presence which he got recovered from his house and the seizure memo Ex.PW30/ F bear his signatures at point B. (80) In his crossexamination by the Ld. Defence Counsels the witness has deposed that on 28.09.2012 he had left the Police Station at about 12:001:00 PM but he did not make any separate departure entry or arrival entry in respect of the investigations conducted on any of the days when he had joined the same and has voluntarily explained that the combine entry was made by the senior officers but he is unable to tell the details of the same. He has admitted that the Investigating Officer had come to know the names of the guards and about their duties from Security Agency and also from the Casting Yard. He has testified that during the investigations relating to the arrest of the accused Hari Ram, Ravi Rai, Ashok and Sunil neither any Manager or employee of the Security Agency where the accused were employed or the Manager of the employee of the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 64 Casting Yard where they were on duty were joined to identify the accused. The witness has further deposed that the Investigating Officer was also having photographs of these accused persons and has voluntarily explained that he had obtained these photographs from Pardeep Sarkar. He has admitted that when the accused Hari Ram, Ravi and Sunil were apprehended they did not resist their arrest and cooperated and has voluntarily explained that only accused Ashok tried to run away and he had to chase him till his roof to apprehend him. The witness has also admitted that no public witness had been joined during the apprehension of accused Hari Ram, Ravi, Ashok and Sunil. He has further admitted that no public witness was joined at the time when they were interrogated and when their disclosure statements were recorded. The witness has also admitted that the spot of the incident was known to the Investigating Officer and also to him and other members from the very beginning even before the arrest of accused persons. He has denied the suggestion that the accused Hari Ram, Ravi, Ashok and Sunil did not make any disclosure statements to the Investigating Officer or that the accused Hari Ram, Ravi, Sunil and Ashok did not point out any place of incident to the Investigating Officer. The witness has further denied the suggestion that all documentations were done while sitting in the Police Station and he only signed on the asking of the Investigating Officer or that the disclosure statements of all the accused Hari Ram, Ravi, Sunil and Ashok were recorded by the Investigating Officer of his own only to work out a blind case. The witness has also St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 65 denied the suggestion that he is unable to give any details regarding the investigations conducted on 23.08.2012 because he had never participated in the same or that no recovery of clothes was got done by the accused in his presence and it is for this reason that he was unable to give the details regarding the said recovery relating to Hari Ram in his examination in chief. (81) PW33 Inspector Tilak Chand is the Investigating Officer of this case. He has deposed that on 23.08.2012 he was posted as Inspector Investigation at Police Station Aman Vihar, Delhi and on that day at about 6.40AM he received DD No. 9A copy of which is Ex.PW1/B on which he alongwith SI Karambir reached at Sanjay Gandhi Hospital where one person was brought to the hospital as brought dead. He has further deposed that it was informed that the said person was got admitted by HC Krishan Kumar of PCR official. According to the witness, he took the cursory search of the dead body but no article/ document was found which could disclosed his identity. He has also deposed that prior to his reaching SI Karambir was already present who was on emergency duty, who had initially received the information and SI Karambir handed over the MLC of the deceased to him. He has testified that he called SI Somveer Incharge PP Prem Nagar of Police Station Aman Vihar on which he (SI Somveer) alongwith staff came in Sanjay Gandhi Hospital. According to him, the built of the body was of about 2025 years old and of well built and there were injury marks all over the body. He has further deposed that on the right arm, a name Shakti Rita was engraved and there was a mark of 'OM' St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 66 on the upper palm of the right hand of the dead body and the deceased was wearing maroon colour T Shirt and black colour half pant. The witness has further deposed that he called the Crime Team and the photographer in the Emergency Ward wherein photographer of the Crime Team took the photographs of the body and the Incharge of the Crime Team inspected the body after which it was sent to the mortuary of SGM Hospital through SI Karamvir. He has also deposed that thereafter he contacted the Incharge of the PCR who had brought the body in the hospital and asked him about the place from where the injured was taken to the hospital. According to the witness, after coming to know the spot, he and other staff reached the spot i.e. Mundka Railway Station, North Side, east corner of the platform where PCR Incharge was found present there who showed him the place from where he took the injured to the hospital. He has further deposed that huge quantity of blood was lying at the spot and thereafter he called the photographer and the crime team at the spot also. According to the witness, Incharge of the Crime Team inspected the spot and photographer of the Crime Team took the photographs of the spot from different angle. The witness has also deposed that he also inspected the spot and towards Casting Yard blood was also lying as well as inside the Casting Yard. He has testified that from the persons who were present on the railway platform, nobody could disclose about the incident. According to the witness thereafter he contacted the Manager of Casting Yard and asked him about the employees who were on night duty on which he (Manager) St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 67 handed over list of the employees who were on night duty. He has testified that thereafter as per the information received from Manager, the electrician namely Dev Dutt Sharma who was on night duty was called by him and recorded his statement which is Ex.PW2/B. He has proved having made his endorsement on his statement vide his endorsement Ex.PW33/A and prepared the rukka and handed over the same to HC Shiv Pal and sent him to the Police Station for registration of the case. The witness has also deposed that thereafter he prepared rough site plan in two parts, one of outside of the Casting Yard which is Ex.PW33/B and other was of inside the Casting Yard which is Ex.PW33/C. He has also deposed that thereafter he lifted blood stained earth and earth control, blood stained grass and earth control from seven spots where blood was lying and the same were kept in separate plastic dibbies and those dibbies were given S.No. A1 to A7 and and earth control also lifted from the seven spots which were also kept in separate plastic dibbies and were given S.No. EC1 to EC7. He has proved that above said were sealed with the seal of TC and were taken into possession vide seizure memos Ex.PW5/A to Ex.PW5/G. He has testified that in the meantime HC Shiv Pal came there and handed over the copy of FIR and original rukka to him.
(82) The witness has further deposed that thereafter Pradeep Kumar Sarkar handed over the attendance register of the employees of night shift, which was taken into possession vide memo Ex.PW5/J which attendance St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 68 register is Ex.PX. He has proved having lifted one pair of plastic chappal which was lying at the spot, the same were also converted into pullanda and sealed with the seal of TC and was taken into possession vide memo Ex.PW5/A which seal after use was handed over to Pradeep Sarkar. He has also deposed that thereafter on that day he alongwith other police staff returned to the Police Station where he deposited the case property in the Malkhana. According to him, on that day he prepared a Hue and Cry Notice regarding UIDB and the information was loaded on Zip Net and was sent to CRO and NCRB etc. but no clue found to establish the identity of the deceased. He has testified that on 24.08.2012 the Hue and Cry Notice regarding UIDB were pasted in the nearby areas for the purpose of identification of dead body but no clue regarding the identification of the dead body was found.
(83) The witness has further deposed that on 25.08.2012 he received information about one Ravi Rai involved in the present case and he along with SI Somvir, SI Karamvir and other staff reached at Bhagya Vihar, Village Rani Khera near Jain Public School in pursuant to the secret information which was having with him. He has also deposed that he had shared the information with other staff and at the instance of secret informer, the accused Ravi Rai was arrested from near Jain Public School in between 4.30 to 5.00PM, vide memo Ex.PW29/A, his personal search was carried vide memo Ex.PW29/B and his disclosure statement was recorded vide Ex.PW29/C. He has also deposed that in pursuance of St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 69 disclosure statement of accused Ravi Rai and at his instance accused Gurcharan, Dharamender @ Shiv Kumar and Jai Singh were arrested from Prem Nagar and Nangloi vide memos Ex.PW29/D1 to Ex.PW29/D3 respectively; their personal search was carried out vide memos Ex.PW29/D4 to Ex.PW29/D6 respectively and their disclosure statements were recorded vide Ex.PW29/D7 to Ex.PW29/D9. The witness has testified that thereafter the accused Ravi Rai got recovered his dress of Swastik Security blood stained from his room where he was residing and he converted the same into a sealed pullanda sealed with the seal of TC and was taken into possession vide memo Ex.PW29/E1. He has also deposed that thereafter accused Gurcharan got recovered his dress of Swastik Security blood stained from his room where he was residing and he converted the same into a sealed pullanda sealed with the seal of TC and was taken into possession vide memo Ex.PW29/E2. According to the witness, the accused Dharmender got recovered his dress of Swastik Security blood stained from his room where he was residing and converted the same into a sealed pullanda sealed with the seal of TC and was taken into possession vide memo Ex.PW29/E3. He has further deposed that accused Jai Singh got recovered his dress of Swastik Security blood stained from his room where he was residing and he converted the same into a sealed pullanda sealed with the seal of TC and was taken into possession vide memo Ex.PW29/E4. He has proved that the accused Ravi Rai took St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 70 them to the house of Ashok Kumar their Supervisor but his room was found locked and pointing out memo in this regard was prepared which is Ex.PW29/F. The witness has further deposed that thereafter all the above four accused took them to Casting Yard and pointed out the place of incident vide pointing out memo Ex.PW6/A to Ex.PW6/D. He has also deposed that accused Ravi Rai got recovered one blood stained danda and an iron pipe and one broken danda from the back side of security post situated at Casting Yard which were lying behind the security post. He has proved that all the three were sealed with the seal of TC and were taken into possession vide memo Ex.PW5/H. He has further deposed that thereafter he alongwith the police party and all the accused persons returned to the Police Station where he deposited the case property with MHC(M). The witness has testified that on next day accused persons were produced before the Ld. Illaqa Magistrate from where they were sent to Judicial Custody. (84) The witness has also deposed that on 28.08.2012 he again proceeded for the investigation of this case and he alongwith SI Karambir and HC Jawahar Singh went to Agar Nagar ABlock around 5.005.30PM in the search of other accused persons in pursuance to the secret information which was received by him. He has also deposed that the secret informer met them and informed about the accused Hari Ram to him and thereafter on the service road of A Block of Agar Nagar, Prem Nagar accused Hari Ram was arrested vide memo Ex.PW30/C; his personal search was carried out vide memo Ex.PW30/D and his disclosure statement was recorded St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 71 vide Ex.PW30/E. The witness has further testified that thereafter accused took them to the place of incident and pointed out the place of incident vide pointing out memo Ex.PW30/E1. According to the witness, accused Hari Ram took them to his house from where he produced his blood stained dress of Swastik Security, which was converted into pullanda and was sealed with the seal of TC and taken into possession vide memo alongwith pointing out Ex.PW30/F. He has further deposed that thereafter he alongwith the accused returned to the Police Station where he deposited the case property with the MHC(M) and recorded the statements of various witness and relieved them whereas the accused was put in the lock up. (85) He has further deposed that on 29.08.2012 one Sulochana Sundriyal came to the Police Station and handed over to him the work order of IJM India (Infrastructure Ltd.) which he took into possession vide memo Ex.PW4/C and the copy of work order was Ex.PW4/B. The witness has also deposed that during investigation the address of the coaccused Sunil was relieved and he alongwith SI Sumeet, HC Jawahar and other staff went to his house in Village Hidayat Pur, Police Station Chand Hat, Distt. Palwal Haryana but he was not found present there. According to the witness, while they were returning to Delhi, on the way in Palwal itself they received information that accused Sunil would go to his office i.e. East of Kailash in the office of Swastik Security to collect his salary. The witness has further deposed that on this information on 06.09.2012 he along with staff reached at Sant Nagar, East of Kailash at about 5.30PM and the secret informer was St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 72 with them. He has also deposed that the secret informer pointed out towards the accused Sunil on which he was apprehended and was arrested vide memo Ex.PW28/A, his personal search was carried out vide memo Ex.PW28/B and his disclosure statement was recorded vide Ex.PW28/C. According to him, from the personal search of the accused Sunil, from his pocket four visiting cards showing Sunil Kumar, (Area Manager, Swastik detective and Security Service) were recovered which visiting cards were taken into possession vide memo Ex.PW33/D which visiting cards are collectively Ex.PW33/D1. He has also deposed that thereafter the accused Sunil took them to his house and got recovered his blood stained clothes which he was wearing at the time of incident. The witness has testified that on the shirt of the accused Sunil, there was a tag of Killer Fabric Material Construction and his clothes were converted into pullanda and sealed with the seal of TC and was taken into possession vide memo Ex.PW28/D. He has also deposed that thereafter on that day they came back to the Police Station where he deposited the case property with the MHC(M) and the accused Sunil was produced before the court concerned. (86) The witness has further deposed that on 11.09.2012, he prepared the brief facts Ex.PW33/E; filled up form 25.35(1)(b) which is Ex.PW33/E1 and got conducted the postmortem on the body. According to the witness, during the investigation palm and finger prints of both hands of the body which was taken by SI Karambir in the Mortuary was got St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 73 checked from Finger Print Bureau but was not found matching with any of the prints available and hence the identity of the deceased could not be established. He has further deposed that till then body could not be identified so the body was sent to Electric Crematorium at Sarai Kale Khan vide request for cremation Ex.PW28/F and the body was received by Incharge of Electric Crematorium vide CR No. 2485 dated 11.09.2012. He has also deposed that during investigations he collected the Customer Application Forms, Cell ID Record and call details of the mobile number of the accused persons which they were using during the relevant period of investigation. The witness has also deposed that during that time he recorded statement of witnesses and thereafter he was transferred from Police Station Aman Vihar and he handed over the case file to the MHC(R). He has proved the hue and cry notice which were in Hindi and English which are Ex.PW33/F and Ex.PW33/F1. According to the witness, on the direction of the the court, he collected the FSL reports, the biological examination report is Ex.PW33/G and the serological examination report is Ex.PW33/H. (87) The witness has correctly identified the accused persons in the Court and the case property i.e. one black color pant and one checkdar shirt with white base as got recovered by accused Sunil, which Pant is Ex.P1 and shirt is Ex.P2; one pant of black color and one stripped shirt with the sticker of Swastik Security as got recovered by accused Ravi Rai, which St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 74 Pant is Ex.P3 and shirt is Ex.P4 respectively; one stripped shirt with the sticker of Swastik Security as got recovered by accused Gurcharan, which shirt is Ex.P5; one stripped shirt as got recovered by accused Dharmender @ Shiv Kumar, which shirt is Ex.P6; one black color lining pant and one stripped shirt with the sticker of Swastik Security as got recovered by accused Jai Singh, which pant is Ex.P7 and the shirt is Ex.P8; an iron pipe along with T rod/ elbow which was got recovered by accused Ravi Rai, which is Ex.P9; a wooden danda/ lathi as the one which was recovered by accused Ravi Rai, which is Ex.P10; pieces of bamboo stick as the one which was recovered by accused Ravi Rai which is Ex.P11; blood stained earth along with earth control as the one which was lifted from the spot of the incident which are Ex.P12 to Ex P18 respectively; one pair of plastic chappals of black color the same as lying at the spot of the incident which are collectively Ex.P19; one pant of black color and one stripped shirt with the sticker of Swastik Security as got recovered by accused Hari Ram which Pant is Ex.P20 and shirt is Ex.P21 respectively; one mehroon colour T shirt and black colour half pant belonging to the deceased which Tshirt is Ex.P22 and half pant is Ex.P23.
