State vs Rajender Bharti @ Shalu And Ors. Page No. ... on 24 April, 2019

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Delhi District Court

State vs Rajender Bharti @ Shalu And Ors. Page No. ... on 24 April, 2019

           IN THE COURT OF SH. AJAY PANDEY
       ADDITIONAL SESSIONS JUDGE, NORTHWEST
                 ROHINI COURT: DELHI.

CNR No. DLNW010026902015



SC No. 52980/2016
FIR No. 499/15
PS - Subhash Place
U/s - 302/34 IPC and 25/27 Arms Act


State

Vs

1.                  Rajender Bharti @ Shalu
                    S/o Sh. Khajan Singh
                    R/o H. No. G105, DDA Market
                    J.J. Colony, Shakurpur, Delhi.

2.                  Rajpal @ Pradeep
                    S/o Sh. Kailash
                    R/o H. No. A166, J.J. Colony,
                    Sector24, Rohini, Delhi.

3.                  R. Shrikant @ Appu
                    S/o Sh. Ramaswami
                    R/o H. No. 7103, Kidwai Nagar,
                    New Delhi.

State VS Rajender Bharti @ Shalu and Ors.            Page no. 1 of 144
FIR no. 499/15
PSSubhash Place
 Date of Institution                         :   24.09.2015
Date of Arguments                           :   09.04.2019
Date of Judgment                            :   24.04.2019


JUDGMENT:

1. In brief the case of prosecution is :

a) On 07.06.2015, on receipt of DD No. 26A regarding knife blow, ASI Rakesh Kumar along with constable Mahesh reached Max Hospital, Pitampura. In the meanwhile IO Inspector Subodh Kumar and HC Ashok also reached there. Injured Deepak was found admitted in the emergency of Max Hosital Netaji Subhash Place. Injured was declared unfit for statement. Brother of injured PW2 Vikas was also found present there. He informed the police officials that his brother Deepak was stabbed with knife by Appu, Shalu and his associate near Best Sky Tower. He gave his statement to the effect that his brother Deepak was working at Netaji Subhash Place (NSP) at Best Sky Tower as an office boy. On receiving phone call from his brother, he reached Best Sky Tower on his bike and saw that his brother Deepak State VS Rajender Bharti @ Shalu and Ors. Page no. 2 of 144 FIR no. 499/15 PSSubhash Place was lying on the road. He also saw three persons running from the side of his brother. He knew two of them and disclosed their names as Appu who was holding knife in his right hand and one Shalu. He further stated that he did not know the name of third person, however he could identify him, if he is produced before him. The blood was oozing out from the chest of his brother. His brother had disclosed him that Appu, Shalu and their third associate had stabbed him with knife. In the meantime PCR van reached the spot. He along with PCR officials took the injured to MAX hospital, Pitampura. One person PW4 Saurabh who was his neighbour also met him at the spot. PW4 told him that at the time of fight he was with injured Deepak. PW4 also told that Appu along with his two associates had stabbed Deepak. In the meantime his brother expired in MAX hospital during treatment. On the basis of said statement of PW2 present case FIR was registered.

b) Statement of PW4 Saurabh was also recorded. In the said statement PW4 stated that on 07.06.2015, he was present at NSP market and was State VS Rajender Bharti @ Shalu and Ors. Page no. 3 of 144 FIR no. 499/15 PSSubhash Place standing near Fun Cinema. Deepak came to him and stated that accused Appu and his associates were fighting with him. Deepak asked for his help and told PW4 to accompany him to the park in front of Best Sky Tower. PW4 accompanied Deepak, two more persons were accompanying Deepak at that time but PW4 did not knew them. The said two persons were also called by Deepak for his help. They went to the park in front of Best Sky Tower where Appu along with his two associates was seen. Quarrel started between the two parties. In the meantime Appu took out a knife and stabbed Deepak with the intention to kill him. Appu first stabbed on the chest of Deepak and his two other associates were saying "saala aaj bachna nahi chahiye". In the meantime one of associate of Appu took the knife from the hands of Appu and stabbed him in his abdomen. On seeing this PW4 got scared and ran away from there. He also stated that deceased Deepak had disclosed to him that he (deceased) was sitting with his girlfriend in the park. Appu and his associates misbehaved with him and quarreled with him. PW4 also disclosed these facts to the State VS Rajender Bharti @ Shalu and Ors. Page no. 4 of 144 FIR no. 499/15 PSSubhash Place brother of deceased Deepak i.e. PW2.

c) During investigation crime team was called at the spot, which inspected the spot. Earth control and blood stained earth control were lifted from both the spots i.e. one the park where injured was stabbed and other where injured fell on the ground on road after running a distance. MLC and clothes of deceased were seized and sealed. IO got the FIR registered through HC Ashok. Site plan of the spot was prepared at the instance of PW4 Saurabh and PW2 Vikas. The shirt of Vikas on which blood was found was also seized. Postmortem of deceased was got conducted. CCTV footage of Shop No. G 5 and 6, Best Sky Tower, NSP was obtained.

d) During investigation on 08.06.2015 accused Rajender @ Shalu was arrested. He disclosed that on 07.06.2015, he along with his two associates namely Appu and Rajpal @ Pradeep was eating and drinking in a park at NSP near Best Sky Tower. In the said park Deepak (deceased) was sitting with three girls. Accused Appu called Deepak and asked him to sit. Deepak refused to do so. At this accused Appu forcefully held the hand of State VS Rajender Bharti @ Shalu and Ors. Page no. 5 of 144 FIR no. 499/15 PSSubhash Place Deepak and asked him to sit. Deepak got released his hand and ran away from there. Thereafter, Deepak came back with 34 boys. They started fighting. Accused Appu took out knife and stabbed Deepak on his chest. Thereafter, Pradeep took the knife in his hand and stabbed Deepak in his stomach. He further disclosed that on his instigation accused Appu and Pradeep stabbed Deepak many times to kill him. Thereafter, Deepak ran away from there towards Fun Cinema and fell down. All accused persons also ran away from there.

e) Thereafter, during investigation the other two accused were also arrested. IO also moved application for conducting TIP of all accused persons. Accused Rajender agreed for TIP. However, accused Shrikant and Rajpal refused for TIP. PC remand of accused Rajpal was obtained. During PC remand accused Rajpal got recovered knife used in commission of offence from ganda nallah (waste water drain), Sector24, Rohini. The knife was seized and sealed. Sketch of knife was prepared. Thereafter, on 23.06.2015 accused Rajender refused for his TIP in Tihar Jail before learned MM. Subsequent State VS Rajender Bharti @ Shalu and Ors. Page no. 6 of 144 FIR no. 499/15 PSSubhash Place opinion regarding weapon of offence was obtained. CCTV footages were examined. PW9 female friend of deceased Deepak was identified as one Baby. Her statement was also recorded. Exhibits were sent to FSL. CDR of deceased Deepak, complainant Vikas and Baby were obtained. Statement of witnesses were recorded. After completion of investigation, chargesheet was filed in the court.

2. In view of allegations against accused persons in the chargesheet, charge u/s 302/34 IPC was framed against all accused persons. Further charge u/s 25/27 was framed against accused Shrikant and Pradeep. All accused persons pleaded not guilty to the charges and claimed trial.

3. In support of its case prosecution examined 34 witnesses in total.

4. PW1 Sh. Satbir, is the father of deceased Deepak.

He identified the dead body of his son Deepak vide Ex.PW1/A. He received the dead body of his son vide Ex.PW1/B.

5. PW2 Vikas is the complainant in the present case.

State VS Rajender Bharti @ Shalu and Ors. Page no. 7 of 144 FIR no. 499/15 PSSubhash Place He testified that on 07.06.2015 at about 5.20 pm - 5.25 pm, he was coming from Keshav Puram, when he reached near flyover Pitampura, he received a telephone call from his brother Deepak on his mobile number 9560470116 from mobile number 7503849750. His brother Deepak informed him that some quarrel had taken place near Best Sky Tower and he called him there. He further testified that at that time his brother was working at the said place. The day of incidence was Sunday and it was weekly off of his brother. He reached near Best Sky Tower, NSP within 10 minutes. He saw his brother Deepak lying on the road in injured condition. He further saw three persons were coming running from the opposite direction when he was approaching towards Best Sky Tower. He knew two of them as they were known bad elements of that area. Their names were Appu and Shalu. He did not know the name of third person who was along with accused Appu and Shalu on that day. However, he testified that he can identify the third person if shown to him.

6. PW2 further testified that he went near the place State VS Rajender Bharti @ Shalu and Ors. Page no. 8 of 144 FIR no. 499/15 PSSubhash Place where his brother was lying on road. The blood was oozing from the injury sustained by him on his chest. His brother told him that accused Rajender Bharti @ Shalu, R. Shrikant @ Appu and their third associate stabbed him with knife. When he saw all accused persons running from the spot, he also saw that accused Appu was having a knife in his right hand. In the meantime PCR van came at the spot. He assisted PCR staff in lifting his brother from the spot in PCR van. His shirt got blood stains of his brother during lifting him to PCR. His brother was taken to Max hospital. One person namely Saurabh, who used to reside in his neighbourhood also met him at the spot. His brother expired in Max hospital. Police met him in the hospital and recorded his statement Ex.PW2/A. Saurabh also informed him that he was present with his brother at the time of incident. Saurabh further informed that accused Appu and other accused persons quarreled with Deepak and stabbed him.

7. PW2 further testified that site plan Ex.PW2/B was prepared at his instance. He also proved his statement regarding identification of dead body of his brother State VS Rajender Bharti @ Shalu and Ors. Page no. 9 of 144 FIR no. 499/15 PSSubhash Place Deepak as Ex.PW2/C. After the postmortem the dead body was handed over to him in BSA hospital. He further testified that on 08.06.2015 in the evening hours, he along with his father went to police station. The police officials had already arrested one of accused namely Rajender @ Shalu. He identified the said accused in police station. Police arrested accused Rajender vide arrest memo Ex.PW2/D and his personal search was taken vide memo Ex.PW2/E. He further testified that on 09.06.2015 during morning hours he was called by police at F Block Turn, Ring Road. Police met him at the said place. Police had already apprehended another accused namely Appu. He identified him before the police. Thereafter, police arrested accused Appu vide arrest memo Ex.PW2/F and his personal search was taken vide memo Ex.PW2/G.

8. PW2 further testified that on 19.06.2015 at about 6.30 pm - 7.00 pm, he was called by the police near Fun Cinema, NSP where police officials met him. Police had already apprehended the third offender. He identified him before the police. He came to know his name as State VS Rajender Bharti @ Shalu and Ors. Page no. 10 of 144 FIR no. 499/15 PSSubhash Place Pradeep @ Rajpal. He proved the seizure memo of his blood stained shirt as Ex.PW2/G.

9. On 03.10.2016, PW3 Sh. Rohit Kumar, testified that on 07.06.2015 at about 5.30 pm, he was present near Fun Cinema NSP. In the meantime Deepak came there. He knew Deepak as his younger brother Vikas (PW2) was his friend. Deepak informed him that his quarrel took place with Appu and his two associates. He requested him for help. He along with Deepak went near Best Sky Tower, NSP where two other boys namely Saurabh and Afzhal were already present. Thereafter, he along with Deepak, Saurabh and Afzhal reached in the park near Best Sky Tower. Three persons were already present there. He knew names of two of them as Appu and Shalu. He testified that he can identify the third person if shown to him. He identified all accused persons in the court.

10. He further testified that when they reached in the park, a quarrel started between Deepak with these three accused persons. In the quarrel, accused Appu took out a knife. On seeing the knife, he got scared and fled away State VS Rajender Bharti @ Shalu and Ors. Page no. 11 of 144 FIR no. 499/15 PSSubhash Place from the spot. Later on he came to know from PW2 Vikas that Deepak had expired. Thereafter, on 31.08.2015, he came to Rohini Courts, Near Court room no. 108 and saw third accused with police officials. He identified the third accused before the police and came to know his name as Pradeep. He also testified that Deepak was wearing red colour shirt and blue colour pant when the incident had occurred. Further examination of this witness was deferred for want of case property.