(88) In his crossexamination by the Ld. Defence Counsels the witness denied the suggestion that he had taken the signatures of Dev Dutt on blank papers which was converted into his statement and rukka only to work out the blind murder case. He has further denied the suggestion that St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 75 the rukka was prepared and the FIR was recorded antedatedly on his instructions. According to the witness, when he reached the spot he came to know about the identity of the accused persons. The witness has also deposed that only the photograph of Ashok was given to him but not of the other accused. He has testified that at the time of apprehension and arrest of accused other than Ashok, he did not join any Manager or employee of either the Casting Yards or the security agency who could identify the accused persons. He has admitted that the uniform of the security guards/ accused were being issued from the office of the security agency. He does not collect the addresses of the accused other than Ashok and has voluntarily explained that the said address were not available with the security agency. According to the witness, he did not inform the SHO of the Police Station concerned where Swastic Security Agency was having the office that the addresses of the security guards not being maintained by the agency which was unregistered and no police verification of the guards was being done. He has denied the suggestion that he made no complaint because the security agency had given him the names and addresses of all the accused after which the accused were called to the Police Station by him or that on his calling the accused had come to the Police Station where they were falsely implicated in the present case to work out the same. He has admitted that no public witnesses had signed any of the documents relating to arrest, personal search, disclosure statement and seizure memo of clothes or that all documentation was done by him while sitting in the Police St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 76 Station and the accused were pressurized and compelled to sign on the same. The witness has also denied the suggestion that accused Dharmender, Ravi Rai, Hari Ram, Ashok, Sunil, Jai Singh and Gurcharan did not make any disclosure statement regarding their involvement in this case or that the said statement were recorded by him of his own. He has further denied the suggestion that he had collected the uniforms of the accused persons from the office of security agency and in order to work out the present case blood was sprinkled on the same after which the recovery of the clothes were planted upon the accused Sunil, Dharmender, Jai Singh, Hari Ram, Ravi Rai and Gurcharan. He has admitted that the spot of incident was opened to sky. According to him, there were gaps in the boundary wall from where anybody can enter the Casting Yard. He has further deposed that even prior to that incident large number of unauthorized persons had been apprehended inside the Casting Yard indulging into alcoholism and taking of drugs. He has testified that on the day of the incident, there was rain in the night and has voluntarily explained that it was raining at about 12.0012.30 midnight. The witness has admitted that when they reached the spot on receipt of the call also it was raining and has voluntarily explained that it was drizzling at that time. He has denied the suggestion that the blood and scene of crime had been washed off on account of the rains and has voluntarily explained that there was very little rain and large amount of blood was still on the spot. He has admitted that the dandas and the angle/ elbow were got recovered from an St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 77 open place in the yards. The witness has also admitted that the lathees recovered had been given to the guards/ accused by the office. He has denied the suggestion that there were many other pipes and dandas lying there at the spot. According to him, no finger prints were lifted from the danda or the elbow pipe and has voluntarily explained that there was no requirement as the surface was rough and it was not possible to lift finger prints from there. He has further denied the suggestion that he had lifted the blood from the spot which he later sprinkled on the clothes/uniform which were planted upon the accused persons to work out the case. He has also denied the suggestion that no place of incident was pointed out by the accused persons or that he prepared the pointing out memos of his own only to create evidence in the present case. He has admitted that the identity of the deceased could not be established till date or that he had not been fair and independent in his investigations.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(89) After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. All the accused namely Dharmender @ Shiv Kumar, Ravi Rai, Gurcharan, Jai Singh, Hari Ram, Sunil Kumar and Ashok have stated that they are innocent and have been falsely implicated in the present case and they have nothing to do with the alleged incident. However, the accused have not examined St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 78 any witness in their defence.
FINDINGS:
(90) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition No. witness Public Witnesses: 1. Smt. Sulochna This witness has proved the following aspects:
Sundriyal (PW4) 1. That she is running a Security Agency under the name and style of Swastik Detective and Security Services from 187, GK House, Room No. 211, Sant Nagar, East of Kailash, New Delhi65.
2. That she is having 100110 guards and she made an agreement with IJM Infrastructure on 01.02.2012 for giving services of eleven guards to them and the validity period for the contract was from 01.02.2012 to 31.01.2013.
3. That she had provided eleven guards namely Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram and others and two supervisors namely Ashok and Sunil to that company on 01.02.2012.
4. That from 01.02.2012 till 21.08.2012 one gunman Nepal Singh was also put on duty but on account of the complaint received from the company regarding theft, she removed the gunman from 21.08.2012.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 79
5. That from 22.08.2012 Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram were posted as guards in the company.
6. That Sunil Kumar was the Security Supervisory Officer who used to go and check their duties on day and night.
7. That on the intervening night of 21/22.08.2012 both Ashok Kumar and Sunil Kumar went for Supervisory Duty to IJM infrastructure.
8. That in the morning, it was the police who informed her about the incident.
9. That she handed over to them the ID proof of Ashok along with photograph of Ashok which is Ex.PW4/A and copy of the contract/work order of her firm with the company which is Ex.PW4/B (running into five pages).
10. That the Investigating Officer seized the copy of the contract/work order vide memo Ex.PW4/C after which her statement was recorded.
2. Sh. Dev Dutt He is the complainant in the present case on whose Sharma (PW5) statement the present case was registered. He has deposed on the following aspects:
1. That he is employed as an electrician at IJM Infrastructure Ltd. and for the last more than one year he had been posted at Casting Yard of the company adjacent to Mundka Railway Station.
2. That in the yard apart from the Incharge Pardeep Sarkar, the security guards from the Swastik Security Agency, Nehru Place remained present.
3. That during the day fourfive security guards remained present whereas at night sixseven security guards remained present in the Casting Yard for security of the goods kept in the yard and during the day the other staff of the company also stays in the yard.
4. That on 2223.08.2012 he was on duty at Casting Yard from 8PM to 8AM and he came to the company office at about 8 PM on 22.08.2012.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 80
5. That at that time five guards of the Swastik Security Agency were present along with two fields officers were on duty and the five security guards namely Ravi Rai, Hari Ram, Jai Singh, Gurcharan and Dharmender and field officers Ashok and Sunil were on duty.
6. That on that day there was no electricity in the yard on account of the fact that generator was not working on which he went towards the generator at around 1212:30 AM and tried to start the same.
7. That at that time it was drizzling but the generator did not start.
8. That Gurcharan accompanied him and they tried to put oil in the generator to start the same but while they were coming back from generator room towards the office room, they heard loud voices from a distance of about 100150 meters and shouts of chorchor.
9. That he along with Gurcharan reached the spot from where they heard the voices and when they reached there, there was no body else except the four guards Dharmender @ Shiv Kumar, Ravi, Jai Singh, Hari Ram and two field officers namely Sunil Kumar and Ashok whereas Gurcharan was with him.
10. That when he asked them as what had happened, they said that there was a thief who had run away "chor tha aur bhag gaya".
11. That thereafter he returned back to his office and it was raining outside, so he went to his office and slept there.
12. That at about 6:00 AM on the next morning, he woke up and tried to talk to his Manager and asked him to call some mechanic to repair the generator but he (Manager) did not pick up the phone after which he returned to his house at about 6:307AM.
13. That when he reached at his house, he received a telephone call from his office/ yard and he was called back on which he returned back to his office St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 81 at about 12:30 PM where police met him.
14. That he came to know that a murder had taken place in a yard.
15. That the document Ex.PW2/B bears his signatures at point A.
16. That police lifted the blood earth and the earth control from the eastern side of the railway station name board and kept the same in a plastic container and sealed the same and seized vide Ex.PW5/A.
17. That Police also lifted the blood stained earth and the earth control from the different place near the railway station name board and kept the same in a plastic container and sealed the same and seized the same vide Ex.PW5/B.
18. That police also lifted the blood stained grass, earth and earth control from the east corner of the metal streets near the boundary wall and kept the same in a plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/C.
19. That Police also lifted the blood stained earth and the earth control from the place near the bushes south side of the Sanitary post and kept the same in the plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/D.
20. That Police also lifted the blood stained floor and earth control from the first aid room of the yard and kept the same in the plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/E.
21. That the Police also lifted the blood stained Road Pieces and Earth Control from the western side of the Sanitary post and kept the same in the plastic container and sealed the same and seized the same vide seizure memo Ex.PW5/F.
22. That police lifted blood stained road pieces and earth control from the road at east side of the first aid room and kept the same in the plastic container and sealed the same and seized the same vide St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 82 seizure memo Ex.PW5/G.
23. That the pointing out memos Ex.PW5/H, Ex.PW5/I and Ex.PW5/J bear his signatures.
This witness has however, not supported his earlier version on the following aspects:
1. That when he reached the yard, then he had seen four security guards and two field officers with a thin boy and the security guards and field officers were beating him by saying that he was a thief and the said boy was wearing a half sleeves shirt and shouting for the help.
2. That he intervened and saved him from the said beatings and told the security guard and the field officer to kept the said boy in the room and if he was a thief then he be handed over to the police.
3. That thereafter there was peace and the said boy was also seated there after which he went back to his office.
4. That he again went to the guard post where he heard the noise that the said boy had run away from there and thereafter he returned back to his office and slept there.
5. That when he reached at the company office at about 12:30 PM then police showed the photograph of the above said boy to him and he identified the same as the boy who was beaten by the security guards and field officers of the yard and then he came to know that he was declared dead.
6. That the said boy was given beatings by the field officers and security guards of the Casting Yard and the blood was scattered on the road of the yards at different places.
7. That on 25.08.2012 police brought the security guard namely Ravi Rai, Gurcharan, Dharmender @ Shiv Kumar, Jai Singh at JJM Yard gate in his presence and in the presence of deputy Manager Pardeep Satkar and he identified them as the persons who in the intervening night of St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 83 22/23.08.2012 had given beatings to the deceased along with Hari Ram guard and field officer Sunil and Ashok.
8. That thereafter the accused Ravi Rai pointed out the place of incident JJM Casting Yard and pointed out the place were the blood of the deceased had fallen at that spot or at railway station gate near the railway station gate post.
9. That Ravi Rai also pointed out the place where they had given beating to the deceased and also pointed out the Casting Yard boundary where the deceased committed trespassing.
10. That the accused Ravi Rai also pointed out the road near sanitary post where he pointed out the iron pipes or at his instance one iron pipe and one bamboo stick having blood stains were recovered.
11. That the accused Ravi Rai disclosed that he along with his associates gave beating to the deceased by the said weapons or caused his death or that the police sealed the iron pipe, bamboo stick in two pieces in the three separate pullandas and sealed the same with the seal of TC.
12. That accused Gurcharan, Dharmender @ Shiv Kumar and Jai Singh also pointed out the places where the blood was found and where they gave beatings to the deceased or that one pair of slippers were seized by the police in his presence or that one attendance register of security guard from the security post were seized by the police.
13. That on 28.08.2012 accused Hari Ram was brought at their company when he identified him as the person who also gave beating to the deceased or that he (Hari Ram) also pointed out the places where the blood was found.
3. Pardeep Kumar This witness has been working as a Deputy Manager at Sarkar (PW6) IJM India Infrastructure Ltd. situated at Mundka Railway Station where they were managing the Casting Yard. He has deposed on the following aspects:
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 84
1. That on 23.08.2012 he came at his office for his duty at about 9:159:30 AM and when he was sitting in his office, one security guard came to his office and informed him that police reached at the back side of the Casting Yard.