11. On 08.02.2017, this witness was further examined in chief and the case property i.e. knife was produced before him but he did not identify the knife. Further case property i.e. clothes of deceased were also produced before this witness in a parcel. The said parcel was found containing one torn maroon coloured shirt, blue colour torn jeans and an angocha (a local towel). The witness identified the maroon colour shirt as the same which was worn by deceased Deepak at the time of incident. However, he did not identify the pair of jeans and angocha. At the request of then learned Addl. PP, the witness was permitted to be crossexamined by her. The State VS Rajender Bharti @ Shalu and Ors. Page no. 12 of 144 FIR no. 499/15 PSSubhash Place witness denied the suggestion of learned Addl. PP that he was not identifying the knife because he received any threat from any person during the intervening period from 03.10.2016 to 08.02.2017. He replied that he did not see knife in the hand of accused Appu and therefore he could not identify the same. He further denied that he was not identifying the jeans of Deepak and knife due to fear.

12. In his crossexamination by learned defence counsel Sh. V.C. Gautam for accused Rajender Bharti, this witness stated that he had not witness any incidence. He further stated that on 03.10.2016, he had given his evidence at the instance of Mr. Vikas (PW2) and his father as Vikas had given him paper to read and had told him to depose in the court as per the contents of that paper. In his further crossexamination on behalf of accused Rajpal by learned counsel Sh. Abhishek Kaushik, witness stated that he had not seen any of the accused persons at the spot on the day of incidence i.e. 07.06.2015. After this crossexamination, learned Addl. PP for State sought permission of the court to reexamine State VS Rajender Bharti @ Shalu and Ors. Page no. 13 of 144 FIR no. 499/15 PSSubhash Place the witness. Permission was granted and the witness was reexamined on 08.01.2018. In his reexamination, the CCTV footage in the pen drive Ex.PW3/A filed by IO was shown to him. He correctly identified PW4 Saurav and deceased Deepak. He pointed out that Saurav had run away from the spot during the occurrence. He also identified himself at 05:32:19 pm running from the spot. He admitted that he had witnessed the scuffle. He however denied that scuffle was between Deepak and three accused persons present in court on that day. He further denied that due to fear of accused persons he was deliberately concealing the fact that he had seen the scuffle between deceased Deepak and accused persons.

13. PW4 Master Saurabh Duggal, testified that in the month of August about 23 years prior of his deposition, he had gone in the evening to NSP in a hotel to collect money from the owner of the hotel as his mother Ms. Santosh had been working there for about a month. The hotel was situated near Fun Cinema and near a liquor shop (theka). He met Deepak (since deceased) near Fun Cinema. Deepak was residing in the street on the rear State VS Rajender Bharti @ Shalu and Ors. Page no. 14 of 144 FIR no. 499/15 PSSubhash Place side of his house and he used to address him as Deepak Bhai. Deepak told him that he had a fight with someone and asked him to come along with him to Best Sky Towner. At that time Deepak was accompanied by two boys, one of whom was Noddy (PW3). He did not remember the name of other boy. He went along with them to Best Sky Tower. There 23 boys started fighting and scuffling with Deepak. On seeing the same he ran away from there and came home. He stated that he could not identify the persons who had fought with Deepak.

14. He further testified that later on his friend Himanshu had told him that that Deepak was admitted in the Max hospital. He also stated that he did not know what had happened to Deepak thereafter. Accused persons were shown to him through the screen in the court and after seeing them he stated that accused persons were not the same boys who had fought and scuffled with Mr. Deepak. This witness was then told the name of each of accused person and he was made to see accused persons again. After seeing the accused persons and their names being told to him, witness still said that State VS Rajender Bharti @ Shalu and Ors. Page no. 15 of 144 FIR no. 499/15 PSSubhash Place accused persons were not the same boys who had fought and scuffled with Mr. Deepak. After this learned Addl. PP had sought permission to crossexamine the witness as the witness was resiling from his earlier statement. Crossexamination of this witness was allowed by the court. In his crossexamination by learned Addl. PP, witness admitted that incidence took place on 07.06.2015. He further admitted that he came to know lateron that Deepak had died in that incident. He further admitted that police had come to his residence on the day of incidence and had taken him to police station Subhash Place for investigation. He also stated that police made inquiry from him and had recorded his statement. Thereafter, his statement u/s 161 Cr.PC dated 08.06.2015 was shown to him. After reading the same, witness denied to have made that statement to the police. He further stated that he did not know any person by the name Appu. He further stated that he was not sure as to whether there were two offenders or three offenders at the spot and volunteered that scuffle had started with Deepak with 2/3 boys near Best Sky Tower. He denied State VS Rajender Bharti @ Shalu and Ors. Page no. 16 of 144 FIR no. 499/15 PSSubhash Place the suggestion of learned Addl. PP that he knew accused Appu before the incidence. He further denied that accused Shrikant @ Appu along with his two other associate namely Rajender Bharti and Rajpal had scuffled with Mr. Deepak. He was confronted with his statement u/s 161 Cr.PC but denied that he had made any such statement to the police. He denied that he made any statement to police that Appu took out knife and stabbed on the chest of Deepak with intention to kill him and at that time two other accused persons were instigating accused Appu. He denied that he made any statement to the police that accused Rajpal @ Pradeep had taken knife from accused Shrikant @ Appu and stabbed the same in the abdomen of Deepak. He denied the suggestion of learned Addl. PP that the incidence of stabbing took place in his presence and that he had seen accused Shrikant @ Appu and Rajpal @ Pradeep stabbing Deepak in his presence or that he had seen accused Rajender Bharti instigating his associates. He further denied that he had told the police that after he had gone away from the spot, he had returned back there and met State VS Rajender Bharti @ Shalu and Ors. Page no. 17 of 144 FIR no. 499/15 PSSubhash Place PW2 at the spot and had informed PW2 about what had happened with Mr. Deepak. He stated that he had not gone to Max hospital with Mr. Deepak. He further stated that he did not show the place of incidence to the police and the police had not prepared any site plan at his instance. He denied that the incidence took place in his presence. At the request of learned Addl. PP, CCTV footage of the incidence as available in pen drive Ex.PW3/A was shown to the witness and he was examined on 12.04.2018.

15. On 12.04.2018, after seeing the CCTV footage witness started weeping. His mother was called in the court room. Court asked witness as well as from mother of witness whether there was any kind of threat from any person to the witness. Witness as well as his mother denied any kind of threat from any person. Witness was further examined in the presence of his mother. On seeing the CCTV footage, witness identified deceased Deepak in the said footage. Witness also identified himself as wearing yellow shirt. He admitted that at 17:32:15 hrs, he was seen running from the spot. He State VS Rajender Bharti @ Shalu and Ors. Page no. 18 of 144 FIR no. 499/15 PSSubhash Place further admitted that on 17:32:19 hrs, Rohit @ Noddy (PW3) was also seen running away from the spot. He admitted that the site plan Ex.PW2/B was bearing his signature.

16. PW5 Inspector Manohar Lal, was working as Draftsman. He was called by IO Inspector Subodh Kumar. He reached the spot and on the pointing out of Inspector Subodh Kumar, he prepared rough notes and took measurements. Thereafter, on the basis of rough notes, he prepared scaled site plan Ex.PW5/A.

17. PW6 constbale Ajay testified that on 21.08.2015, he was posted in PS Subash Place. On that day, MHC(M) handed over to him 12 sealed parcels and three sample seals to be deposited in FSL Rohini. 8 parcels were sealed with the seal of SK and 4 parcels were sealed with the seal of DR. BSAH Government of Delhi. Sample seals were also of DR. BSAH Government of Delhi. He took the said parcels and samples seals vide RC No. 108/21/15, deposited the same in FSL and obtained the acknowledgement from the FSL vide no. FSL 2015/BIO 5620. He handed over acknowledgement to MHC(M). He State VS Rajender Bharti @ Shalu and Ors. Page no. 19 of 144 FIR no. 499/15 PSSubhash Place further testified that sealed parcels and sample seals were not tampered with till the same remained in his custody.

18. PW7 HC Lokesh, testified that on 07.06.2015, he was posted at PCR, CPCR, PHQ. On that day he was on duty from 02:00 PM to 8:00 PM. An information was received at about 17:45 PM that a person has been stabbed near Fun Cinema, Subhash Place. Said information was received through IC Commando 7. PCR Van went to the spot and injured was taken to hospital. Then information was filled up in PCR Form. He proved the computerized copy of PCR form as Ex. P2.

19. PW8 Sh. Ashish Lohiya, testified that in June 2015, he was doing Internship of CA from TMH and Associates, Chartered Accountant at 402, Pearls Business Park, Netaji Subhash Place, New Delhi. On 07.06.2015, at about 5.006.00pm, he saw an injured person lying on the road outside the Pearls Business Park building. The injured was surrounded by many people. A PCR van was parked near to the said place and he informed to the PCR staff about the said injured and the PCR staff had asked State VS Rajender Bharti @ Shalu and Ors. Page no. 20 of 144 FIR no. 499/15 PSSubhash Place his name, father's name, address and his phone number. On 13.08.2015, he was called by the police in police booth of Netaji Subhash Place and he gave his statement to the police there.

20. PW9 Ms. Baby testified that his father was a painter and he died on 25.05.2015. She used to visit in a club at Moments Mall at Netaji Subhash Place, where Deepak (since deceased) used to meet her. On 07.06.2015, Deepak had called her at Moments Mall at Netaji Subhash Place. She went there. From the Moments Mall, she alongwith Deepak went to a park built up under a tower, whose name she did not remember. Accused Appu and Shalu were already sitting in the said park. In her next breath she again stated that Deepak had told her that accused Appu and Shalu were already sitting in the park. Accused Appu and Shalu abused Deepak. Accused Appu caught hand of Deepak and forced him to sit with him in the park. Deceased Deepak had used forced for becoming free from the clutches of accused Appu and ran away towards the Mall. She asked accused Appu and deceased Deepak not to quarrel when Deepak was State VS Rajender Bharti @ Shalu and Ors. Page no. 21 of 144 FIR no. 499/15 PSSubhash Place running. Thereafter accused Appu had taunted her that her friend Deepak had run away after leaving her. She told him "KOI BAAT NAHI' (It does not matter).

21. PW9 further testified that she kept standing over there for about 57 minutes. Then Deepak again arrived there alongwith Noddy (PW3), Saurav (PW4) and an other friend whose name she did not know. Accused persons Appu, Shalu and Pradeep started quarreling with Deepak. Accused Appu took out a knife and on seeing the knife she got afraid and left the spot. When she reached at Kashmiri Gate, she received a telephonic call, that accused Appu and his companion had given knife blows on the person of Deepak. She went to her home in fear. On that day, she was wearing white pant and black top. After about two months of this occurrence, police had recorded her statement in the present case. She further testified that she was shown the video clip and was asked to identify herself in the said video clipping and she identified her in the same.

22. During her examination PW9 was shown the video clipping in the pen drive already Ex. PW3/A and she State VS Rajender Bharti @ Shalu and Ors. Page no. 22 of 144 FIR no. 499/15 PSSubhash Place identified herself and Deepak (since deceased) in the said video clipping.

23. She also identified all accused persons in the court as well as the knife used in commission of offence.

24. PW10 Sunny, testified that in the year 2015, he was working as driver. At that time he was living at B 175, Sector 24, J. J. Colony, Rohini Delhi. On 09.06.2015 at about 6:00 am, police had already apprehended accused Pradeep and a REHRI was there in front of the house of the Pradeep. Police had recovered clothes from the said REHRI and kept the same in a polythene, and obtained his signature on a document and took away the said clothes. Those clothes were pant shirt and they were blood stained. However, he did not know as to whom the said clothes belonged. This witness was declared hostile by the prosecution and was crossexamined by learned Addl. PP. During his crossexamination, learned Addl. PP specifically asked him question "Is it correct that you had told to the police at the time of your recording of statement that a Tshirt of gray colour and jean pant of blue colour was recovered by the accused?" In State VS Rajender Bharti @ Shalu and Ors. Page no. 23 of 144 FIR no. 499/15 PSSubhash Place response to the said question, witness stated that he did not tell to police that the Tshirt of gray colour and jean pant of blue colour were recovered. He volunteered that he had only told to the police that a pant and shirt was recovered. He stated that he was not educated so he cannot read Hindi language and even after seeing the statement u/s 161 Cr.PC he cannot tell what was written therein. His statement u/s 161 Cr.PC was read over to the witness. Even after hearing the said statement, he stated that he did not tell to the police about the Tshirt of gray colour and jean pant of blue colour. He did not identify the clothes of accused which were produced by MHC(M).