2. That he also went to the back side of the Casting Yard where saw that police personals were present there and he was asked by the police to call the security guards on which he called the owner of the security guard and the electrician Dev Dutt Sharma was also called.
3. That at about 12:00 12:30 PM (Noon) Dev Dutt Sharma also reached at the spot and police conducted their proceedings and Dev Dutt Sharma was with them but no proceedings were conducted by the police personals in his presence.
4. That they asked about the functioning of Casting Yard from him.
5. That police also lifted one wooden stick and one iron pipe on the spot and took the possession of the same.
6. That police informed him that one boy was found in an injured condition at the Mundka railway station platform and who was declared dead by the doctors while going to the hospital.
7. That photographer took the photographs of the blood spots at the spot.
He has, however, not supported his earlier version given to the police on the following aspects:
1. That he had seen the blood spots on the road between security post and first aid room at different places.
2. That he had also seen the blood on the grass and on the ground near bushes near the Casting Yard boundary wall and at the Mundka railway station at different places.
3. That Dev Dutt Sharma identified the boy in a photograph at about 12:30 PM when he reached at St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 85 Casting Yard before the police and stated that the said boy in the photograph was beaten by the security guards and field officials in the last night in the Casting Yard.
4. That police recorded statement of Dev Dutt Sharma in his presence and put his signatures in the presence of PW6 Sh. Pradeep Kumar Sarkar.
5. That the police lifted the blood stains from various spots and seized the same.
6. That Ravi Rai identified the place at IJM Casting Yard at all the places from where the blood and earth control were lifted and he also shown the place at Mundka Railway Station where he gave beatings to the deceased boy along with his associates.
7. That at the instance of Ravi Rai, one iron pipe and one Bamboo stick were recovered from the Casting Yard and the blood was found on the same and police seized the same in three cloth pullandas and sealed the same with the seal of TC.
8. That Gurcharan, Dharmender @ Shiv Kumar and Jai Singh also pointed out the places from where the blood stains and samples were lifted and also shown the places where the deceased was given beating by them.
9. That on 07.09.2012 accused Sunil Kumar, field officer of Swastik Security was brought at their Casting Yard by the police and pointed out the Casting Yard and Mundka Railway Station where deceased was apprehended by him and also pointed out the places where the blood was fell down during the beating of the deceased and also pointed out the place where the deceased was thrown after his beating and that police took the possession of attendance register of guards in his presence.
He has however admitted his signatures on Ex.PW5/H, Ex.PW5/I and Ex.PW5/I at point B and on the documents Ex.PW6/A, Ex.PW6/B, Ex.PW6/C, Ex.PW6/D and Ex.PW6/E at point A. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 86
4. Rajesh (PW19) This witness has deposed on the following lines:
1. That he was working in a private company which was in the name and style of Metro Company and the accused Ravi Rai whom the witness has correctly identified in the court was his senior in the said company.
2. That he gave him (Ravi Rai) his I.D. and after some time he left the job of the said company and his ID remained with the said Ravi Rai.
3. That he is not aware whether Rai Rai had got issued a mobile number 9958693180 but states that when he left the job from that company, his ID remained with the said Ravi Rai.
5. Dharamvir He is the elder brother of the complainant Dev Dutt Sharma (PW22) Sharma who has proved that he is working in MTNL office and the mobile number 9868210280 of MTNL was issued in his name which he had given to his younger brother (Dev Dutt Sharma) for his use.
6. Ms. Seema She has turned hostile on the aspect that she is the allottee (PW23) of the mobile No. 8826162441 which number she had given to accused Hari Ram S/o Babu Ram who was residing in A Block, Agar Nagar, Prem NagarIII, Delhi.
7. Jitender Singh This witness has proved the following aspects:
(PW25) 1. That he was having one plot at D59, Bhagya Vihar near Jain Public School wherein three rooms were constructed.
2. That two of the rooms were in his possession and in one of the room he used to tie his cows/ buffaloes and other room was for the purpose of keeping domestic articles.
3. That the third room was rented out to the accused Ravi Raj which was rented out to accused Ravi Raj at a monthly rent of Rs.800/ fivesix months earlier prior to the present incident.
4. That he had not executed any rent agreement and did not issue any rent receipt nor he get the police verification regarding tenancy and after the incident the accused vacated the said room.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 87
8. Sh. Sanjay This witness has turned hostile on the aspect that he got Sharma (PW26) issued mobile No. 8800138157 which was in his name and he had given the same to accused Ashok Kumar for use.
9. Ram Dulare This witness has proved the following aspects:
(PW27) 1. That in the year 2012 he was residing at House No. B90, Aggarwal Colony, village Rani Khera, Delhi.
2. That in the village Rani Khera there was a house which was in the name of the mother of his wife and threefour months prior to the incident of this case, he had given the said room to accused Ashok Kumar, for Rs.800/ per month on the asking of one of his known namely Raj Nath.
3. That when he gave the said room on rent to the accused, no rent agreement was executed nor he issued any rent receipt to the accused.
4. That on 23.08.2012 accused Ashok Kumar left the room since morning and thereafter he did not return.
Witnesses of Medical Record:
10. Dr. Sanjay Kumar This witness has proved that on 23.08.2012 at about Jain (PW17) 6.00AM one injured, unknown was brought to the SGM Hospital by HC Krishan of PCR Official and the injured was attended by JR Dr. Nikhil Bhatt vide MLC No. 14626 which is Ex.PW17/A according to which the patient was brought dead in the casualty.
11. Dr. Manoj He is the Autopsy Surgeon who has proved the postmortem Dhingra (PW32) report of the deceased which is Ex.PW32/A according to which there were following injuries on the body of the deceased:
1. Laceration 6 x 3cm bone deep left parital eminence area,
2. Reddish coloured abrasion 4 x 3cm over front of right knee,
3. Reddish coloured abrasion 4 x 2 cm over front of left knee,
4. Bruise, redish coloured 5 x 3 cm with swelling over mid part of right shin with underlying fracture of mid shaft of right tibia.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 88
He has proved that time since death was within 12 hours prior to preservation in SGMH Morgue and death was due to cranio cerebral damage as a result of blunt force impact under injury no.1 which was sufficient to cause death in ordinary course of nature and was fresh and antemortem at the time of death.
The Autopsy Surgeon has further proved his subsequent opinion in respect of the weapon of offence which is Ex.PW32/B according to which the injuries mentioned in Postmortem Report Ex.PW32/A were possible with the weapons i.e. broken stick, one iron pipe and three bamboo pieces examined by him or by similar one.
12. Dr. Brijesh This witness has proved the MLC of the deceased which is (PW34) Ex.PW17/A according to which BP of the patient was not recordable, pulse was not palpable, B/L chest air entry was absent, CVSS1 and S2 not heard, pupils were bilaterally fixed and dilated and hence the patient was declared 'brought dead on arrival' at 6.00AM and the dead body was sent to Mortuary for postmortem examination.
Nodal Officers:
13. Sh. Chander He is the Nodal Officer from Bharti Airtel Ltd. who has Shekhar (PW20) proved the record pertaining to mobile No. 8800138157, 8826162441 and 9958693180. He has proved the following aspects/ documents:
1. That the mobile No. 8800138157 was issued in the name of Sanjay Sharma S/o Sh. K.K. Sharma, R/o 187, GK house, Sant Nagar, Delhi65, vide Customer Application Form which is Ex.PW20/A;
copy of Driving Licence in support of residence proof which is Ex.PW20/B and the call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW20/C (running into one page).
2. That mobile No. 8826162441 has been issued in the name of Seema Dave W/o Sh. Surender, R/o B426, B Block, Agar Nagar, Prem NagarIII, Suleman Nagar, Delhi vide Customer Application Form St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 89 which is Ex.PW20/D; copy of voter card in support of residence proof which is Ex.PW20/E; call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW20/F (running into one page).
3. That mobile No. 9958693180 has been issued in the name of Rajesh S/o Vijay Ram, R/o 518/15, Mundka Village, Nangloi, Delhi, copy of which is Ex.PW20/G; copy of Voter ID card in support of residence proof which is Ex.PW20/H; call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW20/I (running into two pages).
4. The Cell ID chart which is Ex.PW20/J and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW20/K.
14. Vinod Kumar He is the Nodal Officer of MTNL and has proved the (PW21) summoned record in respect of mobile numbers 9868210280 and 9968495013. He has proved the following aspects/ documents:
1. That mobile No. 9868210280 has been issued in the name of Dharamveer Sharma R/o B73, Gali No.2, Ganga Vihar, Near Gokhulpuri, Delhi94 vide Customer Application Form which is Ex.PW21/A;
copy of Office ID card in support of residence proof which is Ex.PW21/B and the Call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW21/C and Cell ID Chart which is Ex.PW21/D.
2. That mobile No. 9968495013 has been issued in the name of Sunil Kumar S/o Chandan Singh, R/o 187, GK House, Sant Nagar, Delhi65 vide Customer Application Form which is Ex.PW21/E; copy of Driving Lincence and Pan Card in support of residence proof which is Ex.PW21/F and the call details from the period 22.08.2012 to 24.08.2012 which are Ex.PW21/G.
3. The Cell ID Chart which is Ex.PW21/H and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW21/I. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 90 Police/ Official witnesses:
15. HC Rajesh Kumar He is a formal witness being the DD Writer who has (PW1) proved the DD No. 8A copy of which is Ex.PW1/A, DD No. 9A which is Ex.PW1/B and DD No. 11A which is Ex.PW1/C.
16. HC Ajit Singh He is a formal witness being the Duty Officer who has (PW2) proved the copy of FIR which is Ex.PW2/A and the rukka which is Ex.PW2/B.
17. Inspector Vijay He is a formal witness who has proved that he sent the Kumar Kataria exhibits of the case to FSL Rohini, Delhi and a scaled site (PW3) plan was got prepared from the draftsman SI Manohar Lal at the instance of SI Sumit after which the charge sheet was prepared and was got forwarded for trial.
18. HC Surender He is a formal witness being the MHCM who has proved Singh (PW7) entry in register No. 19 vide mud No. 605/12 dated 23.08.2012, mud No. 1607/12 dated 25.08.2012 and mud No. 1633/12 dated 06.09.2012 and mud No. 1650/12 dated 11.09.2012, copies of which are Ex.PW7/A (running into eight pages), Ex.PW7/B (running into seven pages), Ex.PW7/C (running into two pages) and Ex.PW7/D. He has also proved the RC No. 212/21/12, copy of which is Ex.PW7/E (running into two pages), RC No. 211/21/12, copy of which is Ex.PW7/F and copy of the FSL receipt No. FSL2012/B7805 which is Ex.PW7/G.
19. Ct. Om Prakash He is a formal witness who has proved that on 30.10.2012 (PW8) he received exhibits along with sample seal through RC No. 212/21/12 copy of which is Ex.PW7/E on which he deposited the same with the FSL, Rohini vide receipt Ex.PW7/G.
20. Ct. Aman (PW9) He is also a formal witness being the Special Messenger who has proved that on 23.8.2012 he had delivered the copy of FIR (Special Reports) to the Ld. MM and senior officers.
21. Ct. Pradeep He is a formal witness being the Computer Operator who (PW10) has proved that on 23.8.2012 at about 3:05 PM Duty Officer HC Ajit Singh handed over him a rukka on the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 91 basis of which he typed an FIR No. 240/2013 through CIPA System and handed over the copy of the FIR along with rukka to Duty Officer.
22. Lady Ct. Sunita He is a formal witness being the PCR Official who has Yadav (PW11) been proved the PCR Form which is Ex.PW11/A.
23. HC Ram Bhagat He is also a formal witness being the DD Writer who has (PW12) proved having recorded the DD No. 7A dated 23.08.2012 copy of which is Ex.PW12/A.
24. HC Krishan He is a formal witness being the PCR Van Incharge who (PW13) has proved that on 23.8.2012 at about 4:30 AM he received a call that one man was lying unconscious near Mundka Railway Station Gate No. 15, Delhi on which he reached the spot and found one person in unconscious condition with injury on his head after which he shifted the injured to Sanjay Gandhi Hospital.
25. Ct. Kamal (PW14) He is a formal witness being the Crime Team Photographer who has proved having taken the photographs of the scene of crime which are Ex.PW14/A1 to Ex.PW14/A30 and negatives of the same which were collectively Ex.PW14/B.
26. ASI Ajeet (PW15) He is a formal witness being the Crime Team Incharge who has proved having visited the scene of crime and prepared the Crime Team Report which is Ex.PW15/A.
27. SI Manohar Lal He is a formal witness being the Draftsman who has (PW16) proved having prepared the scaled site plan which is Ex.PW16/A.
28. HC Shiv Pal This witness has proved the following aspects:
(PW18) 1. That on 23.8.2012 while he was posted at Police Station Aman Vihar a PCR call was received that a person was lying unconscious near Mundka Railway Station on which he joined the proceedings with the Investigating Officer and other staff.
2. That he reached at Sanjay Gandhi Hospital where an unknown boy was found dead and thereafter he reached the spot i.e. Mundka Railway Station and also in IJM Casting Yard where blood spots were found.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 92
3. That Inspector Tilak Chand recorded the statement of eye witness Dev Dutt Sharma and prepared a rukka which he handed over to him for getting the FIR registered on which he took the same to the Police Station and get the FIR registered.
29. SI Shri Bhagwan This witness has proved the apprehension and arrest of the (PW24) accused Ashok Kumar from his native place at Village Hathnasa, Rai Bareilly. He has proved the following documents:
Ex.PW24/A Arrest memo of accused Ashok Kumar
Ex.PW24/B Personal search memo of accused Ashok
Ex.PW24/C Disclosure statement of the accused Ashok
Ex.PW24/D Pointing out memo of the place of incident
30. SI Sumit Kumar This witness has joined the investigations along with
(PW28) Inspector Tilak Chand who has proved the following
aspects:
Ex.PW28/A Arrest memo of accused Sunil Kumar
Ex.PW28/B Personal search memo of accused Sunil
Ex.PW28/C Disclosure statement of accused Sunil
Ex.PW28/D Seizure memo of clothes of the accused
Ex.PW28/E Seizure memo of exhibits of the deceased
Ex.PW28/F Electric Crematorium Receipt
31. SI Somveer This witness has joined investigations along with
(PW29) Investigating Officer Tilak Chand and has proved the
following documents:
Ex.PW29/A Arrest memo of accused Ravi Rai
Ex.PW29/B Personal search memo of accused Ravi
Rai
Ex.PW29/C Disclosure statement of accused Ravi Rai
Ex.PW29/D1 Arrest memo of accused Gurcharan
Ex.PW29/D2 Arrest memo of accused Dharmender
Ex.PW29/D3 Arrest memo of accused Jai Singh
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 93
Ex.PW29/D4 Personal search memo of accused
Gurcharan
Ex.PW29/D5 Personal search memo of accused
Dharmender
Ex.PW29/D6 Personal search memo of accused Jai
Singh
Ex.PW29/D7 Disclosure statement of accused
Gurcharan
Ex.PW29/D8 Disclosure statement of accused
Dharmender
Ex.PW29/D9 Disclosure statement of accused Jai Singh
Ex.PW29/E1 Seizure memo of the clothes of accused
Ravi Rai
Ex.PW29/E2 Seizure memo of the clothes of accused
Gurcharan
Ex.PW29/E3 Seizure memo of clothes of accused
Dharmender
Ex.PW29/E4 Seizure memo of clothes of accused Jai
Singh
Ex.PW29/F Pointing out memo by accused Ravi Rai to
the house of accused Ashok Kumar
Ex.PW6/A to Pointing out memo of the place of incident Ex.PW6/D by all the accused Ex.PW5/H Seizure memo of blood stained danda, iron pipe and one broken danda
32. SI Karamveer This witness has visited the spot of the incident pursuant to (PW30) the information and has also joined investigations with Inspector Tilak Chand. He has proved the following documents:
Ex.PW30/A DD No. 6 PP
Ex.PW30/B Palm and finger impressions of the hands
of the deceased
Ex.PW30/C Arrest memo of accused Hari Ram
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 94
Ex.PW30/D Personal search memo of accused Hari
Ram
Ex.PW30/E Disclosure statement of accused Hari
Ram
Ex.PW30/E1 Pointing out memo of the place of incident
Ex.PW30/F Seizure memo of clothes of the accused
Hari Ram
33. HC Jawahar This witness has joined the investigations with the
Singh (PW31) Investigating Officer Inspector Tilak Chand and has proved
the apprehension and arrest of the accused Ravi Rai, Hari Ram, Sunil Kumar and Ashok Kumar.
34. Inspector Tilak He is the Investigating Officer of the present case who has Chand (PW33) proved the following documents:
Ex.PW1/A DD No. 9A
Ex.PW2/B Statement of Dev Dutt Sharma
Ex.PW33/A Endorsement on the statement of Dev Dutt
Sharma
Ex.PW33/B Rough site plan (Outside the Casting
Yard)
Ex.PW33/C Rough site plan (Inside the Casting Yard)
Ex.PW5/A to Seizure memos of the exhibits lifted from
Ex.PW5/G the spot of incident
Ex.PW29/A Arrest memo of accused Ravi Rai
Ex.PW29/B Personal search memo of accused Ravi
Rai
Ex.PW29/C Disclosure statement of accused Ravi Rai
Ex.PW29/D1 Arrest memo of accused Gurcharan
Ex.PW29/D2 Arrest memo of accused Dharmender
Ex.PW29/D3 Arrest memo of accused Jai Singh
Ex.PW29/D4 Personal search memo of accused
Gurcharan
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 95
Ex.PW29/D5 Personal search memo of accused
Dharmender
Ex.PW29/D6 Personal search memo of accused Jai
Singh
Ex.PW29/D7 Disclosure statement of accused
Gurcharan
Ex.PW29/D8 Disclosure statement of accused
Dharmender
Ex.PW29/D9 Disclosure statement of accused Jai Singh
Ex.PW29/E1 Seizure memo of the clothes of accused
Ravi Rai
Ex.PW29/E2 Seizure memo of the clothes of accused
Gurcharan
Ex.PW29/E3 Seizure memo of clothes of accused
Dharmender
Ex.PW29/E4 Seizure memo of clothes of accused Jai
Singh
Ex.PW29/F Pointing out memo by accused Ravi Rai to
the house of accused Ashok Kumar
Ex.PW6/A to Pointing out memo of the place of incident Ex.PW6/D by all the accused Ex.PW5/H Seizure memo of blood stained danda, iron pipe and one broken danda Ex.PW30/C Arrest memo of accused Hari Ram Ex.PW30/D Personal search memo of accused Hari Ram Ex.PW30/E Disclosure statement of accused Hari Ram Ex.PW30/E1 Pointing out memo of the place of incident Ex.PW30/F Seizure memo of clothes of the accused Hari Ram Ex.PW28/A Arrest memo of accused Sunil Kumar Ex.PW28/B Personal search memo of accused Sunil St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 96 Ex.PW33/D Seizure memo of visiting cards recovered from the possession of accused Sunil Ex.PW28/C Disclosure statement of accused Sunil Ex.PW28/D Seizure memo of clothes of the accused Ex.PW28/E Seizure memo of exhibits of the deceased Ex.PW28/F Electric Crematorium Receipt Ex.PW33/E Brief facts Ex.PW33/E1 Form 25.35(1)(b) Ex.PW33/F & Hue and Cry notices ExPW33/F1 Ex.PW33/G Biological examination report Ex.PW33/H Serological examination report (91) Coming now to the microscopic evaluation of the evidence against the accused persons.
Medical Evidence:
(92) In so far as the medical evidence on record is concerned, Dr. Sanjay Kumar (PW17) and Dr. Brijesh (PW34) have proved the MLC of the deceased which is Ex.PW17/A prepared by Dr. Nikhil Bhatt according to which on 23.8.2012 at about 6.00AM one unknown injured was brought to the hospital by HC Krishan of PCR official and on examination Dr. Nikhil Bhatt observed that BP was not recordable, pulse was not palpable, B/L chest air entry was absent, CVSS1 and S2 not heard, pupils were bilaterally fixed and dilated and hence the patient was declared 'brought dead on arrival' at 6.00AM and the dead body was sent to Mortuary for St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 97 postmortem examination.
(93) Dr. Manoj Dhingra (PW32) has proved that on 23.08.2012 he alongwith Dr. Vivek Rawat had conducted the postmortem examination on the dead body of unknown person vide postmortem report Ex.PW32/A according to which there were following external injuries on the body of the deceased:
1. Laceration 6 x 3cm bone deep left parital eminence area,
2. Reddish coloured abrasion 4 x 3cm over front of right knee,
3. Reddish coloured abrasion 4 x 2 cm over front of left knee,
4. Bruise, redish coloured 5 x 3 cm with swelling over mid part of right shin with underlying fracture of mid shaft of right tibia.
(94) He has proved that time since death was within 12 hours prior to preservation in SGMH Morgue. He has also proved having opined that the death was due to cranio cerebral damage as a result of blunt force impact under injury no.1 which was sufficient to cause death in ordinary course of nature and was fresh and antemortem at the time of death.
(95) The Autopsy Surgeon Dr. Manoj Dhingra has further proved that on on 26.10.2011 he received an application from the Investigating Officer for seeking subsequent opinion and the Investigating Officer also produced a sealed parcel which was sealed with the seal of TC while seeking the subsequent opinion about weapon of offence i.e. one broken stick, one iron pipe and three bamboo pieces. He has proved having opined that the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 98 injuries mentioned in Postmortem Report Ex.PW32/A were possible with the weapon examined by him or by similar one, which subsequent opinion is Ex.PW32/B. The witness has also identified the case property i.e. an iron pipe attached with an elbow which is Ex.P9; three pieces of broken bamboo stick which pipe is Ex.P10; one danda/ lathee which is Ex.P11. (96) There is no reason to doubt the findings given by the Autopsy Surgeon and hence, I hereby hold that the medical evidence on record is compatible to the prosecution case that the death of the deceased was due to cranio cerebral damage as a result of blunt force impact under injury no.1 (Laceration 6 x 3cm bone deep left parital eminence area) which was sufficient to cause death in ordinary course of nature and that the injuries on the body of the deceased could be possible by the weapon of offence i.e. an iron pipe attached with an elbow, three pieces of broken bamboo stick and danda/ lathee allegedly got recovered by the accused. Forensic Evidence:
(97) The FSL Reports Ex.PW3/G and Ex.PW33/H which are otherwise perse admissible under Section 293 Cr.P.C. according to which blood of Human origin was detected on Ex. A1 (concrete material), Ex.A2 (earth material), Ex.A4 (earth material), Ex.A5 (cemented material), Ex.A6 (concrete material), Ex.A7 (concrete material), Ex.A10b (shirt), Ex.A11b (shirt), Ex.A17a (Tshirt), Ex.A17b (banian), Ex.A17c (Shorts), Ex.A17d (underwear) and Ex.A18 (blood stained gauze cloth piece). St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 99
However, the weapon of offence allegedly got recovered by the accused i.e. iron pipe (Ex.A14) and wooden pieces (Ex.A16) do not show any reaction for human blood. I may observe that no grouping of blood has been detected on any of the exhibits nor any of the exhibits so lifted from the spot were sent for DNA Fingerprinting examination in order to match with the DNA of the deceased or to connect the clothes got recovered by the accused with the blood of the deceased.
(98) This being the background, I hereby hold that the forensic evidence does not help the prosecution in any manner. Employment of the accused with Swastik Security Agency and their duty as the spot - not disputed:
(99) The case of the prosecution is that all the accused i.e. Dharmender @ Shiv Kumar, Ravi Raj, Gurcharan, Jai Singh, hari Ram, Sunil Kumar and Ashok were the employees of Swastik Detective and Security Services who pursuant to an agreement with IJM Infrastructures, were posted as guards and supervisor at the spot of the incident and were on duty. The aspect of employment and duty of the accused persons has been duly proved by Mrs. Sulochna Sundriyal (PW4) and is otherwise not disputed by the accused persons. The Investigating Officer who had first reached the spot of the incident i.e. SI Shree Bhagwan (PW24) had also taken into possession the Duty Register of the employees on duty at the time of the incident which not only confirms and corroborates the record produced by the Security Agency regarding the employment of the accused St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 100 with the Agency but also as regards their posting at the spot and their duty at the time of the incident.
(100) Smt. Sulochna Sundriyal (PW4) has proved that she is running a Security Agency under the name and style of Swastik Detective and Security Services from 187, GK House, Room No. 211, Sant Nagar, East of Kailash, New Delhi65 and is having 100110 guards. She has further proved that she had an agreement with IJM Infrastructure on 01.02.2012 for giving services of eleven guards to them for the period 01.02.2012 to 31.01.2013 pursuant to which she provided eleven guards including Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram and two supervisors namely Ashok and Sunil to that company on 01.02.2012. She has specifically proved that from 22.08.2012 Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram were posted as guards in the company and Sunil Kumar was the Security Supervisory Officer who used to go and check their duties on day and night and on the intervening night of 21/22.08.2012 both Ashok Kumar and Sunil Kumar went for Supervisory Duty to IJM infrastructure. She has also proved having handed over to them the ID proof of Ashok along with photograph of Ashok which is Ex.PW4/A and copy of the contract/work order of her firm with the company which is Ex.PW4/B (running into five pages).
(101) Therefore, under these circumstances I hereby hold that the aspect of employment of the accused Dharmender @ Shiv Kumar, St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 101 Gurcharan, Jai Singh, Ravi Rai, Hari Ram as Security Guards and two supervisors namely Ashok and Sunil at the spot of the incident on the date of incident stands duly proved and established by the prosecution. Constitution of Unlawful Assembly - Not Established:
(102) The case of the prosecution is that all the accused namely Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram, Ashok and Sunil had constituted themselves into an Unlawful Assembly and in prosecution to their common object had inflicted injuries upon the victim thereby causing his death. However, before analyzing the evidence on record the legal position as it exists is briefly discussed as under:
(103) In the case of Rabindra Mahto & Ors. Vs. State of Jharkhand reported in 2006 Cri.L.J. 957 the relationship between Section 149 and Section 120B IPC has been brought out clearly by the Hon'ble Supreme Court as under:
"..... Under Section 149 IPC, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 102 after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, Section 149 makes every member of the common unlawful assembly responsible as a member for the act of each and all merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case......"