25. PW11 Shujat Hussain, testified that in the year 2015, he was doing the work of denting and painting in a park near nallah (waste water drain), Sector 24, J. J. colony, Rohini, Delhi. On 20.06.2015 some police personnels had come near nallah. He was also called by two police personnels. He went to the police. They asked his name and address. He told them the same. Then those police personnels had told him to come in the police State VS Rajender Bharti @ Shalu and Ors. Page no. 24 of 144 FIR no. 499/15 PSSubhash Place station. He went to the Police Station and kept sitting in the police station for about 2 - 2 ½ hours. Then they had shown a knife which was being wrapped by a police personnel in the police station and the police had told him that the said knife was recovered from the nallah and thereafter police obtained his signature on a paper. He asked the police whether he had to go to any court on this account. The police personnel told him that he need not to go to any court and then he left the police station. This witness was also declared hostile by the prosecution and was crossexamined by learned Addl. PP. In his crossexamination by learned Addl. PP, witness admitted that on 20.06.2015 accused Rajpal @ Pradeep was also alongwith the police officials. He denied the suggestion that accused Rajpal @ Pradeep took out the knife ( buttondar knife) wrapped in a cloth piece from the nallah, in his presence. He stated that police did not made inquiry from him. He further stated that he did not know whether the police had recorded his statement or not but his signature was obtained on a blank paper. He admitted that the blade of the knife was steel like metal, State VS Rajender Bharti @ Shalu and Ors. Page no. 25 of 144 FIR no. 499/15 PSSubhash Place handle was fitted with wood and sketch of knife was also prepared. He had also signed said sketch of the knife Ex. PW 11/A. He further stated that knife was sealed in a cloth piece. However, he volunteered that the proceedings were conducted in police station and not at the spot. He denied that the cloth piece was got dried up and was sealed in separate cloth pullanda. He stated that knife was sealed and a document was prepared by the police to that effect and his signature was obtained on the same. He proved the seizure memo of knife as Ex. PW 11/B. He further stated that police might have prepared the site plan in the police station. He proved the said site plan as Ex. PW 11/C. He also identified the buttondar knife, which was produced by MHC(M).

26. PW12 Sh. Arun Bhatia, testified that in the month of June, 2015 he was running a shop of icecream and pastry in Shop no. G5 &G 6, Best Sky Tower, Netaji Subhash Place, Delhi. He had installed eight CCTV Cameras. Two cameras no. 2 & 4 were installed outside his shop, whereas six cameras were installed inside his shop. Three police personnels had come to his shop and State VS Rajender Bharti @ Shalu and Ors. Page no. 26 of 144 FIR no. 499/15 PSSubhash Place he had given one DVD which was containing relevant recordings of camera no. 2 & 4 which was copied from the DVR. His DVR was also taken into custody by the police. The said recordings were of dated 07.06.2015 between 3:45 pm to 5:45/6:00 pm. A document was also prepared by the police to that effect. He proved the seizure memo of CCTV Footage as Ex. PW 12/A. He had also given a certificate qua the authenticity of footage Ex.PW12/B.

27. PW12 further testified that on 20.06.2015, he had handed over the DVR in which recording was stored of the relevant date and time. He proved the seizure memo of DVR as Ex. PW 12/C.

28. PW13 Inspector Chhattar Singh, testified that on 08.06.2015, he was posted as SI in PS Netaji Subhash Place. He alongwith IO/Inspector Subodh, HC Ashok, HC Mukesh, Ct. Sandeep, Ct. Rameshwar went in investigation of present matter, with accused Rajender @ Shalu. Accused Rajender led them to NSP Market, near Best Sky Tower in the park. Accused Rajender Bharti @ Shalu told the IO that the said place was the place State VS Rajender Bharti @ Shalu and Ors. Page no. 27 of 144 FIR no. 499/15 PSSubhash Place where the crime took place and the stab blow was given to Deepak. Thereafter, IO had demarcated the place of occurrence. He further testified that IO asked accused Rajender Bharti @ Shalu to tell about accused Rajpal. Accused Rajender told the IO that he had met accused Rajpal only once. Then IO had taken accused Rajender to Sector 24, Rohini, Delhi as per the direction of accused Rajender. Accused Rajender made them to roam in Sector 24 , Rohini. At about 5:00 am, they went to H. No. 166 in J. J. colony, Sector 24, Rohini Delhi. Accused Rajender told the IO that accused Rajpal was residing therein. On searching accused Rajpal was found in the said house. IO had inquired from accused Rajpal and arrested him vide memo Ex.PW13/A. IO also made inquiries from accused Rajpal about the clothes worn by him at the time of the occurrence. Public persons also gathered there. Accused Rajpal had taken out his clothes hidden under the rods in a Rehri parked in front of the house of accused Rajpal. The said clothes were Tshirt of gray colour and jeans pant of blue colour. The same were seized by the IO. IO prepared the site plan of the State VS Rajender Bharti @ Shalu and Ors. Page no. 28 of 144 FIR no. 499/15 PSSubhash Place recovery of said clothes of accused Rajpal. Two public persons namely Gangadhar and Sunny were present there and their statements were recorded by the IO. Accused Rajender and accused Rajpal were also made muffled face by IO. The disclosure statement of accused Rajpal Ex.PW13/B was also recorded by the IO. He further testified that IO had asked accused Rajpal to show the place of occurrence. Accused led them to the place of occurrence. They went there in a gypsy. Accused Rajpal showed the same place which was shown by the other accused Rajender. IO prepared pointing out memo of the place of occurrence Ex.PW13/C at the instance of accused Rajpal. Then the IO had inquired from accused Rajender and accused Rajpal. They disclosed the name of third accused as Appu @ Shrikant. Both the accused told the IO that accused R. Shrikant @ Appu keep on roaming in the area of Shakur Pur, Delhi. Both the accused Rajender and accused Rajpal had told to the IO that the friends of Appu could meet in the area of Shakur Pur and could help in tracing the accused Appu. Both the accused kept them roaming in the park. At about 9:00 am, when State VS Rajender Bharti @ Shalu and Ors. Page no. 29 of 144 FIR no. 499/15 PSSubhash Place they were in the IBlock, Shakur Pur, one man came to the IO and told that accused Appu was available near FBlock, Shakur Pur, Delhi. HC Mukesh and HC Ashok had gone with the said secret informer and apprehended accused Appu. Then inquiry was made from accused Appu. He was also arrested and searched. Accused Rajpal was also personally searched vide Ex. PW 13/D. Accused Appu was made to muffle his face. IO asked accused Appu whether he could show the place of occurrence. Accused Appu told him that he can show the place of occurrence. Thereafter, on the directions of accused Appu, they arrived at the place of occurrence near Sky Tower and pointing out memo Ex.PW13/E was also prepared at the instance of accused Appu. Disclosure statement Ex.PW13/F of accused Appu was also recorded by the IO. Thereafter, all the three accused were taken to Bhagwan Mahavir Hospital at Pitam Pura, where all the three accused were medically examined. All the three accused were produced in the court and they were remanded in judicial custody.

29. PW14 ASI Kartar Singh is the duty officer in the State VS Rajender Bharti @ Shalu and Ors. Page no. 30 of 144 FIR no. 499/15 PSSubhash Place present case. He testified that on 07.06.2015, he was working as duty officer from 4.00 pm to 12.00 midnight. At about 5.47 pm, a call was received regarding knife blow to a person near Fun Cinema and that the said person had been taken to Max hospital by PCR van. He made entry in roznamcha vide DD No. 26A Ex.PW14/A. The said information was conveyed to Inspector Subodh Kumar vide DD no. 27 Ex.PW14/B. At about 9.07 pm, information was received from Max Hospital regarding death of injured. He made entry vide DD no. 28 Ex.PW14/C to this effect. He further testified that at about 9.55 pm, HC Ashok Kumar brought rukka, which was sent by Inspector Subodh Kumar. On the basis of said rukka, FIR Ex.PW14/D was got registered. He made his endorsement Ex.PW14/E on the rukka. He also proved certificate u/s 65B Indian Evidence Act as Ex.PW14/F.

30. PW15 HC Ajay, had deposited one sealed parcel sealed with the seal of SK in BSA hospital, which he had obtained from MHC(M) along with request letter vide RC No. 97/21/15.

State VS Rajender Bharti @ Shalu and Ors. Page no. 31 of 144 FIR no. 499/15 PSSubhash Place

31. PW16 ASI Ram Narain, was posted as MHC(M) in the year 2015 at PS Subhash Place. He testified that on 07.06.2015, Inspector Subodh Kumar deposited five sealed parcels sealed with the seal of hospital. He made entry in register no. 19 at serial no. 3275 Ex. PW16/A; that on 08.06.2015, Inspector Subodh Kumar deposited three sealed parcels, sealed with the seal of hospital. He made entry in register no. 19 at serial no. 3276 Ex. PW16/B; that on 09.06.2015, Inspector Subodh Kumar deposited two sealed parcels sealed with the seal of SK. He made entry in register no. 19 at serial no. 3278 Ex. PW16/C. Thereafter, on 11.06.2015, one mobile phone was deposited by Inspector Subodh Kumar and he made entry at serial no. 3280Ex. PW16/D; that on 20.06.2015, two sealed parcels, sealed with the seal of SK, were deposited by Inspector Subodh Kumar and he made entry at serial no. 3290 Ex. PW16/E. He further testified that on 13.08.2015, one sealed parcel was sent to BSA Hospital through constable Ajay vide RC No. 97/21/15 Ex. PW16/F; that on 14.08.2015, two sealed parcels were sent to BSA Hospital through constable Sandeep vide RC State VS Rajender Bharti @ Shalu and Ors. Page no. 32 of 144 FIR no. 499/15 PSSubhash Place No. 102/21/15 Ex. PW16/G; that on 20.08.2015, two plastic boxes sealed with the hospital's seal were sent to FSL Rohini through Ct. Pawan, vide RC No. 104/21/15 Ex. PW16/H. He further testified that on 21.08.2015, 12 sealed plastic containers and three sealed envelopes were sent to FSL, Rohini through Ct. Ajay vide RC No. 108/21/15 Ex. PW16/I.

32. PW17 ASI Mukesh, testified that on 08.06.2015, he was posted at PS Subhash Place. SHO briefed the staff that three boys were involved in a murder case. He along with Ct. Sandeep proceeded for the patrolling in his beat. At about 07.40 PM, they reached at DDA Park, GBlock, where a secret informer met them. He told them about the presence of Rajender @ Shalu in the GBlock park. They proceeded to the park with secret informer and apprehended Rajender @ Shalu in the park. He asked accused Rajender @ Shalu to accompany them to the PS, however he told that "mujhe kal bhi thane le gaye the aur chhod diya tha." He told accused Rajender that this is a investigation of a murder case and he should accompany them to the PS. He took accused Rajender @ Shalu to the State VS Rajender Bharti @ Shalu and Ors. Page no. 33 of 144 FIR no. 499/15 PSSubhash Place PS and lodged a DD entry. He also produced accused Rajender @ Shalu before the IO Inspector Subodh Kumar. In the meantime brother of victim namely Sh. Vikas had come and had told to IO that Rajender @ Shalu had killed his brother. IO had recorded the statement of Sh. Vikas. Thereafter, accused Rajender @ Shalu was arrested and his personal search was taken. Accused Rajender was taken at the place of occurrence of murder and accused Rajender had pointed out about the place of murder and pointing out memo Ex.PW17/A was prepared by the IO. He further testified that at about 11.00 pm, he, Inspector Subodh Kumar, ASI Chhattar Singh, HC Ashok, Ct. Rameshwar, Ct. Sandeep with accused Rajender went for search of another accused. Accused Rajender made them roam here and there. Then accused Rajender told the police that the other accused who was involved in the murder with him, lives in Sector 24, Rohini. At about 05.00 am, they arrived in Sector 24, Rohini. Accused Rajender pointed out the house of another accused Rajpal @ Pardeep. Accused Rajpal was apprehended and inquiries were made from him.

State VS Rajender Bharti @ Shalu and Ors. Page no. 34 of 144 FIR no. 499/15 PSSubhash Place Inquiries were made from accused Rajpal about the clothes, which were worn by him on the date and time of occurrence. Thereafter, accused Rajpal got recovered his clothes which were hidden under the rods kept on a rehdi (hand cart) which was parked in front of the house of accused Rajpal. Accused Rajpal told that the said rehdi was of his father. IO seized the said blood stained clothes of accused Rajpal. Accused Rajpal was arrested and his personal search was conducted. He further testified that IO had recorded the statements of two public witnesses.

33. PW17 further testified that they took accused Rajender and Rajpal with them in search of third accused. At about 09.00 am, HC Ashok was told by a secret informer that third accused in the present case was Appu, who was standing on the turning point of FBlock, Shakurpur near ring road. Thereafter, he along with HC Ashok apprehended and arrested accused Appu @ Srikant. When they were apprehending accused Appu, at that time Mr. Vikas, who is brother of the deceased had also arrived there. Vikas also told that accused Appu had killed his brother. Accused Appu @ Srikant was also State VS Rajender Bharti @ Shalu and Ors. Page no. 35 of 144 FIR no. 499/15 PSSubhash Place personally searched and three mobile phones were recovered from his personal search. Then all the three accused were taken to the place where the murder was committed. Accused Appu had also pointed out towards the place of murder and pointing out memo was also prepared at the instance of accused Appu. Thereafter, IO recorded statement of Vikas. All the three accused were taken to the PS and their statements were recorded by the IO. Witness again said that thereafter all the three accused were taken for their medical examinations in a hospital. Thereafter, all the three accused were produced before the Ld. MM and were sent in judicial custody.

34. PW18 ASI Rajeev Kumar, testified that on 20.06.2015, he was posted at PS Subhash Nagar as Head Constable. On that day, he along with IO Insp. Subodh, accused Pradeep @ Raj Pal and Ct. Ashwani went to Sector 24, Rohini. On the way, IO requested 45 passersby to join the investigation but none agreed. Two public persons namely Raja and Sujat Hussain agreed to accompany them voluntarily. Accused Pradeep led them near Nallah, Sector 24, JJ Colony, Rohini. Accused put State VS Rajender Bharti @ Shalu and Ors. Page no. 36 of 144 FIR no. 499/15 PSSubhash Place his one foot in the Nala and got recovered a wet cloth. Thereafter, IO unwrapped the said cloth and a buttondar knife was found therein. IO dried the cloth and the knife and after drying of the said knife a sketch of the knife was prepared. During his testimony this witness duly identified the knife already Ex.P4. This witness also gave the description and measurement of knife.

35. PW18 further testified that IO had prepared the site plan of the recovery of this knife. IO had recorded the statement of two public witnesses in his presence. Thereafter, accused Pradeep was taken to Bhagwan Mahavir Hospital for his medical examination and after his medical examination, he was produced in the court. He further testified that thereafter he along with IO went to Shop no. G5, G6, Best Sky Tower, NSP where Mr. Arun, i.e. owner of the said shops had handed over the DVR to the IO in his presence. Parcel of DVR was also prepared and it was sealed by IO. IO obtained the seal of SK from him which was handed over to him by IO near the Nallah. Thereafter, they went to the PS and deposited the case property in the Malkhana.

State VS Rajender Bharti @ Shalu and Ors. Page no. 37 of 144 FIR no. 499/15 PSSubhash Place

36. PW19 Sh. Ajay Karar, Sr. Scientific Officer (Chemistry), FSL Rohini, proved his detailed report as Ex.PW19/A.

37. PW20 Dr. C.P. Singh, Asstt. Director, Physics, FSL Rohini testified that on 18.08.2017, one sealed envelop was received in the physics division of FSL, Rohini through Computer Forensic Unit of FSL. On opening the envelop, one pen drive of HP make having 8GB capacity containing six relevant CCTV video files in folder namely "Relevant Video Files" was found. On Laboratory examination of CCTV Video Files, it was observed that Video File contained continuous video footages of CCTV recordings. There was no indication of alteration in the continuous video footages on the basis of frame by frame examination. He proved his detailed report as Ex. PW20/A.

38. PW21 Dr. Naresh Kumar, Sr. Scientific Officer, Biology, FSL had done DNA profiling. He proved his detailed report as Ex.PW21/A.

39. PW22 Surender Kumar is the Nodal Officer, Bharti Airtel. He produced the summoned record pertaining to State VS Rajender Bharti @ Shalu and Ors. Page no. 38 of 144 FIR no. 499/15 PSSubhash Place mobile number 9560470116 allegedly used by PW2. He testified that as per the record the said number was alloted to Sh. Vikas s/o Satvir. He proved the CDR of the said number from 01.06.2015 to 10.06.2015 as Ex.PW22/A; tower location chart as Ex.PW22/B; certificate u/s 65B Indian Evidence Act as Ex.PW22/C; customer application form Ex.PW22/D (I and II) and copy of Aadhar card of customer as Ex.PW22/E.

40. PW23 Vivek Kumar, Jr. Forensic/Asstt. Chemical Examiner (DOC), FSL Rohini testified that on 29.03.2017 one sealed parcel sealed with the seal of SK was received in the laboratory and the same was allotted to him for its examination. On opening the sealed parcel, one Hikvision made DVR (model no. DS7108HWISH) bearing serial no. 470037657 was found and the same was marked as DVR 1 and its western digital made hard disk drive bearing serial no. WCC4J0USZRCP of 1TB capacity was marked as HDD1. The exhibit hard drive mark HDD1 was forensically cloned on a sterile storage media and clone storage media was analyzed with the help of DVR marked as DVR1. The requisite data of dated 07.06.2015 State VS Rajender Bharti @ Shalu and Ors. Page no. 39 of 144 FIR no. 499/15 PSSubhash Place from 15:45 hrs to 17:55 hrs of camera no. 2 and 4 was retrieved from the HDD1 and the same was provided in one Pen drive which was marked as PD1. After retrieval of data, the pen drive (PD1) was sealed with the seal FSL V:K DELHI and was internally forwarded to the physics division of the laboratory for its further examination. He proved his detailed report as Ex. PW 23/A.

41. PW24 Rajeev Ranjan is the Nodal Officer, Tata Tele Services Ltd. He produced the summoned record pertaining to mobile number 9211228869, allegedly used by PW9. As per record the said number was alloted to Sh. Prakash Pasi s/o Thakur Prasad Passi. He proved the CDR of the said number from 01.06.2015 to 30.06.2015 as Ex.PW24/A; tower location chart as Ex.PW24/B; certificate u/s 65B Indian Evidence Act as Ex.PW24/C; customer application form Ex.PW24/D and copy of Aadhar card of customer as Ex.PW24/E.

42. PW25 Sh. Israr Babu, is the Alternate Nodal Officer, Vodafone Idea Ltd. He produced the summoned record pertaining to mobile number 7503949750. As per record the said number was alloted to Sh. Deepak s/o State VS Rajender Bharti @ Shalu and Ors. Page no. 40 of 144 FIR no. 499/15 PSSubhash Place Satvir. He proved the CDR of the said number from 01.06.2015 to 10.06.2015 as Ex.PW25/A; tower location chart as Ex.PW25/B; certificate u/s 65B Indian Evidence Act as Ex.PW25/C; customer application form Ex.PW25/D and copy of Aadhar card of customer as Ex.PW25/E.

43. PW26 Dr. Parvez, Sr. Medical Officer, Max Hospital, Shalimar Bagh testified that on 07.06.2015' he was posted at Max Health Care Pitam Pura, Delhi. He examined Deepak, S/o. Satvir aged about 28 years, male, with registration no. 335622. Patient was brought in triage (emergency) by Vikas (brother) with the alleged history of assault and stabbed at about 5:30 pm on that day at near Best Sky Tower, as stated by Vikas (brother). No history of LOC (loss of consciousness), vomiting, ENT Bleed. On examination patient was agitated , irritable , pulse not recordable, non palpable , BP not recordable,chest air entry decreased (right side) CVS (cardio vascular system) - S1 S2 (heart sound) was audible , pupil bilaterally semi dilated , sluggish reacting.

On local examination : State VS Rajender Bharti @ Shalu and Ors. Page no. 41 of 144 FIR no. 499/15 PSSubhash Place

1. Incised looking wound of approx. 4 c.m. size , about 1 inch medial to right nipple and it was bleeding

2. Incised looking wound of approx. 4 c.m. size above 1 inch below injury no. 1 and it was bleeding.

3. Approx. 13 c.m. long incised looking wound over left hypochondriac region near costal margin with large look of small bowel protruding with areas of laceration in small bowel and it was bleeding profusely.

4. Incised looking wound of 1 cm size over left inguinal region and it was bleeding.

5. Lacerated wound of about 2 c.m. X 1 C.M. over left elbow.

44. He further testified that patient was given emergency resuscitation which started immediately. Anaesehetist on duty was called - who had attended immediately and surgeon Dr. Arinjaya Jain was also called , who attended the patient in emergency/causality. The intubation was done with ambu ventilation . Chest tube was inserted by the surgeon . Antiseptic dressing with suturing of the wound was done. Blood and platelates were arranged for transfusing to the patient.

State VS Rajender Bharti @ Shalu and Ors. Page no. 42 of 144 FIR no. 499/15 PSSubhash Place Patient was admitted for further evaluation, management and treatment under department of surgery. Clothes were sealed and handed over to IO. Articles taken from the personal search of the patient were also handed over to IO. He proved the MLC report as Ex.PW26/A. He also prepared death summary Ex.PW26/B of Deepak.

45. PW27 Dr. Vijay Dhankar, Specialist and Head of Department (Forensic Medicine), BSA Hospital, testified that on 08.06.2015, he alongwith Dr. Narayan Dabas , Sr. Resident conducted postmortem examination on the body of one Deepak, aged about 28 years male , on the request of Inspector Subodh Kumar, PS Subhash Place. On examination they found multiple external injuries and corresponding internal injuries on the body of the deceased. In their opinion death was due to hemorrhagic shock consequent to stab injuries over the right side of the chest. All injuries were antemortem and fresh in duration prior to death. Injury no. 1, 2 & 4 as mentioned in the PM report , individually as well as combined together were sufficient to cause death in the State VS Rajender Bharti @ Shalu and Ors. Page no. 43 of 144 FIR no. 499/15 PSSubhash Place ordinary course of nature. Injury no. 1 to 6 could be caused by a pointed single edged sharp weapon. He proved the detailed PM report running in 7 pages as Ex. PW 27/A. He further testified that after postmortem examination blood sample on gauze, viscera alongwith blood sample and clothes of the deceased were preserved , sealed and handed over to police.

46. PW27 further testified that on 13.08.2015 a request was received from Inspector Subodh Kumar PS Subhash Place for opinion regarding the weapon of offence. A copy of the PM report and a parcel sealed with the seal of SK were submitted alongwith the request. The parcel was opened and found containing a one side sharp edged steel knife, the same was examined viz a viz the injuries mentioned in the PM report. They opined that the injuries mentioned in the PM report could be caused by the knife examined. He proved the detailed subsequent opinion as Ex. PW27/B. They also prepared a schematic digram of the weapon on the said opinion. After examination the weapon was sealed with the seal of department and handed over to police. Thereafter on State VS Rajender Bharti @ Shalu and Ors. Page no. 44 of 144 FIR no. 499/15 PSSubhash Place 14.08.2015, a request was received from Inspector Subodh Kumar PS Subhash Place for opinion regarding the cuts on the clothing of deceased. A copy of the PM report alongwith two parcels, i.e. parcel no. 1 sealed with the seal of MAX and parcel no. 2 sealed with the seal of FM Dr. BSAH were submitted alongwith the request. The parcels were opened and found containing a shirt, pant and underwear . The same were examined viz a viz the injuries mentioned in the PM report and the knife. They gave their opinion that cuts corresponding to the injuries mentioned in the PM report were present on the clothes and the same could be caused by the knife already examined by them. He proved the detailed subsequent opinion as Ex. PW27/C (running into two pages). They also prepared schematic diagrams of the clothes examined on their opinion. After examination the clothes were sealed with the seal of department and handed over to police.

47. PW28 Inspector Rajesh Kumar, received the FSL result duly marked by SHO for filing the same in the court. He accordingly filed the same in court.

State VS Rajender Bharti @ Shalu and Ors. Page no. 45 of 144 FIR no. 499/15 PSSubhash Place

48. PW29 ASI Ashok Kumar, testified that on 07.06.2015, he was posted in PCR as Head Constable, IC Van, Commander 72. At about 5:40 PM, their van was parked, behind Pearl Business Park building near the parking. One public person namely Ashish s/o Ramesh r/o 4/28, M Block, Model TownIII, Delhi had come and told that one man was lying on the road near the park opposite Fun Cinema and that he was attacked with a knife. They immediately arrived at the spot and found that there was a crowd of 15/20 persons and one boy was trying to make injured sit on his motorcycle. They made to sit injured in their van and the boy accompanying them also sat in their van. He had informed to the control room through wireless set and told that they were taking the injured to the Max Hospital. The boy who was trying to make sit injured on his motorcycle had told them his name as Vikas and also told that the injured was his brother. Injured and his brother Vikas had told the name of injured as Deepu s/o Satbir and their address was told by Vikas as J395, Shakurpur, J. J. Colony. Within two minutes they had admitted the injured in the State VS Rajender Bharti @ Shalu and Ors. Page no. 46 of 144 FIR no. 499/15 PSSubhash Place Max Hospital, N.S.P Complex and had handed over the injured to the doctor for treatment. After about 10 minutes IO ASI Rakesh had also arrived and SHO had also arrived there. They had informed to their command room and sought permission to leave the spot. They had admitted Deepu @ Deepak in conscious condition in the Max Hospital.