(104) In the case of Adalat Pandit & Anr. Vs. State of Bihar, reported in (2010) 6 Supreme Court Cases 469, which was a case where the witnesses had deposed that three accused having lathi but none referring to any over act by them, it was held by the Hon'ble Supreme Court that benefit of doubt can be granted to persons who were present as bystanders without committing any overt acts and cannot be roped in either on the basis of Section 34 or Section 149. There was no evidence that the accused was carrying a spear and witness was making a general statement that all accused persons were holding spears.
(105) In the case of Yunis @ Kariya Vs. State of M.P. reported in 2003 (1) SCC 425 eight accused persons armed with deadly weapons, St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 103 attacked the deceased in broad daylight in a marketplace causing his death and the same was witnessed by several persons, three of whom were eye witnesses and where the testimony of the eyewitnesses was tallying with each other, the oral testimony of the eyewitnesses as well as the medical and other evidence established the commission of crime. The Hon'ble Supreme Court held Section 149 IPC to have been established on the basis of evidence.
(106) In the case of Mukteshwar Rai & Ors. Vs. State of Bihar, and Bhola Rai Kurmi & Ors. Vs. State of Bihar, 1992 SCC (Cri) 349, 1992 Supp (1) SCC 727 where the houses of the victim burnt and two persons charred to death by a mob and two persons were found to be missing and charges under Sections 436 read with 149, 364 read with 149 and 302 read with 149 were framed against the accused who were members of the mob, it was observed by the Hon'ble Supreme Court that specific overt act of actively participating in setting fire and throwing the victims into the fire was disbelieved as there was no evidence adduced showing that the missing persons had been murdered. It was also evident that none of the accused shown to be armed. Therefore on the facts it was held that common object of the unlawful assembly of committing murder was not established. It was further observed that in the absence of any evidence missing persons also cannot also be held to be murdered. However the Hon'ble Supreme Court held that the common object of setting fire punishable under Section 436 read with 149 was established beyond reasonable doubt and therefore the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 104 conviction under Section 302 read with 149 and sentence of life imprisonment was set aside and the sentence under Section 436 read with Section 149 and 364 read with 149 was reduced from 10 years to 5 years. (107) In the case of State of Andhra Pradesh Vs. Rayaneedi Sitharamaiah & Ors. reported in 2010 (4) SCC (Crl.) which was a case where the provision of Section 148 IPC was invoked and there was identification of 45 accused by one solitary witness as the members of the unlawful assembly it was held not safe to place reliance on such a witness and their conviction under Section 148 unsustainable. (108) In the case of Maranadu & Anr. Vs. State by Inspector of Police, Tamil Nadu reported in 2008 (16) SCC 529 on the question of law under Section 149 IPC, the Hon'ble Supreme Court has cautioned against the acceptance of the evidence of the partisan witnesses, particularly in case involving Section 149 IPC and while stating the principles of appreciation of evidence, relied on the case of Masalti Vs. State of U.P. reported in AIR 1965 SC 202, it was observed by the Hon'ble Court that: "....it would be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan, would invariably lead to failure of justice."
We are quite convinced in this case that the evidence of the eyewitnesses, though they were somewhat partisan, was liable to be accepted, excepting against the three St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 105 accused persons who were acquitted. We have given the reasons for acceptance of that evidence and also for the acquittal of three accused persons, who could not be held to be the part of the unlawful assembly...."
(109) In the case of Pandurang Chandrakant Mhatre Vs. State of Maharashtra, reported in AIR 2010 SC (Supp) 204 the Hon'ble Apex Court in a case where the incident took place between two rival political parties and it was the evidence of witnesses that accused armed with sword while others were armed with iron bars and all of them started attacking the deceased with their respective weapons in their hands was truthful and found corroboration from medial evidence, the accused persons whose presence as members of party of assailants was consistently mentioned and their over acts in chasing and assaulting deceased were clearly proved and were liable to be convicted under Section 302 r. w. S 149 whereas other accused persons entitled to benefit of doubt. However, all accused persons were held guilty of offences punishable under S 148 and S 326 read with S
149. In this case the Hon'ble Apex Court enunciated the principle that under Section 149, two ingredients are required to be satisfied. Firstly, there has to be the commission of an offence by any member of an unlawful assembly. Secondly, such offence must have been committed in prosecution of the common object of that assembly or must be such that the members of that assembly knew it to be likely that the offence would be committed. The Hon'ble Court has held as under:
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 106
"65. Section 149 IPC creates a specific and distinct offence. Its two essential ingredients are:
(i) commission of an offence by any member of an unlawful assembly and;
(ii) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew it be likely to be committed."
(110) Similarly in the said case the Hon'ble Apex Court again placed its reliance on the case of Masalti Vs. State of U.P. reported in AIR 1965 SC 202 wherein it had earlier observed that:
".....What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 IPC. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common object specified by the five clauses of Section 141, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive witnesses and had joined the assembly as a matter of idle curiosity St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 107 without intending to entertain the common object of the assembly...."
(111) Further in the case of Musa Khan & Others Vs. State of Maharashtra reported in 1977 SCC (Cri) 164 the Hon'ble Supreme Court had observed that the presence in an assembly of persons does not make the accused a member of an unlawful assembly, unless it is shown by direct or circumstantial evidence that accused shared the common object of the assembly. It was held that:
".....Culpable liability does not arise from mere presence in the assembly, nor does participation in one incident lead to liability for consequences of all the incidents that the unlawful assembly may consequently indulge in - Liability of each individual accused adjudged on facts.
........Thus a court is not entitled to presume that any and every person who is proved to have been present near a riotous mob at any time or to have joined or left it at any stage during its activities is in law guilty of every act committed by it from the beginning to the end, or that each member of such a crowd must from the beginning have anticipated and contemplated the nature of the illegal activities in which the assembly would subsequently indulge. In other words, it must be proved in each case that the person concerned was not only a member of the unlawful assembly at some stages, but at all the crucial stages and shared the common objects of the assembly at all these stages. It is not uncommon that an unruly crowd on the rampage may contain some miscreants who may go beyond the common object and commit adhoc crimes graver that the mob had as its St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 108 objective..."
(112) The Hon'ble Court while having regards to the facts of the case further observed that:
"....On fact, having regard to the background against which the events took place all the four incidents were parts of the same transaction but they were separate incidents in which different members of the mob had participated....... In these circumstances, therefore, the accused who were not present or who did not share the common object of the unlawful assembly at other stages cannot be convicted for the activities of the assembly at those stages. ...."
(113) In the case of Ramappa Halappa Pujar & Ors. Vs. State of Karnataka reported in 2009 (1) SCC (Cri) 250 it was observed that:
".... members of the unlawful assembly can be held liable under Section 149 IPC, if it is shown that they knew beforehand that the offence actually committed was likely to be committed in prosecution of the common object...."
(114) In the case of Kanwarpal & another Vs. State of M.P. reported in AIR 2002 Supreme Court 3690 it was observed that in the case of a free fight, conviction by recourse to S.149 was not permissible unless it is shown that a particular accused caused injuries he could not be convicted. (115) Also, in the case of Dharnidhar Vs. State of Uttar Pradesh reported in (2010) 7 Supreme Court Cases 759 the Hon'ble Apex Court St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 109 while placing its reliance on the case of Sheo Prasad Bhore Vs. State of Assam [(2007) 3 SCC 120], and while analyzing the findings of the Trial Court observed that:
".......The learned Trial Court, besides recording the finding against the accused on motive and referring to the recovery of the sphere, has also, in great detail, dealt with the injuries caused by the accused upon the two deceased. In terms of the medical reports proved by PW 6, (being Ext. K3 and K4), there were four gun shots on the body of each of the deceased and in addition thereto one incised wound near the shoulder of Bahadur Singh and two incised wounds on the neck of Pyare Lal. The medical evidence is clear that these injuries could be caused by gun, sphere and kulhari. The attending circumstances fully support the case of the prosecution. PW1 and PW3, who were present at the different places of occurrence, have frankly stated that they were to intervene and save their brother and father but because of the fear of the gun they could not do so. Having found the above four accused guilty on the strength of Section 302 read with Section 34 of the IPC, the Trial Court held all the 5 accused are guilty of Section 302 read with Section 149 of the IPC for the murder of Pyare Lal. It has been shown in the evidence that after committing the murder of Bahadur Singh, they moved to the fields where Pyare Lal was watching his bajra crop, after having clearly made up their minds and with a common object to kill Pyare Lal. Once they reached the spot, they were joined by Dharnidhar, who also participated in the commission of the crime and in fact, played an active role by snatching the kulhari of the deceased and causing injury on his neck. The said injury and the gun St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 110 injuries proved to be fatal, which ultimately resulted in the death of Pyare Lal on the spot itself. In fact, it is not even expected of the prosecution to assign particular or independent roles played by each accused once they are members of unlawful assembly and have assaulted the deceased persons, which resulted in their death. Every person of such an unlawful assembly, can be held to be liable....."
(116) In the case of Md. Ankoos Vs. Public Prosecutor, High Court of A.P. reported in AIR 2010 SC 566, the Hon'ble Supreme Court has held that:
"....Section 149 IPC creates constructive liability i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly. The legal position is also fairly well settled that because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been affected thereby..."
(117) In the case of State of U.P. Vs. Dan Singh & Ors. reported in (1997) 3 SCC 747 the Hon'ble Supreme Court while placing its reliance on the case of Lalji & Ors. Vs. State of U.P. reported in 1989(1) SCC 437 has observed as under:
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 111
"......Common object of the unlawful assembly can be gathered form the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case". What has happened in the present case is precisely what has envisaged in the explanation to Section 141 I.P.C. With Khima Nand being injured, all hell broke loose. A cry was raised that the doms should be burnt and killed, and this is precisely what happened. the marriage party was assaulted by the villagers. Six of the members of the marriage party were burnt, five of them having been locked inside the house of the only Dom resident of the village whose house was also burnt. Eight others were pursued and then mercilessly beaten and were killed elsewhere in the village. We fail to appreciate how anyone, under the circumstances, can possibly come to the conclusion that an unlawful assembly having the common object of killing the Doms did not exist when fourteen people have been killed without the use of any weapon more lethal than a stick or stone. Considering the number of injuries on the persons who had died, it is evident that a large number of persons must have taken part in the assault. Even if the assembly of villagers was initially lawful, the same, undoubtedly, became unlawful when the riot started after Khima Nand was injured. All the eye witnesses have said that fifty or more villagers had taken part in the attack. Who were members of the assembly will be considered later but what is relevant to note is that a large number of villagers were present, duly armed with lathis and sticks, when the occurrence started and except six people who were burnt, eight others were beaten to death by blows from lathis, sticks an stones. It is difficult to appreciate the conclusion of the High Court St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 112 that, under the circumstances, the attackers probably had a similar object but not a common object.
This brings us to the next question as to who were the persons who were members of this unlawful assembly. it is no doubt true that some of the villagers may have been present at the time of the occurrence who were mere spectators and could not be regarded as being members of the unlawful assembly. It also happens, when people are killed during a riot, there may be a possibility of the incident being exaggerated or some innocent persons being named as being part of the assailants party. This may happen wittingly or unwittingly. But just because there may be some inconsequential contradictions or exaggeration in the testimony of the eye witnesses that should not be a ground to reject their evidence in its entirety. In the cases of rioting, where there are a large number of assailants and a number of witnesses, it is but natural that the testimony of the witnesses may not be identical.
What has to be seen is whether the basic features of the occurrences have been similarly viewed and/or described by the witnesses in a manner which tallies with the outcome of the riot, viz., the injuries sustained by the victims and the number of people who are attacked and killed. Before we deal with the testimony of these witnesses, it will be important to bear in mind that in the present case the conviction is being sought under Section 302 I.P.C. with the aid of Section 149 I.P.C.. The two essential ingredients of this Section are that there must be a commission of an offence by any member of unlawful assembly and that such offence must be committed in prosecution of common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. It is also a wellsettled law (see St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 113 Masalti Vs. State of Uttar Pradesh, AIR 1965 SC 202) that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. In fact as observed in Lalji's case (supra) "while overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under Section 149".
Mr. Lalit is right in submitting that the witnesses would be revengeful as a large scale violence had taken place where the party, to which the eye witnesses belonged, had suffered and it is, therefore, necessary to fix the identity and participation of each accused with reasonable certainty. Dealing with a similar case of riot where a large number of assailants who were members of an unlawful assembly committed an offence of murder in pursuance of a common object, the manner in which the evidence should be appreciated was adverted upon by this court in Masalti's case (supra) at page 210 as follows:
"Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted. This criticism again is not well founded. where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 114 different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 persons. In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected.
Appreciation of evidence in such a complex case is not doubt a difficult task; but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not." One more principle which was laid down in Masalti's case (supra), and which would be applicable here, is that where a "court has to deal with the evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by 2/3 or more witnesses who give a consistent account of the incident. In a sense the test may be described as mechanical; but it cannot be treated as irrational or unreasonable".
(118) The principles of law which broadly emerge from a broad reading of the aforesaid are briefly culled out as under:
➢ Section 149 IPC creates a constructive liability i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act except St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 115 his presence in the assembly and sharing the common object of that assembly.