49. PW30 Susheel Bala Dagar, the then MM testified that on 19.06.2015, all accused persons were produced before her in muffled face for conducting TIP. However, accused R. Shrikant and accused Pradeep refused to get the TIP conducted. She proved TIP proceedings of accused R. Shrikant and Pradeep as Ex.PW30/A and Ex.PW30/B. However, accused Rajender @ Shalu stated that he wanted to get his TIP conducted. Accordingly his TIP was fixed for 23.06.2015. Thereafter, on 23.06.2015, accused Rajender @ Bharti refused to join the TIP proceedings in Tihar Jail. She proved the TIP proceedings of accused Rajender as Ex.PW30/C.

50. PW31 Shri Ramesh Assistant Clerk, Under Secretary Home (General), Delhi Administration, proved State VS Rajender Bharti @ Shalu and Ors. Page no. 47 of 144 FIR no. 499/15 PSSubhash Place the original notification dated 17.02.1979 along with attested copy of Notification duly attested by Superintendent of Home Department as Ex.PW31/A.

51. PW32 SI Rakesh Kumar, testified that on 07.06.2015, he was posted as ASI in PS Subhash Place. On that day he was on emergency duty from 8:00 am to 8:00 pm. On receipt of DD No. 26A regarding knife blow, he alongwith Ct. Mahesh reached at Max Hospital, Pitam Pura, Delhi. Injured was found under treatment in the hospital. Inspector Subodh also reached in the hospital. Vikas i.e. brother of injured also met in the hospital. Inspector Subodh recorded statement of Vikas. Garment of deceased were also handed over by the hospital staff in sealed condition to Inspector Subodh. Thereafter they went to the spot i.e. Best Sky Tower , NSP. Crime team also reached at the spot. Blood stained earth control, earth control from park as well as from the road were also lifted and kept in separate plastic containers. They were wrapped in separate cloth pieces and sealed with the seal of SK and were taken in police possession vide seizure memo Ex. PW 32/A. The garments of the State VS Rajender Bharti @ Shalu and Ors. Page no. 48 of 144 FIR no. 499/15 PSSubhash Place deceased which were taken from the hospital were sealed with the seal of hospital and were taken in possession vide seizure memo Ex. 32/B. Shirt of Vikas , which was blood stained was also taken in police possession after sealing the same with the seal of SK. IO Inspector Subodh Kumar had also recorded the statement of eye witness but he did not remember their names. HC Ashok was sent to the police station for getting the FIR registered.

52. PW33 HC Manoj Kumar, had delivered the copy of FIR to area Magistrate, DCP and Joint CP.

53. PW34 Inspector Subodh Kumar, is the IO of case.

He has deposed on the lines of chargesheet filed by him.

54. All the prosecution witnesses were crossexamined by learned defence counsels, relevant part of their cross examination would be discussed at appropriate stage of judgment.

55. Entire incriminating evidence was put to accused persons at the time of recording of their statement u/s 313 Cr.PC.

56. Accused Rajender Bharti stated that he is innocent State VS Rajender Bharti @ Shalu and Ors. Page no. 49 of 144 FIR no. 499/15 PSSubhash Place and has been falsely implicated in this case to satisfy the anger of mob which had surrounded the police station on 07.06.2015.

57. Accused Rajpal stated that this is a false case. He is innocent and has been falsely implicated by the IO.

58. Accused R. Shrikant stated that this is a false case against him and he has been falsely implicated.

59. Accused Rajpal @ Pradeep and R. Shrikant, chose not to lead evidence in defence. However, accused Rajender Bharti chose to lead evidence in defence.

60. DW1 ASI Kartar Singh, produced the original DD register of police station Netaji Subhash Place bearing DD no. 26A dated 08.06.2015 at 02.45 pm. As per the said DD no. 26 an information was recorded through operator that the police officials had taken the brother of caller with mobile number 9810303220 (DW2, sister of accused Rajender Bharti) on 07.06.2015. The receipt of PCR call was recorded and telephonic information was given to SI Pradeep for appropriate action. He proved the said DD no.26A as Ex.DW1/1.

61. DW2 Ms. Narmada Singh is the sister of accused State VS Rajender Bharti @ Shalu and Ors. Page no. 50 of 144 FIR no. 499/15 PSSubhash Place Rajender Bharti. She testified that on 07.06.2015, at about 56 pm there was a function (KUA POOJAN) in her family on account of newly born nephew, who was born on 28.04.2015. At the time of Pooja, all family members including accused Rajender were present at home. At about 9.00 pm three police officials namely SI Kali Charan, constable Amit and Constable Gaurav had came to their shop cum residence and took his brother to police station. After half an hour constable Amit came with one another police personnel and had taken the mobile phone of her brother bearing no. 8285666877. He also gave receipt for taking the mobile phone of her brother Rajnder. The receipt Ex.DW2/1 was signed by constable Amit in her presence. She further testified that constable Amit also gave his number as 8750589797. When her brother did not return till late night, she called at the said number of constable Amit and asked about the whereabouts of her brother Rajender. Constable Amit replied that her brother Rajender is at police station in the custody of constable Sandeep. He also gave the number of constable Sandeep. Thereafter, she called at State VS Rajender Bharti @ Shalu and Ors. Page no. 51 of 144 FIR no. 499/15 PSSubhash Place the mobile number of constable Sandeep and he made her to have conversation with her brother Rajender at about 12.00 midnight in the intervening night of 07/08.06.2015. At that time constable Sandeep told her that a murder had taken place at NSP and as the name of accused Appu is there, they had taken her brother to interrogate him about Appu. He further informed her that there was some riot outside police station so her brother would be let to go in the morning. Her brother did not return by the next day morning. Thereafter, she again called constable Sandeep at his mobile but he did not pick her phone. In the afternoon she made a call at PCR at around 2.00 pm. Her call was recorded vide DD no. 26A PSNSP. She also called SHO PSNSP Inspector Kumar after receiving his number from PCR. SHO informed her that at that time he was busy at cremation ground and her brother would be released by the evening.

62. She further testified that on the next day i.e. 09.06.2015, a call was received by her father on his mobile phone from Inspector Subodh Kumar and it was informed that her brother Rajender has been arrested in State VS Rajender Bharti @ Shalu and Ors. Page no. 52 of 144 FIR no. 499/15 PSSubhash Place a murder case. She immediately called SHO Kishore Kumar that her brother has been falsely implicated in the murder case. Thereafter, she along with her mother went to PSNSP and met with Inspector Subodh Kumar. She asked him why he had falsely implicated his brother Rajender. He replied that her brother was seen fleeing from the spot and the mobile phone of her brother was also found at the spot. She informed Inspector Subodh Kumar that the phone of her brother was taken by constable Amit and he was falsely planting the same in order to implicate her brother. At this, Inspector Subodh Kumar returned the phone of her brother by saying "Lo nahi plant karta". She also informed Inspector Subodh Kumar about the receipt of mobile phone being given by constable Amit. Thereafter, she met ACP Surender and made a complaint to him against false implication of his brother. She also made a written complaint to Commissioner of Police but no action was taken. She proved her mobile bill of phone no. 9810303220 through which she has communicated with police officials as Ex.DW2/2; certificate u/s 65B Indian Evidence Act as State VS Rajender Bharti @ Shalu and Ors. Page no. 53 of 144 FIR no. 499/15 PSSubhash Place Ex.DW2/3, complaint to Commissioner of Police as Ex.DW2/4, CDR of her brother accused Rajender as Ex.DW2/5. She also moved an application before learned CMM for monitoring the investigation and to collect the CCTV footage of the cameras installed at or around the place of incident. She proved the certified copy of the report filed by IO in response to her application, as Ex.DW2/6; DVD containing a video received on her whatsapp number as Ex.DW2/7 and certificate u/s 65B Indian Evidence Act as Ex.DW2/8.

63. Detailed final arguments were addressed by learned Addl. PP Sh. Pankaj Kumar Ranga assisted by learned counsel Sh. Sanjay Suri for the complainant, Sh. R.S. Yadav & Sh. Anil Bharadwaj learned counsels for accused Rajender Bharti, Sh. K. Kaushik learned counsel for accused Rajpal and Sh. S.S. Saini learned counsel for accused R. Shrikant.

64. The court has also gone through the material available on record.

65. It is argued by learned counsel Sh. Sanjay Suri, for the complainant that accused persons are habitual State VS Rajender Bharti @ Shalu and Ors. Page no. 54 of 144 FIR no. 499/15 PSSubhash Place offenders and previous record of accused Rajender Bharti and R. Shrikant @ Appu is attached with the charge sheet and both of them are involved in the commission of offence committed in the present case. It is further argued that in the present case electronic evidence i.e. video recording has been brought on record. In addition thereto the video recording is corroborated by the ocular testimony of witnesses. It is also submitted that another set of evidence available in the present case is the dying declaration of deceased Deepak, which was given by him to his brother PW2 Vikas, before shifting him from the spot to hospital. Sh. Suri has also submitted that there is sufficient link evidence to complete the chain of events and to suggest that the crime could not have been committed except by the accused persons. He has also argued that there are vital admissions in the cross examination of witnesses by the accused persons. It is argued that accused Rajender Bharti had taken a defence of alibi but has failed to prove the same. He has submitted that though accused Rajender Bharti had examined DW2 to prove his defence of alibi but he failed State VS Rajender Bharti @ Shalu and Ors. Page no. 55 of 144 FIR no. 499/15 PSSubhash Place to prove that there was any function in his family or that he was present in the said function on 07.06.2015. He vehemently argued that had there been any function at least some photographs or video of function should have been taken by either of his family member from their mobile or through any other electronic device but no photograph or video or the mobile has been brought on record to suggest that there was KUA PUJAN ceremony in the family of accused Rajender Bharti on 07.06.2015 or that he was present there. He also argued that even the birth certificate of the new born child for which the KUA PUJAN ceremony was allegedly being held has not been brought on record. Sh. Suri has therefore submitted that adverse inference has to be drawn against the accused persons for not proving their defence through defence witnesses.

66. Learned Addl. PP has added to the submissions made by learned counsel for the complainant thereby submitting that PW9 Ms. Baby has given clinching evidence against accused persons which have been corroborated by PW3 and PW4. It is also argued that State VS Rajender Bharti @ Shalu and Ors. Page no. 56 of 144 FIR no. 499/15 PSSubhash Place the testimony of PW2 is corroborated by MLC Ex.PW26/A. As per the MLC, injured had arrived at Max hospital at about 5.45 pm and was brought by his brother PW2 Vikas. It is further argued that before picking up the injured from the spot he was conscious. As per the testimony of PW2, his brother (injured) has disclosed the name of assailants to him. It is also argued that adverse inference is liable to be drawn against the accused persons as all of them had refused TIP proceedings.

67. Learned Addl. PP has drawn the attention of the court to the document Ex.P2 i.e. PCR message sent by PW29 in which it is mentioned "injured ko hosh mei hospital mei admit karva dia hein". It is further argued that testimony of PW2 is further corroborated by scientific evidence. He argues that as per testimony of PW2 his clothes were blood stained at the time picking up the injured and the said clothes were seized by IO. As per the FSL report the blood of injured was found on the clothes of PW2 Vikas. It is therefore argued that there is direct evidence of dying declaration and the consistent testimony of independent witnesses. It is further argued State VS Rajender Bharti @ Shalu and Ors. Page no. 57 of 144 FIR no. 499/15 PSSubhash Place that in addition thereto there is recovery of weapon of offence at the instance of one of the accused i.e. Rajpal @ Pardeep. He has submitted that learned defence counsels have only pointed out some minor immaterial contradictions in the testimony of witnesses which are liable to be ignored in view of the judgment in the case of State of Rajasthan Vs Kalki, AIR 1981 SC 1390, wherein the Hon'ble Apex Court had held that a witness who is a natural one and is only possible eyewitness, in the circumstances of the case, cannot be said to be interested witness as he had no interest in protecting the real culprit and falsely implicating the respondents. He has also relied upon the judgment in the case of State of U.P. Vs Naresh and Ors., (2011) 4 SCC 324, wherein Hon'ble Apex court observed that some discrepancies are bound to occur in criminal cases due to normal errors of observation, errors of memory, lapse of time.