➢ Two essential ingredients of this Section are that there must be a commission of an offence by any member of unlawful assembly and that such offence must be committed in prosecution of common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
➢ An assembly, which is lawful to begin with, subsequently becomes unlawful. In other words, unlawful intent can develop during the course of the incident at the spot coinstanti. ➢ For determination of the common object of an unlawful assembly the conduct of each of the member of the said assembly before the attack, at the time of attack and thereafter as well as the motive for the crime are some of the relevant facts for consideration. ➢ Common object of the unlawful assembly can be gathered form the nature of the assembly, arms used by them and the behaviour of the assembly at or before the scene of occurrence which inference has to be deduced from the facts and circumstances of each case. ➢ Mere spectators who may be present at the time of the incident cannot be regarded as being members of the unlawful assembly. ➢ Possibility of exaggeration or implication of innocent persons being a part of the assailants party cannot be ruled out which may happen wittingly or unwittingly.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 116 ➢ That there are some inconsequential contradictions or exaggeration in the testimony of the eye witnesses cannot be a ground for rejection of their evidence in its entirety.
➢ In a case of rioting where there are a large number of assailants and a number of witnesses are involved it is only natural that the testimony of the witnesses may not be identical.
➢ The Court is required to ascertain whether the basic features of the occurrences have been similarly viewed or described by the witnesses in a manner which tallies with the outcome of the riot, that is the injuries sustained by the victims and the number of people who were attacked or killed.
➢ In a case where the Court has to deal with the evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two to three or more number of witnesses who give a consistent account of the incident which may be described as mechanical but it cannot be treated as irrational or unreasonable.
➢ It is the duty of the Court to sift the evidence carefully and decide which part of it is true and which is not.
(119) Applying the settled principles of law to the facts of the present case I may observe that all the accused before this Court namely Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Gurucharan, Jai Singh St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 117 and Hari Ram were the Security Guards who had been posted in the area at the spot in order to prevent any unlawful activity whereas accused Sunil Kumar and Ashok were their supervisors. There is no evidence on record to show that they had constituted themselves into an unlawful assembly in order to commit any mischievous or criminal trespass or other offence which is covered under Clause 3 of Section 141 Indian Penal Code.
Rather, on the other hand assuming the allegations made against them that some person had entered in the Casting Yard which was being protected by the Security Guards on duty and the said guards i.e. accused before this Court had given him a thrashing and beaten him to death as correct, then there is nothing on record to show that there was any common object to commit an offence i.e. to cause death of the deceased or to commit any other act which they knew is likely to cause his death in any manner. Rather, it is evident that their main aim was to protect their own premises where they were on duty and handover the trespasser to the police the next day. However, it is evident that the use of force, if any, by these security guards which was used on the deceased for purposes of preventing the commission of an offence (i.e. trespass) proved to be excessive and fatal for the deceased. Now the main question would arise is whether any force was used by the accused before this Court was or there is a possibility of some other person having committed the offence in question which is being discussed separately. However, in so far as the aspect of unlawful assembly is concerned, I hereby hold that the prosecution has not been able to prove St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 118 beyond reasonable doubt that the accused Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram, Ashok and Sunil had constituted themselves into an Unlawful Assembly as contemplated under Section 141 Indian Penal Code.
Identity of the deceased - Not Established till date:
(120) It is an admitted case of both the prosecution and the defence that till date the identity of the deceased has not been established. The case of the prosecution is that in the morning a dead body had been found adjoining the Railway Line Mundka adjoining the Casting Yard which was being guarded by the accused persons and the words 'Shakti Rita' was written on one of the hands and there being no documents of identification recovered from the body of the deceased for about more than nineteen days attempts were made to get the identification of the dead body done and even public notices were issued, despite which nobody claimed the body and admittedly till date the identity of the deceased i.e. who he was and his background has not been established.
Ocular Evidence/ Circumstantial Evidence/ Allegations against the accused:
(121) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 119 bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies. (122) However, unfortunately there is no direct ocular evidence against the accused persons and the entire evidence on record is circumstantial. Rather, Dev Dutt Sharma on whose statement the initial FIR has been registered and is an electrician working with IJM Infrastructure Ltd. employed at the Casting Yard, has in the Court not supported the earlier version given by him to the police on the specific aspect of involvement of the accused in the incident. He has not denied rather has admitted his presence at the spot and also the fact that he was on duty when Gurcharan was with him where he heard the shouts. However, thereafter the witness has given a twist to his earlier version and claims made by him in his first statement to the police which bear his signatures as admitted by him. The other public witnesses examined by the prosecution i.e. Pradeep Sarkar is not an eye witness. He is the Manager of the Casting Yard who had come at the spot in the morning and in whose presence the various investigations had been conducted and who was informed about the incident by Dev Dutt Shamra. He too had turned hostile on the various investigations conducted. The public witnesses Dharambir Sharma (PW22), Seema (PW23), Jitender Singh (PW25), Sanjay Sharma (PW26) and Ram Dulare (PW27) are all formal witnesses who have either proved having given the addresses of the accused persons or the use of their mobile phones St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 120 the electronic data of which is present on record. (123) Dharamvir Sharma (PW22) has proved that he is the allottee of mobile number 9868210280 and that the same is being used by his younger brother i.e. complainant Dev Dutt Sharma.
(124) Ms. Seema (PW23) the user of mobile phone No. 8826162441 has turned hostile. Initially she had claimed to the police that she had given the said mobile to Hari Ram S/o Babu Ram who was residing in A Block, Agar Nagar, Prem NagarIII, Delhi. However, in the Court she has not supported her earlier version given to the police. (125) Sh. Jitender Singh (PW25) has proved that he had rented out his accommodation bearing No. D59, Bhagya Vihar near Jain Public School to the accused Ravi Raj about fivesix months earlier to the present incident at a monthly rent of Rs.800/ per month.
(126) Sh. Sanjay Sharma (PW26) has not supported his earlier version that it was the accused Ashok Kumar who had obtained the mobile no.
8800138157 by using his ID i.e. copy of his driving licence. (127) Sh. Ram Dulare (PW27) has proved that he has given a room at House No. B90, Aggarwal Colony, village Rani Khera, Delhi to the accused Ashok Kumar for Rs.800/ per month on the asking of one of his known namely Raj Nath. He has specifically stated that on 23.08.2012 accused Ashok Kumar left the room since morning and thereafter he did not return.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 121 (128) Now first before coming to the merits of the testimony of the alleged eye witness Devi Dutt Sharma (PW5) who earlier before the police had claimed that he had seen the accused persons beating a young boy who was found dead in the morning has turned hostile. I may observe that where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 122 power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978). (129) Further, in the case of Khuji @ Surender Tiwari Vs. State of Madhya Pradesh reported in 1991 AIR 1853 it has been held by the Hon'ble Apex Court that:
"....... The evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether, but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof......"
(130) Also there is no legal bar to base a conviction upon the testimony of a 'Hostile Witness' if corroborated by other reliable evidence (Ref. Bhagwan Singh Vs. State of Haryana reported in 1976 AIR 202). (131) Applying the settled principles of law to the facts of the present case it is evident that Devi Dutt Sharma who has been examined as PW5 has admitted that he was an electrician working at IJM Infrastructures Ltd. and was present in the Casting Yard adjoining to the Mundka railway Station and was present at the spot during the intervening night when the incident had taken place and was on duty at the time of the incident. He has explained that at the relevant point of time i.e. in the intervening night of 2223.8.2010 it was drizzling and there was no electricity in the Casting St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 123 Yard since the generator was not working on which he went towards the generator room at around 1212:30 AM and tried to start the same. He has explained that at that time the accused Gurcharan was with him and while they were coming back from generator room towards the office room, they heard loud voices from a distance of about 100150 meters and shouts of chorchor on which he along with Gurcharan reached the spot from where the four guards i.e. accused Dharmender @ Shiv Kumar, Ravi, Jai Singh, Hari Ram and two field officers i.e. Sunil Kumar and Ashok found who informed whom informed him that a thief had come who had run away "chor tha aur bhag gaya". He has stated that thereafter they returned to the room and it was next day in the morning he tried to contact his Manager Pradeep Sarkar on telephone but Pradeep Sarkar did not pick up the phone and then he returned back to his house. According to the witness, when he reached at his house, he received a telephone call from his office/ yard and he was informed that a murder took place in the yard. This witness Dev Dutt Sharma has not supported the first version given by him to the police duly bearing his signatures (Ex.PW2/B bearing his signatures at point A) which is the basis of the FIR on the following aspects:
➢ That when he reached the spot on hearing the cries he found the accused persons beating a young boy with lathi/ dandas on which he asked them as to why they were beating the said boy on which he was told by the accused persons that the said boy was a thief. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 124 ➢ That he intervened and saved the said boy from the said beatings and told the security guard and the field officer to keep the said boy in the room and if he was a thief then he be handed over to the police. ➢ That he again heard more cries from the guard room and he came to know that the said boy run away.
(132) This was the first version given by Dev Dutt Sharma to the police vide his statement Ex.PW2/B bearing his signatures at point A which signatures he admits. Now before the Court this witness/ complainant has given a twist to this version stating that when he reached the spot he was told by the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok that there was a thief who ran away. He has admitted his signatures on his statement but has stated that he had made no such statement to the police and the reasons for the same is writ large. He is the colleague of the accused persons working together in the same establishment and were together and was on duty at the given point of time. It is evident that he has tried to save the accused persons particularly when the identity of the deceased has not been established till date.
(133) It is settled law that statement of even a hostile witness can be read into evidence to the extent it supports the case of the prosecution and with regard to the remaining aspect on which he has turned hostile the Court can use the statement for collateral purposes. From the testimony of Dev Dutt Sharma (PW5) the presence of the accused persons namely St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 125 Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok at the spot stand established. It also stands established that the accused Gurcharan was not the person who was present with others but was rather present with Dev Dutt Sharma in the Generator Room and had gone along with him to repair the same. The role of accused Gurcharan can be distinguished from that of the other accused persons particularly Dharmender, Ravi Raj, Jai Singh and Hari Ram. In so far as the accused Sunil and Ashok Kumar are concerned they were the Supervisors whose presence at the spot at the time of the incident also stands established. It is also established from the testimony of Dev Dutt that while he and Gurcharan were repearing the generator set there were loud voices of ChorChor and when they reached the spot they were told by the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok that the thief had come but had gone away. It is also established that in the morning when police came to the spot they had lifted blood from both near the Railway Line and from the Casting Yard i.e. area under the control and supervision of the accused. The postmortem report of the deceased confirms injuries caused by blunt objects i.e. sticks and rods present in the Casting Yard and it is this which makes me to conclude that the deceased was in fact beaten in the Casting Yard i.e. the place near the Guard Room where Dev Dutt and Gurcharan had gone on hearing voices and hence it was now for the accused to explain how the human blood was found in the same area (under their Supervision and St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 126 Control) being a fact within their special knowledge (under Section 106 Evidence Act which the accused have failed to do in their statements under Section 313 Cr.P.C.).
(134) Hence, from the testimony of Dev Dutt Sharma it stands conclusively established that there was some incident during the intervening night and some hue and cry with regard to a thief having entered the Casting Yard had been raised. He has tried to give a twist to the story when despite his earlier version that the boy whose dead body was found adjoining the Casting Yard, was the same person who was given a beating by the security guards since he had entered the Casting Yard he states that when he reached the spot the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok informed him that the thief had gone away. The site plan which has been prepared by the Investigating Officer particularly the scaled site plan is very clear. There was a gap in the boundary wall from where the entry of any person from the public is possible and the possibility of the deceased having sneaked into the premises of the Casting Yard either being intoxicated or otherwise being a Vega Bond cannot be ruled out since it was drizzling at the time of the incident. It is very common for Vega Bonds to be seeking a shelter in places which they feel are abandoned. Whether he was a thief or not is an aspect which has neither been investigated nor established. No other person could have entered the Casting Yard more so when Dev Dutt Sharma has proved having heard the cries and come to know that some person had St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 127 entered into Casting Yard and coupled with the fact that blood was detected at the spot and Medical Evidence i.e. Postmortem Report of the deceased confirms use of sticks on the deceased as got recovered by the accused which convinces me that none else but the accused namely Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok were the persons who were the authors of the crime. (135) The electronic evidence on record with regard to the user of mobile phone used by the accused persons is also very clear and established the presence of all the accused at the spot of the incident which cannot be denied and rather supports the prosecution version. (136) Now, the short point would would be as regards the existence of relevant mensrea whether it was to cause death of the deceased or not and whether the act of the accused are covered under the provisions of Section 302 or 304 Indian Penal Code. In this regard, I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 128 such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly culpable homicide is not murder if the offender, whilst deprived of the power of self control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. I may observe that this exception is also subject to the proviso that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant;
the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 129 the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97].
(137) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).