68. He also placed reliance in this respect upon recent judgment of the Hon'ble Apex Court in Smt. Shamim Vs State (GNCT of Delhi), Criminal Appeal No. 56 of 2018, wherein the Hon'ble Supreme Court held that State VS Rajender Bharti @ Shalu and Ors. Page no. 58 of 144 FIR no. 499/15 PSSubhash Place while appreciating the evidence of witness the approach of court must be to see whether the evidence of the witness read as a whole inspires confidence. It was held "The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it". It was further held that once an impression is formed that the testimony of the witness as a whole inspires confidence, the court is to scrutinize the evidence more particularly keeping in view the drawbacks, deficiencies and infirmities and to evaluate them to find out whether it is against the general tenor of evidence and whether the earlier evidence is taken to render it unworthy of belief. Minor discrepancies of trivial matters not touching the core of the case, hypertechnical approach by taking sentences torn out of context here and there from the State VS Rajender Bharti @ Shalu and Ors. Page no. 59 of 144 FIR no. 499/15 PSSubhash Place evidence, attaching importance to some technical error without going to the root of matter would not ordinarily permit rejection of the evidence.

69. Learned Addl. PP has further relied upon the landmark judgment of Iqbal Moosa Patel Vs State of Gujrat (2011) 2 SCC 198, wherein the Hon'ble Apex Court held as under: That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with sentence of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt .......

It is true that under our existing jurisprudence in a criminal matter, we have to proceed with presumption of innocence, but at the same time, that presumption is to be judged on the basis of conceptions of a reasonable prudent man.

State VS Rajender Bharti @ Shalu and Ors. Page no. 60 of 144 FIR no. 499/15 PSSubhash Place Smelling doubts for the sake of giving benefit of doubt is not the law of the land.

70. In the case of Sucha Singh and Anr. Vs State of Punjab (2003) 7 SCC 643, it was held by Hon'ble Apex court : ...... Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. (See Gurbachan Singh V. Satpal Singh AIR 1990 SC

209). Prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and commonsense. It must grow out of the evidence in the case.

If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because State VS Rajender Bharti @ Shalu and Ors. Page no. 61 of 144 FIR no. 499/15 PSSubhash Place human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Prof beyond reasonable doubt is a guideline, not a fetish.

71. Learned Addl. PP has also relied upon the judgment delivered by Hon'ble Apex Court in Harbeer Singh Vs Sheeshpal and Ors, Criminal Appeal Nos. 16241625 with State of Rajasthan Vs Sheeshpal and ors., Criminal Appeal Nos. 217218 of 2013, wherein Hon'ble Apex Court observed :

20.However, we do not wish to emphasize that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily bases on the evidence of seemingly interested witnesses.

State VS Rajender Bharti @ Shalu and Ors. Page no. 62 of 144 FIR no. 499/15 PSSubhash Place

72. He argued that in the case of Raghubir Singh Vs State of UP (1972) 3 SCC 79, it has been held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need be produced without unnecessary and redundant multiplication of witnesses.

73. Learned counsel for the complainant has relied upon the following judgments :

1. Rakesh and Anr. Vs State of Madhya Pradesh, Criminal Appeal No. 339 of 2008, decided on 19.09.2011. In the said case the Hon'ble Apex Court had believed the testimony of the witness, who had taken the injured to the hospital and thereafter had lodged FIR in the police station after about an hour of incidence, the distance of the police station from the place of occurrence was 01 km. The Hon'ble Apex court held that there was no possibility of the criminals falsely enroped as promptness in lodging the FIR shows that there was no time for manipulation. Counsel for the complainant submits that even in the present case PW2 had taken his State VS Rajender Bharti @ Shalu and Ors. Page no. 63 of 144 FIR no. 499/15 PSSubhash Place injured brother Deepak to the hospital. Thereafter, PW2 immediately gave his statement to IO for lodging the FIR. There was no time gap to manipulate the facts by the IO or by PW2.

2. Rajender @ Chela and Anr. Vs State of Haryana, Criminal Appeal No. 343DB of 2008. In this case Hon'ble Punjab and Haryana High Court held that 08 hours delay in lodging the FIR was not fatal. Counsel for the complainant submit that even if the court comes to a conclusion that there was some delay in recording statement of PW2 for lodging FIR, same is not prejudicial to the prosecution case.

3. Motiram Padu Joshi and Ors. Vs State of Maharashtra, Criminal Appeal No. 1479 of 2015, decided on 10.07.2018. In the said case the Hon'ble Apex court held that nonmentioning the name of witnesses or the names of assailants in the FIR, is not fatal to the prosecution case. Learned counsel for the complainant has submitted that the PCR form Ex.P2 in this case, does not contain the name of PW2 Vikas or of the assailants, but no adverse inference should be drawn State VS Rajender Bharti @ Shalu and Ors. Page no. 64 of 144 FIR no. 499/15 PSSubhash Place against the prosecution for this reason because the purpose of filling up the PCR form was only to communicate the information for setting the further procedure and machinery in motion as per law.

4. Jesu Asir Singh and ors. Vs State through Inspector of Police, Criminal Appeal No. 1090 of 2007, decided on 20.08.2007, to submit that case of accused persons cannot be covered in any exception to section 300 IPC.

5. Manjeet Singh Vs State of Himachal Pradesh, Criminal Appeal No. 1695 of 2005, decided on 25.04.2014, to submit that the burden of proof of the plea of alibi taken by accused Rajender Bharti, during his crossexamination was upon accused.

6. Gudu Ram Vs State of Himachal Pradesh, Criminal Appeal No. 862 of 2008, decided on 04.12.2012, to submit that the evidence of hostile witness need not be completely rejected only because he has turned hostile.

7. Hiralal Pandey and Ors. Vs State of UP, State VS Rajender Bharti @ Shalu and Ors. Page no. 65 of 144 FIR no. 499/15 PSSubhash Place Criminal Appeal No. 65 of 2008, decided on 17.04.2012, to submit that even if there are certain lapses in the investigation it does not affect the prosecution case unless they are such as to create reasonable doubt about the prosecution story or to seriously prejudice the defence of accused.

8. Tej Pratap Singh Vs State, Crl. Appeal No. 898 of 2011, decided on 12.08.2011, to submit that irregularity or illegality in investigation should not generally benefit the accused persons unless grave prejudice is caused to them by any defect in investigation.

9. Sahabuddin and Ors. Vs State of Assam, Criminal Appeal No. 629 of 2010, decided on 13.12.2012, to submit that statement of related witness can be relied upon by court as long as it is trustworthy, truthful and duly corroborated by other evidence. He thus argued that the testimony of PW2 cannot be brushed aside just because this witness is real brother of deceased.

10. Sukhchain Singh Vs State of Haryana and ors., Appeal (Crl.) 57 of 1996, decided on State VS Rajender Bharti @ Shalu and Ors. Page no. 66 of 144 FIR no. 499/15 PSSubhash Place 24.04.2002. In the said case name of prosecution eye witness was found not mentioned in the MLC of deceased. Hon'ble High Court held that because the name of eye witness was not mentioned in the MLC, he had not accompanied the injured. The Hon'ble Supreme Court held that such a assumption is not referable to any legal or factual presumption and that it was in evidence that the eyewitness accompanied by his other relatives had taken the injured to the hospital. Counsel for complainant submits that his case is at a better footing than the case of Sukhchain Singh (supra) because the name of PW2 Vikas is mentioned in MLC Ex.PW26/A.

74. Percontra learned counsels for accused persons argued that their respective clients are falsely implicated in the present case by the IO in order to satisfy the mob outrage and there is no evidence against either of accused.

75. Learned Sh. K. Kaushik, appearing on behalf of accused Rajpal @ Pradeep has submitted that from the testimonies of the IO as well as other police witnesses it is clear that on 07.06.2015, after the murder of deceased State VS Rajender Bharti @ Shalu and Ors. Page no. 67 of 144 FIR no. 499/15 PSSubhash Place a large crowd had gathered outside PSNetaji Subhash Place. At that time police had already picked accused Rajender Bharti. In order to satisfy mob anger police falsely implicated accused Rajender Bharti and thereafter accused Rajpal. He has also submitted that IO has purposely not collected the best evidence in the present case and has produced selective evidence in order to fabricate the case against accused persons. Recovery of weapon of offence as well as clothes at the instance of accused Rajpal is stated to be planted. He has also argued that material manipulation upon the documents is also clear on the face of record. He alleged that IO did not file the the complete CCTV footage of the crime scene though entire area is under CCTV surveillance.

76. Learned Sh. R.S. Yadav appearing for accused Rajender Bharti has also submitted that his client was not present at the spot which is clear from the testimony of PW2, from the documents brought on record during the statement of his client as well as by examining defence witnesses. He has submitted that a detailed inquiry was conducted qua illegal lifting of his client from State VS Rajender Bharti @ Shalu and Ors. Page no. 68 of 144 FIR no. 499/15 PSSubhash Place his house/shop, in which the fact that accused Rajender Bharti was lifted on 07.06.2015 at about 9.00 pm from his house was established. He also argued that IO did not place CDR of accused Rajender Bharti on record because the same would have proved his innocence. The said CDR was brought on record by accused during his statement u/s 313 Cr.PC and was further relied upon by DW2. He argued that an application u/s 156 of Cr. P.C. was filed by the accused in the court of concerned Ld. CMM for monitoring the investigation and praying that the CCTV footage of the camera installed at or around the place of occurrence be collected by the IO. It is further submitted that the IO had even filed a reply of the said application but did not put the relevant CCTV footage on record which goes long way to show that his client has been falsely implicated in the present case.

77. Sh. S. S. Saini, learned counsel for accused R. Shrikant has also submitted that none of the witness has identified his client in the CCTV footage Ex. PW 3/A and the testimony of PW 2 and PW 9 is not at all believable. PW2 is highly interested witnesses, who has been State VS Rajender Bharti @ Shalu and Ors. Page no. 69 of 144 FIR no. 499/15 PSSubhash Place planted in the present case by the IO. PW 9 is also and infirm witness whose statement u/s 161 Cr.PC was recorded after 2 ½ months of the incidence.

78. All the learned defence counsels argued that there are material contradictions in the testimony of the witnesses which reflect that the witnesses have been tutored and the IO had already designed the fate of the investigation and accordingly planted the witnesses after falsely arresting the accused persons in order to satisfy mob anger which was pelting stones at Police Station NSP after the death of deceased Deepak.

79. They also argued that there is no possibility of deceased making any dying declaration especially to PW2 and that FIR is antetimed which is clear from the facts and circumstances.

80. After hearing lengthy final arguments and in consultation with learned Addl. PP for state, learned counsel for complainant and learned counsels for accused persons on 09.04.2019, in compliance of section 354 (1) (b) Cr.PC, following points for determination were framed:

1. Whether the case of oral dying declaration made State VS Rajender Bharti @ Shalu and Ors. Page no. 70 of 144 FIR no. 499/15 PSSubhash Place to PW2 by the deceased is not probable?

2. Whether the testimony of PW2 or any material portion thereof is not reliable?

3. Whether the FIR is antetimed, if so its effect?

4. Whether accused Rajender Bharti has proved his alibi, if so it effect?

5. What is the effect of the testimony of PW3, PW4 and PW9 in the light of the electronic evidence/CCTV footage?

6. What is the effect of refusal of TIP by accused persons?

7. Whether recovery of weapon of offence and clothes of accused Rajpal at his instance stands proved?

8. What is the impact of delay in recording statements u/s 161 Cr.PC of public witnesses?

9. Whether the chain of events or circumstantial evidence against accused persons is complete?

10. Whether the investigation is not fair and proper, if so its effect?

11. Whether the prosecution is able to prove its case, if so, for which offences and against which of the State VS Rajender Bharti @ Shalu and Ors. Page no. 71 of 144 FIR no. 499/15 PSSubhash Place offender(s)?

81. Court has considered arguments advance by the learned counsels for parties and has also carefully gone through the evidence and material available on record.