(138) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 130 stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note:
All murders are culpable homicide but not viceaversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45). (139) Applying the settled principles of law to the facts of the present case, it is writ large from the circumstances as they emerge from the record that the accused persons are Security Guards/ Supervisors. On the face of it their case falls under Second Exception to Section 300 Indian Penal Code St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 131 i.e. in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence and hence brings the case within the provisions of Section 304 Indian Penal Code. Now to consider as to whether it is Part I or Part II of the provisions of Section 304 IPC which would apply, I may observe that the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok had no intention whatsoever to have cause the death of the deceased who appeared to be a Vega Bond who accidentally or may be even deliberately entered the Casting Yard premises on the intervening night when it was drizzling perhaps either to save from drizzles or accidentally not being conscious of the fact that the premises were guarded and the entry in the same was prohibited. No doubt, the accused persons being Security Guards have a right to use reasonable amount of force for purposes of selfdefence or safe guarding the property but no excessive use of force is permissible and specifically after the threat of trespass has been removed and hence under the given circumstances four persons having inflicted injuries upon one helpless person is an excessive use of force by the security guards under the supervision of their supervisory officers. The intent perhaps was to stop this person or detaining him till morning to be handed over to the police but certainly not to cause the death and it was in the said process that the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 132 deceased of the deceased had been caused. As many as four injuries had been inflicted upon the victim/ deceased including the one on his head i.e. Laceration 6 x 3cm bone deep left parietal eminence area (which injury alone has been opined to be sufficient to cause death in the ordinary course of nature). The other injuries singularly or even together could not have caused his death. Further, the weapons used in the crime are the dandas and iron pipe which the police officers investigating the case have admitted were lying in the Casting Yards along with similar items. The evidence on record does not conclusively establish the necessary intent so attributed to the accused by the prosecution but the act of inflicting head injury on a helpless person particularly on head is an act that any reasonable person is deemed to be possessing the requisite knowledge that it is likely to cause death of the person. Under these circumstances I hereby hold that the prosecution has miserably failed to conclusively establish that the accused had the intention to cause death or such bodily injuries sufficient in the ordinary course of nature to cause death or such bodily injury as is likely to cause death but it certainly stands established that the act of the accused in inflicting head injury on the deceased was such that the accused were deemed to have knowledge that it was likely to cause death and hence the case of the accused is covered under the provisions of Section 299 IPC and they are guilty of culpable homicide not amounting to murder. The case of the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok would fall within the purview St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 133 of Section 304 (PartII) Indian Penal Code and not under Section 302 Indian Penal Code, the required mensrea for murder not being present. (140) In so far the accused Gurcharan is concerned, as discussed herein above, he was not present with the other accused persons while inflicting injuries to him and was rather present with the electrician Dev Dutt Sharma. Therefore, I hold that the prosecution has not been able to prove and establish the allegations against the accused Gurcharan beyond reasonable doubt and hence he is acquitted of the charge under Section 302 Indian Penal Code.
FINAL CONCLUSIONS:
(141) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 134
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(142) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. They have proved having gone to the spot of incident. From the evidence on record the following aspects stand established:
➢ That the accused Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram were employed as Security Guards and the accused Ashok and Sunil were employed as Supervisors with Swastik Detective and Security Services from 187, GK House, Room No. 211, Sant Nagar, East of Kailash, New Delhi65. ➢ That pursuant to a contract Swastik Detective and Security Services deployed its five Guards namely Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram and two supervisors namely Ashok and Sunil at Casting Yard of IJM Infrastructure Ltd. near Railway Station, Mundka, Delhi.
➢ That Dev Dutt Sharma was employed as Electrician at the above Casting Yard of IJM Infrastructure Ltd.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 135 ➢ That on the intervening night of 2223.08.2012 the security guards Ravi Rai, Hari Ram, Jai Singh, Gurcharan and Dharmender and Supervisors Ashok and Sunil were on duty at the Casting Yard. ➢ That on that day there was no electricity in the yard since the generator was not working on which Dev Dutt Sharma along with accused Gurcharan went towards the generator at around 1212:30 AM and tried to start the same.
➢ That at that time it was drizzling and the generator did not start. ➢ That while Dev Dutt Sharma along with accused Gurcharan were coming back from generator room towards the office room, they heard shouts of chorchor on which they reached the spot where the guards Dharmender @ Shiv Kumar, Ravi, Jai Singh, Hari Ram and two field officers namely Sunil Kumar and Ashok informed them that there was a thief who had run away "chor tha aur bhag gaya".
➢ That on 23.8.2012 at about 4:30 AM HC Krishan Kumar the PCR Van Incharge received a call that one man was lying unconscious near Mundka Railway Station Gate No. 15, Delhi on which he reached the spot and found one person in an unconscious condition with injury on his head after which he shifted the injured to Sanjay Gandhi Hospital. ➢ That pursuant to the same information was sent to Police Station Aman Vihar vide DD No. 6PP on which SI Somveer reached near Mundka Railway Station but nobody found there and thereafter he St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 136 received information from the Police Station and was directed to reach in SGM Hospital.
➢ That SI Somveer then reached at SGM Hospital where injured was found admitted in the emergency ward and doctor declared him as 'brought dead'.
➢ That Inspector Tilak Chand along with his staff also reached Sanjay Gandhi Hospital and took the casual search of the dead body but no article/ document was found which could disclose the identity of the deceased.
➢ That the deceased was aged about 2025 years and there were injury marks all over the body.
➢ That on the right arm, name Shakti Rita was engraved and there was a mark of 'OM' on the upper palm of the right hand of the dead body and the deceased was wearing maroon colour T Shirt and black colour half pant.
➢ That thereafter the Investigating Officer contacted the Incharge of the PCR Van who had brought the body in the hospital and asked him about the place from where the injured was taken to the hospital. ➢ That after coming to know the spot, the Investigating Officer reached the spot i.e. Mundka Railway Station, North Side, east corner of the platform where PCR Incharge was found present there who showed him the place from where he took the injured to the hospital. ➢ That the Investigating Officer inspected the spot and towards Casting St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 137 Yard blood was also lying as well as inside the Casting Yard. ➢ That the Manager of Casting Yard was then contacted who handed over list of the employees who were on night duty. ➢ That the electrician namely Dev Dutt Sharma who was on night duty was called who informed the Investigating Officer that the security guards namely Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram and the Supervisors Ashok and Sunil had inflicted injuries on a young boy who had entered the Casting Yard on the previous night.
➢ That on the basis of the statement of Dev Dutt Sharma the present case was registered.
➢ That during investigations on 25.08.2012 pursuant to a secret information the accused Ravi Rai was arrested from Bhagya Vihar, Village Rani Khera near Jain Public School.
➢ That at the instance of accused Ravi Rai, the accused Gurcharan, Dharamender @ Shiv Kumar and Jai Singh were arrested from Prem Nagar and Nangloi.
➢ That pursuant to his disclosure statement the accused Ravi Rai got recovered his dress of Swastik Security blood stained from his room where he was residing, which shirt was taken into possession. ➢ That the accused Gurcharan, Dharmender and Jai Singh also got recovered their clothes having blood stains which were then seized. ➢ That the accused Ravi Rai got recovered one blood stained danda, an St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 138 iron pipe and one broken danda from the back side of security post situated at Casting Yard which were lying behind the security post, which were also taken into possession.
➢ That on 28.08.2012 the accused Hari Ram was arrested from the service road of A Block of Agar Nagar, Prem Nagar and pursuant to his disclosure statement the accused Hari Ram got recovered his blood stained dress of Swastik Security, which was taken into possession.
➢ That on 6.9.2012 the accused Sunil was arrested from outside the office of Swastik Security Agency, East of Kailash and pursuant to his disclosure statement the accused Sunil got recovered his blood stained clothes which he was wearing at the time of incident, which clothes were seized.
➢ That on 25.10.2012 the accused Ashok was arrested from his native village i.e. Village Hathnasa, Rai Bareilly. (143) The medical evidence on record is compatible to the prosecution case that the death of the deceased was due to cranio cerebral damage as a result of blunt force impact under injury no.1 (Laceration 6 x 3cm bone deep left parital eminence area) which was sufficient to cause death in ordinary course of nature and that the injuries on the body of the deceased could be possible by the weapon of offence i.e. an iron pipe attached with an elbow, three pieces of broken bamboo stick and danda/ lathee got St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 139 recovered by the accused.
(144) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence?
The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(145) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to build up a continuous link. (146) In so far as the aspect of unlawful assembly is concerned, I hereby hold that the prosecution has not been able to prove beyond reasonable doubt that the accused Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram, Ashok and Sunil had St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 140 constituted themselves into an Unlawful Assembly, and hence the accused are acquitted of the charge under Section 149 Indian Penal Code. (147) Further, the evidence on record does not conclusively establish the necessary intent so attributed to the accused by the prosecution but the act of inflicting head injury on a helpless person particularly on head is an act that any reasonable person is deemed to be possessing the requisite knowledge that it is likely to cause death of the person. Under these circumstances I hereby hold that the prosecution has miserably failed to conclusively establish that the accused had the intention to cause death or such bodily injuries sufficient in the ordinary course of nature to cause death or such bodily injury as is likely to cause death but it certainly stands established that the act of the accused in inflicting head injury on the deceased was such that the accused were deemed to have knowledge that it was likely to cause death and hence the case of the accused is covered under the provisions of Section 299 IPC and they are guilty of culpable homicide not amounting to murder. The case of the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok would fall within the purview of Section 304 (PartII) Indian Penal Code and not under Section 302 Indian Penal Code, the required mensrea for murder not being present. Therefore, the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok are held guilty of the offence under Section St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 141 304 (PartII) Indian Penal Code.
(148) In so far the accused Gurcharan is concerned, as discussed herein above, he was not present with the other accused persons while inflicting injuries to him and was rather present with the electrician Dev Dutt Sharma. Therefore, I hold that the prosecution has not been able to prove and establish the allegations against the accused Gurcharan beyond reasonable doubt and hence he is acquitted of the charge under Section 302 Indian Penal Code.
(149) Be listed for arguments on sentence on 10.7.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 5.7.2014 ASJII(NW)/ ROHINI
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 142
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NOTHWEST): ROHINI COURTS: DELHI Session Case No. 33/2013 Unique Case ID No. 02404R0320172012 State Vs. (1) Dharmender @ Shiv Kumar S/o Sh. Hari Singh R/o EBlock, GhoriBaggi Wale, Agar Nagar, Prem NagarIII, Delhi (Convicted) (2) Ravi Raj S/o Sh. Uma Kant Rai R/o House of Nanhe, Near Jain Public School, Bhagya Vihar, PS Aman Vihar, Delhi (Convicted) (3) Gurcharan S/o Late Sh. Asha Ram R/o EBlock, GhoriBaggi Wale, Agar Nagar, Prem NagarIII, Delhi (Acquitted) (4) Jai Singh S/o Sh. Ram Chander R/o C59, Gali No. 10, Amar Colony, Kamruddin Nagar, Nangloi, Delhi (Convicted) St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 143 (5) Hari Ram S/o Sh. Hari Singh R/o EBlock, GhoriBaggi Wale, Agar Nagar, Prem NagarIII, Delhi (Convicted) (6) Sunil Kumar S/o Sh. Chander Singh R/o Village Hidayat Pur, Police Station Chand Hat, Distt. Palwal, Haryana (Convicted) (7) Ashok S/o Sh. Raj Kishore R/o Village Hathnara, Police Station Sareni, Distt. Rai Bareilly, UP (Convicted) FIR No.: 240/2012 Police Station: Aman Vihar Under Section: 302/149 Indian Penal Code Date of Conviction: 5.7.2014 Arguments concluded on: 25.7.2014 Date of sentence: 25.7.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. Public Prosecutor for the State.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 144
All the convicts Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok in Judicial Custody with Sh. B.S. Rana, Ms. Nidhi Kalia,and Sh. S.K. Singh Advocates.
ORDER ON SENTENCE:
As per the allegations on the intervening night of 22/23.8.2012 at about 12:30 AM (midnight) within the premises of Casting Yard IJM Infrastructure Ltd. near Railway Station, Mundka, Delhi all the accused namely Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Gurucharan, Jai Singh, Hari Ram, Sunil Kumar and Ashok being the member of unlawful assembly and in prosecution of the common object of the said unlawful assembly, committed the murder of an unknown person by intentionally killing him and thus committed an offence punishable under Section 302 read with 149 Indian Penal Code.
However, on the basis of the testimonies of various prosecution witnesses and also on the basis of the other circumstantial evidence on record, this Court vide a detailed judgment dated 5.7.2014 has acquitted all the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Gurucharan, Jai Singh, Hari Ram, Sunil Kumar and Ashok of the charges under Section 149 Indian Penal Code. However, the accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok have been held guilty of the offence under Section 304 (PartII) Indian Penal St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 145 Code (not under Section 302 IPC) for which they have been accordingly convicted. The accused Gurcharan has been acquitted of all charges including the charge under Section 302 of the Indian Penal Code.
Vide the detailed judgment dated 5.7.2014 this Court has observed that the prosecution has been able to prove and establish that the accused Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram were employed as Security Guards and the accused Ashok and Sunil were employed as Supervisors with Swastik Detective and Security Services from 187, GK House, Room No. 211, Sant Nagar, East of Kailash, New Delhi65; that pursuant to a contract Swastik Detective and Security Services deployed its five Guards namely Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram and two supervisors namely Ashok and Sunil at Casting Yard of IJM Infrastructure Ltd. near Railway Station, Mundka, Delhi; that Dev Dutt Sharma was employed as Electrician at the above Casting Yard of IJM Infrastructure Ltd.
Further, it has been established that on the intervening night of 2223.08.2012 the security guards Ravi Rai, Hari Ram, Jai Singh, Gurcharan and Dharmender and Supervisors Ashok and Sunil were on duty at the Casting Yard; that on that day there was no electricity in the yard since the generator was not working on which Dev Dutt Sharma along with accused Gurcharan went towards the generator at around 1212:30 AM and tried to start the same; that at that time it was drizzling and the generator St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 146 did not start; that while Dev Dutt Sharma along with accused Gurcharan were coming back from generator room towards the office room, they heard shouts of chorchor on which they reached the spot where the guards Dharmender @ Shiv Kumar, Ravi, Jai Singh, Hari Ram and two field officers namely Sunil Kumar and Ashok informed them that there was a thief who had run away "chor tha aur bhag gaya".
The prosecution has also been able to successfully establish that on 23.8.2012 at about 4:30 AM HC Krishan Kumar the PCR Van Incharge received a call that one man was lying unconscious near Mundka Railway Station Gate No. 15, Delhi on which he reached the spot and found one person in an unconscious condition with injury on his head after which he shifted the injured to Sanjay Gandhi Hospital; that pursuant to the same information was sent to Police Station Aman Vihar vide DD No. 6PP on which SI Somveer reached near Mundka Railway Station but nobody found there and thereafter he received information from the Police Station and was directed to reach in SGM Hospital; that SI Somveer then reached at SGM Hospital where injured was found admitted in the emergency ward and doctor declared him as 'brought dead'; that Inspector Tilak Chand along with his staff also reached Sanjay Gandhi Hospital and took the casual search of the dead body but no article/ document was found which could disclose the identity of the deceased; that the deceased was aged about 2025 years and there were injury marks all over the body; that on the right arm, name Shakti Rita was engraved and there was a mark of 'OM' on St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 147 the upper palm of the right hand of the dead body and the deceased was wearing maroon colour T Shirt and black colour half pant; that the Investigating Officer contacted the Incharge of the PCR Van who had brought the body in the hospital and asked him about the place from where the injured was taken to the hospital; that after coming to know the spot, the Investigating Officer reached the spot i.e. Mundka Railway Station, North Side, East corner of the platform where PCR Incharge was found present who showed him the place from where he took the injured to the hospital; that the Investigating Officer inspected the spot and towards Casting Yard blood was also lying as well as inside the Casting Yard; that the Manager of Casting Yard was then contacted who handed over list of the employees who were on night duty; that the electrician namely Dev Dutt Sharma who was on night duty was called who informed the Investigating Officer that the security guards namely Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram and the Supervisors Ashok and Sunil had inflicted injuries on a young boy who had entered the Casting Yard on the previous night mistaking him to be a thief; that on the basis of the statement of Dev Dutt Sharma the present case was registered.
It has also been established that during investigations on 25.08.2012 pursuant to a secret information the accused Ravi Rai was arrested from Bhagya Vihar, Village Rani Khera near Jain Public School; that at the instance of accused Ravi Rai, the accused Gurcharan, Dharamender @ Shiv Kumar and Jai Singh were arrested from Prem St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 148 Nagar and Nangloi; that pursuant to his disclosure statement the accused Ravi Rai got recovered his dress of Swastik Security blood stained from his room where he was residing, which shirt was taken into possession; that the accused Gurcharan, Dharmender and Jai Singh also got recovered their clothes having blood stains which were then seized; that the accused Ravi Rai got recovered one blood stained danda, an iron pipe and one broken danda from the back side of security post situated at Casting Yard which were lying behind the security post, which were also taken into possession; that on 28.08.2012 the accused Hari Ram was arrested from the service road of A Block of Agar Nagar, Prem Nagar and pursuant to his disclosure statement the accused Hari Ram got recovered his blood stained dress of Swastik Security, which was taken into possession.; that on 6.9.2012 the accused Sunil was arrested from outside the office of Swastik Security Agency, East of Kailash and pursuant to his disclosure statement the accused Sunil got recovered his blood stained clothes which he was wearing at the time of incident, which clothes were seized; that on 25.10.2012 the accused Ashok was arrested from his native village i.e. Village Hathnasa, Rai Bareilly.
This Court has further observed that the medical evidence on record confirmed that the death of the deceased was due to cranio cerebral damage as a result of blunt force impact under injury no.1 (Laceration 6 x 3cm bone deep left parital eminence area) which was sufficient to cause death in ordinary course of nature and that the injuries on the body of the St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 149 deceased could be possible by the weapon of offence i.e. an iron pipe attached with an elbow, three pieces of broken bamboo stick and danda/ lathee got recovered by the accused.
In so far as the aspect of unlawful assembly is concerned, this court has observed that the prosecution has not been able to prove beyond reasonable doubt that the accused Dharmender @ Shiv Kumar, Gurcharan, Jai Singh, Ravi Rai, Hari Ram, Ashok and Sunil had constituted themselves into an Unlawful Assembly, and hence the accused have been acquitted of the charge under Section 149 Indian Penal Code.
This Court has further observed that the evidence on record does not conclusively establish the necessary intent so attributed to the accused by the prosecution but the act of inflicting head injury on a helpless person particularly on head is an act that any reasonable person is deemed to be possessing the requisite knowledge that it is likely to cause death of the person. Under these circumstances it has been held that the prosecution has miserably failed to conclusively establish that the accused had the intention to cause death or such bodily injuries sufficient in the ordinary course of nature to cause death or such bodily injury as is likely to cause death but it certainly stands established that the act of the accused in inflicting head injury on the deceased was such that the accused were deemed to have knowledge that it was likely to cause death and hence the case of the accused is covered under the provisions of Section 299 IPC and they have been held guilty of culpable homicide not amounting to murder. St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 150 The accused Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok have been held guilty of the offence under Section 304 (PartII) Indian Penal Code and not under Section 302 Indian Penal Code, the required mensrea for murder not being present.
In so far the accused Gurcharan is concerned, he was not present with the other accused persons while incident took place and was rather present with the electrician Dev Dutt Sharma, therefore, this Court has held that the prosecution has not been able to prove and establish the allegations against the accused Gurcharan beyond reasonable doubt and hence he has been acquitted of the charge under Section 302 IPC.
Arguments have been on the aspect of sentence. The convict Dharmender @ Shiv Kumar is a young boy aged 25 years having a family comprising of aged parents. He is 5th class pass and is a Security Guard by profession.
The convict Ravi Rai @ Ravi Raj is aged about 41 years having a family comprising of aged widow mother, wife, two daughters and one son. He is 6th class pass and is a Security Guard by profession.
The convict Jai Singh is aged about 40 years having a family comprising of wife two sons and one daughter. He is 5th class pass and is a Security Guard by profession.
The convict Hari Ram is aged about 28 years having a family comprising of aged parents, five sisters, wife, seven daughters and three St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 151 sons. He is 5th class pass and is a Security Guard by profession.
The convict Sunil Kumar is aged about 34 years having a family comprising of aged parents, five sisters, wife and two sons. He is 12th pass and is a Supervisor by profession.
The convict Ashok Kumar is aged about 37 years having a family comprising of aged parents, two brothers, four sisters, wife, one daughter and one son. He is 10th class pass and is a Supervisor by profession.
The Ld. Counsels appearing on behalf of the convicts have vehemently argued that all the convicts are Security Guards coming from very poor families and the incident in question was a mishappening which was never intended or anticipated. It is pointed out that all the convicts are first time offenders having no previous record who earn their livelihood by hard and honest work. It is also pointed out that all the convicts are sole helping hands of their respective families and hence a leniency on sentence is requested. On the other hand the Ld. Addl. PP for the State has prayed that a stern view be taken against the convicts.
I have considered the rival contentions and I may observe that all the convicts are Security Guards/ Supervisors belonging to extremely poor families. The incident in question is a chance happening rather a mis happening where the convicts had no Criminal Intent least an intent to cause death of the deceased and sole object was to secure the property which they were entrusted and required to guard. The deceased was a vega St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 152 bond or at least appeared to be one and was mistaken to be a thief. There was no electricity during the night and the generator set was also not operational. To make the matters worse there was a drizzle outside during this dark cloudy night. What happened was simply a mishap or a misfortune that when the convicts who were entrusted with the responsibility of securing the complex in their capacity as Security Guards/ personnel's that they had caught the deceased who had somehow managed to enter the restricted area of the Casting Yard for reasons unknown. Taking him to be a thief as a first reaction, he was thrashed with the sticks lying the complex when caught. The medical evidence confirms that it was one blow which landed on his head which proved fatal, rest of the injuries were neither singularly nor collectively sufficient to cause death and hence it establishes that the use of force was not brutal though one blow proved excessive.
It is a settled law that jurisdiction to pay compensation to the victim of crime / their families has to be treated as a part of the over all Jurisdiction of the Courts and the Hon'ble Supreme Court has time and again impressed upon the Courts of Law to exercise this power to award compensation to the victim in a liberal way so that they may not have to rush to Civil Courts. Legislation has conferred this jurisdiction upon the criminal courts under Section 357(3) of Code of Criminal Case at the time of finalization of judgment of conviction (Reference: Hari Singh Vs. State reported in AIR 1988 SC 2127).
Compensation is something given in recompense i.e. equivalent St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 153 rendered. The whole purpose of compensation is to make good the loss sustain by the victim or legal representative of the deceased. Though the psychological & physical trauma/ pain and sufferings of the family of the deceased victim cannot be compensated but for the financial loss caused to the family of the deceased on account of his death they are required to be suitably compensated. Restitution is an important part of Criminal Sentencing which depends upon the convict's ability to pay for the harm caused by his act to the victim and his family and the convicts Dharmender @ Shiv Kumar, Ravi Raj @ Ravi Rai, Jai Singh, Hari Ram, Sunil Kumar and Ashok have themselves offered to compensate the family of the victim as per their ability.
In this background, I am now required to decide upon the quantum of sentence. The conduct of the convicts during the trial has been satisfactorily and have undergone the agony of trial for the last almost two years. Not only the convicts but so also their families have suffered on account of their incarceration since the date of their arrest. I am of a considered view that the convicts are entitled to be treated with compassion not being previous offenders and having no background of being on the wrong side of law. Therefore, under these circumstances a lenient view is taken against the convicts and I am satisfied that the convicts having already suffered long incarceration justice would be done in case if the family of the deceased (as and when traced) is suitably compensated. I therefore award the following sentence to the convicts: St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 154
All the convicts i.e. Dharmender @ Shiv Kumar, Ravi Rai @ Ravi Raj, Jai Singh, Hari Ram, Sunil Kumar and Ashok Kumar are hereby sentenced to Rigorous Imprisonment for a period of Two Years (each) and fine to the tune of Rs. One Lac (each) for the offence under Section 304 (PartII) Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of Six Months (each).
Here, I may mention that Sh. G.P. Singh Additional Secretary (Home), GNCT of Delhi has appeared in the Court and has placed on record the proposed Delhi Victim Compensation Scheme 2011 which is yet to be finalized. He has informed that though the 'Delhi Victim Compensation Scheme 2011' envisaged a separate 'Victim Compensation Fund' as specified in Clause 3 of the Scheme, yet no separate account Head for operating the aforesaid Fund has been created and the fine amount as imposed under Section 357 Cr.P.C. can be ordered to be deposited in the account Head 0235 - Social Security and Welfare (Receipts). It is reported that the Delhi Victim Compensation Scheme 2011 is being amended to increase the quantum of compensation which can be granted by the Courts/ DLSA and is yet to receive the approval of the LG, GNCT of Delhi.
In view of the above, it is directed that the compensation so directed by the Court be got deposited in the above head with directions for St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 155 the release of the amount to the family members/ legal Heirs of the deceased as and when traceable. I note that the above head of account does not cover the amount which is imposed as fine and when realized, given as compensation under Section 357 (3) Cr.P.C. Hence, I clarify that the fine so imposed by this Court is under Section 357 Cr.P.C. and not 357A Cr.P.C. and the said amount of fine of Rs. Six Lacs (i.e. Rs. One Lacs from each of the convict) when realized may be deposited under the Head 0235 - Social Security and Welfare (Receipts) to be released to the Legal Heirs/ family members of the deceased (after verification) as and when traced which shall be in addition to the amount which is so awarded by the Government under Section 357A Cr.P.C.
Further, since the identity of the deceased has not been established till date, the SHO and ACP concerned are directed to take fresh steps in addition to the ones taken earlier. The SHO concerned has been permitted to take the photographs of the body of the deceased which were present on the judicial file, on this request, for purposes of taking necessary steps for getting the identity of the deceased established. From the tattooing present on the body of the deceased, it appears that probably the deceased belongs to Hindi belt and hence it should be ensured that his particulars should be published not only in the daily newspapers but also specifically in those which find a circulation in the states of Uttar Pradesh, Bihar, Chattisgarh and Jharkand. The steps taken should be duly intimated to the Court and placed on record.
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 156
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them.
The convicts are informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convicts free of costs and one copy of sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 25.7.2014 ASJII(NW)/ ROHINI
St. Vs. Dharmender @ Shiv Kumar Etc., FIR No. 240/12, Police Station Aman Vihar Page No. 157