82. Now we shall deal each point for determination one by one.

1. Whether the case of oral dying declaration made to PW2 by the deceased is not probable :

83. As already discussed it is argued on behalf of State that as per the testimony of PW 2 as well as, as per Ex. P2 i.e. information given by PCR van to the control room, injured was conscious prior to his admission in Max Hospital, therefore, the dying declaration given by the injured Deepak (since deceased) to PW2, his real brother is natural and probable. It is also argued that Ex.PW26/A i.e. MLC of the deceased also reflects that the injured was admitted in hospital by PW 2. In addition thereto PW 26 i.e. Dr. Parvesh , Senior Medical Officer, who examined the injured had testified that the patient State VS Rajender Bharti @ Shalu and Ors. Page no. 72 of 144 FIR no. 499/15 PSSubhash Place was brought by PW2 and particulars of incidence were narrated by him.

84. Court is however, of the opinion that on the spot presence of PW2 as well as the giving of dying declaration to him is under serious shadow of doubt for the following reasons: I. Location of mobile phone of PW2:

85. As per testimony of PW2, he received the call from his brother i.e. deceased Deepak at about 5:205:25 pm when he was coming from Keshav Puram and thereafter within 10 minutes he reached Netaji Subhash Place. The CDR of this witness was collected by the IO during the course of investigation and was brought on record as Ex.PW22/A. In his crossexamination dated 25.02.2019 at page no.5, IO admitted "As per CDR Ex.PW22/A at page no. 2 the location of phone no. 9560470116 belonging to complainant Vikas on 07.06.2015 at about 17:28:20 to 17:52:14 hours was at tower no. 13203, 13201, 37127 & 3125 corresponding to the area of Tri Nagar. The distance of Max Hospital, Pitam Pura is 2 to 3 km from Tri Nagar".

State VS Rajender Bharti @ Shalu and Ors. Page no. 73 of 144 FIR no. 499/15 PSSubhash Place

86. Hence on 07.06.2015 between 17:28:20 hrs to 17:52:14 hrs i.e. time during which PW2 was suggested to be present at NSP, his CDR location was found to be at Tri Nagar. It is important to mention here that NSP is a busy commercial locality and further surrounded by residential/commercial localities and number of independent towers in and around the area are installed.

                    II.        Nonmentioning   the      name   of   PW2           in
          document Ex.P2:

87. The document Ex.P2 is the first information sent by PW29 HC Ashok Kumar who was posted in PCR van. Though this witness in his oral testimony has stated that PW2 had accompanied him to the hospital while admitting the injured for treatment at Max hospital but in the PCR messages sent by him twice, there is no mention of brother of injured i.e. PW2. As per this document information was given to PCR van by one Ashish (PW8) at the base of PCR. PW29 admitted in his crossexamination that in both the messages sent by him there was no mention of the brother of injured meeting State VS Rajender Bharti @ Shalu and Ors. Page no. 74 of 144 FIR no. 499/15 PSSubhash Place him before removing injured to hospital. Though he stated that he mentioned all the details in his log book but no such log book was produced in the court. In such circumstances adverse inference u/s 114 (g) Indian Evidence Act may be drawn against the prosecution that had this log book been produced the same would not have supported the case of prosecution.

III. Testimony of PW8 and MLC Ex.PW26/A:

88. PW8 is admittedly the first person who had seen the injured lying on road. Thereafter he informed PW29 at PCR base. In his testimony this witness stated that injured was lying in unconscious condition when he saw him. As per MLC at 5.45 pm, at the time of admission the patient was not fit for statement, as his pulse was not recordable/nonpalpable; BP was not recordable; air entry in chest decreased. Hence, it appears to be rightly submitted by defence counsel that though the injured may be conscious but might not be able to make disclosure at the time of lifting him up from the spot. According to PW29 it took only two minutes in admitting State VS Rajender Bharti @ Shalu and Ors. Page no. 75 of 144 FIR no. 499/15 PSSubhash Place the injured to hospital after lifting from from spot.

89. In addition thereto oral testimony of PW29 qua the presence of PW2 is also doubtful. PW29 in his oral testimony stated that when he visited the spot after receiving information from PW8, PW2 was trying to make injured sit on his motorcycle (PW2's).

90. On the other hand PW2 in his crossexamination dated 18.12.2017, stated that he had parked his motorcycle at a distance of about 1015 meters from the dead body of his brother Deepak and ran towards him. If PW2 had tried his brother to sit on his motorcycle, the motorcycle could not have been parked at a distance of about 1015 meters from the body of injured. The motorcycle would naturally be parked adjacent to his brother. Moreover, no motorcycle was seized during investigation and PW2 did not state that he attempted to make his brother sit on motorcycle.

91. As per testimony of witnesses the distance of PCR van from the spot is within 100 meters. After receiving the information PCR van might have reached the spot within minutes and within next two minutes injured was State VS Rajender Bharti @ Shalu and Ors. Page no. 76 of 144 FIR no. 499/15 PSSubhash Place admitted to hospital. Hence, there was little time interval left for PW2 to arrive at the spot and act as alleged.

IV. Non disclosure of the name of assailants by IO in documents:

92. Court has already discussed that in the first document i.e. PCR form Ex.P2 the name of PW2 is not mentioned. In addition thereto in the MLC Ex.PW26/A there is no disclosure of the names of the assailants. if PW2 admitted the deceased in hospital, he would have disclosed the name of assailants already known to him. Apart from this PW34 i.e. IO of the case prepared the brief facts of the case Ex.PW34/DA, for postmortem examination of the body of deceased. As per death summary Ex.PW26/D, deceased had died at 7.31 pm. In the brief facts Ex.PW34/DA there is no mention of the name of any of assailant. Learned counsels for accused persons have submitted that omission to mention the name of assailants in brief facts, after the death of injured is a vital defect leading to the conclusion that by the time IO prepared the application for postmortem, he State VS Rajender Bharti @ Shalu and Ors. Page no. 77 of 144 FIR no. 499/15 PSSubhash Place did not know the name of assailants. Had PW2 been present in the hospital prior to death of injured and had he met the IO, he would have definitely disclosed the name of assailants and there was no reason with the IO to not to mention the name of assailants or the particulars of the incidence in the brief facts. Learned defence counsels have relied upon judgment in the case of Sonu Arora Vs State 2010 (3) JCC 2354. In the said case Hon'ble High Court of Delhi had acquitted the accused because his role was not mentioned in the brief facts prepared by the IO despite the case of the prosecution that the statement of eyewitness had been recorded before brief facts were prepared. In the present case also the names and roles of accused persons were not mentioned in the brief facts prepared by IO though the statement of PW2 was already recorded.

V. Abnormal conduct of PW2:

93. In his crossexamination at page no. 3 dated 16.01.2018, this witness stated that he had not telephonically informed to his family members about the State VS Rajender Bharti @ Shalu and Ors. Page no. 78 of 144 FIR no. 499/15 PSSubhash Place incidence. The defence counsel suggested to him that because he was not himself aware about the incidence therefore he did not inform his parents about the same. Though he denied the suggestion but it is abnormal human conduct that a person would not inform his family about the attack on his brother. The fact that the family of deceased was not aware about the assailants and the manner of death is clear from statement of father of deceased recorded by IO on 08.06.2015 in the mortuary after the postmortem. IO Inspector Subodh Kumar in his crossexamination dated 14.03.2019 at page no. 1 stated " It is correct that it is mentioned in statement of Satbir father of deceased that whosoever had murdered my son action be taken against him. It is correct that by the time the statement of Satbir was recorded, he was not aware who had murdered Deepak".

94. Thus, the general statement that action be taken against whosoever had murdered Deepak coupled with the admission of IO that by that time PW1 was not aware of assailants of Deepak reflects that PW2 did not tell the name of assailants to his father. In all State VS Rajender Bharti @ Shalu and Ors. Page no. 79 of 144 FIR no. 499/15 PSSubhash Place probabilities it appears that by the time of death of deceased, PW2 was himself not aware of the assailants otherwise there was no reason with him to not to disclose the names thereof to his father. In his crossexamination PW2 has categorically admitted that even to his mother he did not disclose the name of assailants. Furthermore, had the PW2 been at the spot and had seen his brother lying there, he would have naturally called for help or would have called the ambulance or police but no call was made by him.

95. In his crossexamination dated 18.12.2017, this witness stated "I do not know whether my brother was alive or dead when police was recording my statement as he was in the operation theater at that time". It is worth to mention here that FIR was purportedly registered at 22:45 hours on the basis of statement of PW2. Record reflects that rukka was purportedly sent by IO at about 9.40 pm. In the rukka deceased Deepak is already mentioned dead and for that reason only FIR was registered u/s 302 IPC. It is not possible that PW2 was present in the hospital but he was not aware of the death State VS Rajender Bharti @ Shalu and Ors. Page no. 80 of 144 FIR no. 499/15 PSSubhash Place of his brother. This is more so when PW3 Rohit @ Noddy in his crossexamination dated 18.01.2018 has categorically stated that at about 7.30 pm on 07.06.2015, he came to know about the demise of Deepak. Time narrated by PW3 corresponds with the time mentioned in the death summary Ex.PW26/B as 7.31 pm. Hence, the statement of PW2 that his brother was in operation theater and that he was not aware of the death of his brother by the time his statement was being recorded is absolutely contrary to record.

VI. Material contradictions in documents and testimonies:

96. The time of admission of injured as per MLC Ex.PW26/A is 05.45 pm but in his crossexamination at page no. 2 dated 16.01.2018, PW2 stated "I took my injured brother to Max hospital and the distance between the place of occurrence and Max hospital may be of about 1 km. I would have reached at the hospital at about 6.30 pm and remained present there in the hospital upto about 910 pm". It is rightly submitted by learned defence State VS Rajender Bharti @ Shalu and Ors. Page no. 81 of 144 FIR no. 499/15 PSSubhash Place counsels that if PW2 had reached the hospital at about 6.30 pm, he could not have been present at the time of admission of injured at 5.45 pm. It is important to mention here that the place of incidence as well as the hospital where injured was taken are both situated at NSP. PW29 i.e. PCR official in his statement stated "Within two minutes we had admitted the injured in hospital at NSP complex". Hence, after receiving the information at about 5.40 pm, PCR van reached at the spot and by 5.45 pm, the injured was admitted to hospital. If PW2 reached Max hospital at 6.30 pm, there was no occasion with him to get his brother admitted or to hear his alleged dying declaration. In such circumstances, it appears to be rightly submitted by learned defence counsels that possibly as first priority, injured was given the treatment in the hospital and lateron MLC was prepared, for this reason it is mentioned in the MLC that clothes of deceased were sealed and handed over to IO. This prima facie reflects that MLC might have been prepared at a later stage or at the time of handing over the clothes to IO.

State VS Rajender Bharti @ Shalu and Ors. Page no. 82 of 144 FIR no. 499/15 PSSubhash Place

97. Further the testimony of PW2 is in contradiction with the testimony of other public witness. In his examination PW2 stated that he saw all accused persons running from the spot but none of the accused was witnessed by PW9 Ashish, though as per prosecution case he had seen the injured prior in time than PW2. PW2 also stated that PW4 met him at the spot but PW 4 stated that when the fight of deceased Deepak started with 23 boys, he ran away from the spot and went to his home. Even the CCTV footage Ex.PW3/A brought on record by the prosecution reflects the fact that PW4 ran away from the spot. There is little likelihood that PW4 Saurabh would immediately come back to the spot. According to PW4 he came to know that Deepak was admitted in the hospital from his neighbour Himanshu. PW2 stated that PW4 had informed him that accused Appu and other accused persons had quarreled with Deepak and stabbed him. Percontra PW4 admitted his initial presence at the time of scuffle but did not say that he had met PW2 at the spot and had informed him about the incidence. As already discussed rather the CCTV State VS Rajender Bharti @ Shalu and Ors. Page no. 83 of 144 FIR no. 499/15 PSSubhash Place footage, normal human conduct and testimony of PW4 suggest that when scuffle started, he ran away from the spot. Thus, conduct of PW4 Saurabh appears to be normal and natural human behaviour. Whereas, it appears that PW2 is an interested witness in the particular outcome of the case and has made up his statement to insert another eye witness i.e. PW4 to incidence.

98. In his crossexamination by learned Addl. PP, PW4 admitted "It is correct to suggest that Mr. Deepak had died after the incidence that I had come to know about the same lateron". This statement in crossexamination by learned Addl. PP only suggest that PW4 came to know about the death of Deepak later on. Hence, PW4 possibly did not accompany injured to hospital. Thus, the testimony of PW2 to this effect is not probable. In the facts and circumstances, entire testimony of PW2 is to be looked with suspicion and cannot be trusted without cogent corroboration.

VII. Delivery of mobile phone of injured to IO at State VS Rajender Bharti @ Shalu and Ors. Page no. 84 of 144 FIR no. 499/15 PSSubhash Place hospital :

99. As per testimony of IO PW34, mobile phone as well as other belongings of deceased were handed over to him at hospital. It appears to be rightly submitted by learned defence counsels that had PW2 attempted to lift the injured in his bike as suggested by PW29 or would have gone along with injured to hospital, there was possibility that he could have taken the mobile phone of deceased with him or the same might have been delivered to him by doctors at hospital.

100. Not much credence can be given to the blood of deceased purportedly found on the clothes of PW2 because the blood sample of deceased was in possession of the IO. This fact is categorically admitted by IO in his crossexamination dated 25.02.2019 at page no. 3.

101. In the facts and circumstances court is of the opinion that the first point for determination is liable to be decided against the prosecution and it is held that prosecution has failed to prove beyond reasonable doubt the case of existence of oral dying declaration made to PW2 by deceased.

State VS Rajender Bharti @ Shalu and Ors. Page no. 85 of 144 FIR no. 499/15 PSSubhash Place

2. WHETHER THE TESTIMONY OF PW2 OR ANY MATERIAL PORTION THEREOF IS NOT RELIABLE:

102. While deciding earlier point for determination court has already held that the case put forward by the prosecution regarding oral dying declaration given by deceased to PW2 is under serious shadow of doubt. The court has also discussed various aspects in the testimony of PW2 which render his presence at the spot improbable and material contradictions in his testimony as compared with the testimony of other witnesses.

103. Apart from the reasons already discussed above if we peruse the site plan Ex.PW5/A bearing the signature of PW2 it is revealed that his testimony is not trustworthy. In his testimony PW2 stated "I reached near Best Sky Tower, NSP within 10 minutes. I saw my brother Deepak lying on the road in injured condition. I saw three persons were coming running from the opposite direction when I was approaching towards Best Sky Tower. I know two of them as they are known bad State VS Rajender Bharti @ Shalu and Ors. Page no. 86 of 144 FIR no. 499/15 PSSubhash Place elements of that area". Now this testimony is compared with the site plan. Point (C ) is the place from where PW2 had seen the accused persons when they were escaping from the spot after occurrence. Arrows at point (D) show the direction to which the accused persons escaped after the occurrence. Point (B) shows the place where the deceased Deepak was lying in injured condition. Complainant was allegedly on his motorcycle while he reached the spot after receiving the call from his brother. As per site plan deceased Deepak was lying in injured condition on the straight Eastern side of the complainant. Complainant could have arrived at point (C) either from the Western side or from the Eastern side because the North side and South side of point (C) are surrounded by the other buildings/institutions and there is no road to drive bike from Northern and Western side. Now complainant could not have come to point (C) from Eastern side because for reaching point (C) from Eastern side complainant would have to necessarily cross point (B) i.e. body of Deepak. The distance between point (B) and (C) is shown about 15 meters. There is no chance State VS Rajender Bharti @ Shalu and Ors. Page no. 87 of 144 FIR no. 499/15 PSSubhash Place that complainant would cross the body of his brother and then stop his motorcycle after about 15 meters. Hence, only option left is that complainant would approach to Best Sky Tower on the road from the Western side of point (B). Hence, the complainant would be moving from Western to Eastern side towards the body of his brother Deepak. In such circumstances the opposite direction of the complainant would be towards East to West. But in the site plan accused are shown running from South to North direction. Hence, the site plan do not correspond to the oral testimony of the complainant which further renders his testimony unreliable.

104. Hon'ble High Court of Delhi in the case State Vs Sunil Kumar @ Sagar @ Rahul, Crl. M.A. No.76/2013, decided by Hon'ble Mr. Justice G.S. Sistani, on 27.01.2015, held that site plan is vital part of investigation and it should give a clear description of the spot to which it belongs. Hon'ble High court also quoted the observations of Hon'ble High Court of Madhya Pradesh in the case Vijay Singh Vs State of MP 2005 Cr.LJ 299, wherein it was held that "we can safely say State VS Rajender Bharti @ Shalu and Ors. Page no. 88 of 144 FIR no. 499/15 PSSubhash Place that preparation of site plan is not a mere formality, but, it is an essential feature in order to reach the firm conclusion by the court in order to ascertain whether the offence has been committed by accused or not".

105. Apart from this in his crossexamination dated 16.01.2018 PW2 at page no. 3 categorically admitted "Police has never taken me at the place of occurrence after the death of my brother". The rough site plan Ex.PW2/B bears the signature of complainant as well as signature of PW4. If the complainant was not taken to the spot of occurrence after the death of his brother, his signature in the site plan Ex.PW2/B are doubtful. Hence, it appears that complainant was signing the document at the instance of IO which further renders his testimony unreliable.

106. Moreover, it appears that complainant as well as police witnesses have lied qua the date, time and manner of arrest of atleast one of accused namely Rajender Bharti.

107. Accused Rajender Bharti has put forward a case that he was apprehended on 07.06.2015 at about 9.00 pm State VS Rajender Bharti @ Shalu and Ors. Page no. 89 of 144 FIR no. 499/15 PSSubhash Place from his house by constable Sandeep, SI Kalicharan and constable Amit. He further forwarded a case that after his apprehension he was kept in a room by SI Kalicharan, as per the directions of SHO police station Netaji Subhash Place since 9.00 pm on 07.06.2015 and later on he was shown arrested on 08.06.2015 at about 9.30 pm.

108. In response to the case put forward by accused Rajender Bharti that he was apprehended on 07.06.2015, it is submitted on behalf of prosecution that accused Rajender Bharti was called in the police station in order to make inquiries regarding coaccused Appu and thereafter he was let off and was again arrested on 08.06.2015.

109. During his statement u/s 313 Cr.PC and in the testimony of DW2 Ms. Narmada, accused Rajender Bharti had put forward an inquiry report dated 28.07.2015 by Vigilance Department, NorthWest District. This departmental inquiry is also admitted by IO PW34 in his crossexamination. The said inquiry was held in respect of the complaint of the mother of accused State VS Rajender Bharti @ Shalu and Ors. Page no. 90 of 144 FIR no. 499/15 PSSubhash Place Rajender Parsad @ Shalu that accused was picked up by police staff i.e. SI Kali Charan, constable Amit and constable Gaurav on 07.06.2015 at about 9.00 pm from his shop cum residence at G105, Shakurpur, J.J. Colony.

110. One of the conclusion in the inquiry findings was "Incident of murder took place in the area of PS Subhash Place at about 05:30 pm on 07 Jun 2015. A case vide FIR no. 499/15 u/s 302 IPC PS Subhash Place was registered on the statement of Mr. Vikash, who was eye witness as well as brother of deceased Deepak. In his sttement, he alleged that Appu, Shalu and another associates killed his brother Deepak.

As per the direction of SHO/PS Subhash Place, the Beat Staff rounded up the listed criminals of the area. Rajender was picked up by police staff on the same day i.e. 07 Jun 2015 at about 0900 pm for conducting inquiry. His mobile phone was also taken by police staff from his house to seek help to catch main accused Appu because Rajender and Appu were associates in a murder case in FIR No. 239/10 u/s 302, 307 & 34 IPC PS Subhash Place and both are on bail from Delhi State VS Rajender Bharti @ Shalu and Ors. Page no. 91 of 144 FIR no. 499/15 PSSubhash Place High Court".

111. It is rightly submitted by learned defence counsels that had accused Rajender Bharti was picked up by police on 07.06.2015, at about 9.00 pm, there was no occasion or power with the police to let him free on their own. As per the entire prosecution story by 9.40 pm IO had recorded the rukka and sent the same to police station for registration of FIR. By 10.45 pm even FIR was registered. As per death summary Ex.PW26/B, the death of deceased Deepak took place at 7.31 pm. Thus before picking up accused Rajender Bharti, police was already aware of the death of Deepak. As per prosecution story PW2 has also narrated the incidence to IO Inspector Subodh. In his crossexamination IO has categorically admitted that he was in contact with SHO police station NSP. In his testimony PW29 PCR van official stated that SHO had also reached in the hospital in his presence. In the facts and circumstances, none of the police officials including SHO police station NSP was having any competency or power to release accused Rajender Bharti, once his name had surfaced in murder of accused Deepak.

State VS Rajender Bharti @ Shalu and Ors. Page no. 92 of 144 FIR no. 499/15 PSSubhash Place In addition thereto there was no additional evidence qua accused Rajender Bharti which could have led to his arrest on 08.06.2015, after his alleged initial release on 07.06.2015. The testimony of DW2 and the stand taken by accused Rajender Bharti in his statement u/s 313 Cr.PC therefore appears to be true that accused was picked up by police staff on 07.06.2015. His mobile phone was taken by police staff from his house. This fact is corroborated by inquiry report. Moreover DW2 has proved the receipt purportedly issued by constable Amit while taking the mobile phone no. 8285666877 belonging to accused Rajender Bharti.

112. Release of accused Rajender Bharti after initial picking up on 07.06.2015, is further highly improbable in view of the fact that in the night of 07.06.2015, a large mob had gathered outside police station and had even pelted stones there in order to build pressure to take appropriate action as regards murder of Deepak. PW2 in his crossexamination admitted "It is correct that stones were pelted by the public on the police station but I do not know whether the said crowd consisted of 2000/3000 State VS Rajender Bharti @ Shalu and Ors. Page no. 93 of 144 FIR no. 499/15 PSSubhash Place persons".

113. PW17 ASI Mukesh also admitted "It was told in the morning of 08.06.2015 that the mob had attacked PS". IO PW34 also admitted "It is correct that I have learned that mob rounded up the PS and pelted stones because of the murder of the accused persons (accused persons written by mistake instead of deceased)". When the police station is surrounded by mob of more than 1000 persons and mob is pelting stones on the police station to pressurize the police to take appropriate action in the murder of Deepak, by no stretch of imagination, court can presume that SHO or any police official would release the murder accused out of the custody despite having an eye witness account of the event. Hence, in all probabilities accused Rajender Bharti was kept in police custody w.e.f 07.06.2015, till his arrest was shown on 08.06.2015 at 9.30 pm. Even his mobile phone was kept by the police. The circumstances under which the mobile phone of accused Rajender Bharti was released are testified by DW2 Ms. Narmada. This fact is further corroborated by DD No. 26A at 2.45 pm on 08.06.2015 in which DW2 State VS Rajender Bharti @ Shalu and Ors. Page no. 94 of 144 FIR no. 499/15 PSSubhash Place complained against the police official picking his brother on 07.06.2015.

114. In such circumstances and in view of the testimony of PW2 that after the incidence he was regularly visiting the police station and met IO Inspector Subodh, court is of the opinion that IO/SHO must have informed PW2 about the apprehension of accused Rajender Bharti. More so, when PW2 specifically stated that he visited PS on 08.06.2015 at about 8.00 pm after cremation of his brother. It is important to mention here at the cost of repetition that arrest of accused Rajender Bharti is shown on 08.06.2015 at 9.30 pm. Hence, prima facie it appears that testimony of PW2 qua arrest/apprehension of accused Rajender Bharti is also not reliable.

115. Apart from the aforesaid discussion it is observed that PW2 is the real brother of deceased Deepak and is an interested witness. His testimony is required to be looked with caution.

116. This point is accordingly decided.

3. WHETHER THE FIR IS ANTETIMED, IF State VS Rajender Bharti @ Shalu and Ors. Page no. 95 of 144 FIR no. 499/15 PSSubhash Place SO ITS EFFECT:

117. As per prosecution case rukka was prepared by IO at 9.40 pm on 07.06.2015. The same was thereafter sent to police station NSP and FIR was registered at 10.45 pm. While deciding earlier points for determination, court has already discussed that presence of PW2 at the spot as well as in the hospital prior to death of his brother is least probable. Hence, it is more likely that the statement of PW2 was not recorded in the manner and at the time as alleged. The opinion of the court is strengthened with the testimony of PW33 HC Manoj Kumar seen in the light of endorsement of recording time of receipt of FIR by learned CMM, who was area Magistrate also.

118. PW33 HC Manoj Kumar, testified that on 07.06.2015, duty officer had handed over three envelopes containing copies of FIR to be delivered to learned CMM, DCP and Joint CP. He accordingly delivered the copies of FIR to the above mentioned officers and returned to police station. In his crossexamination he stated that he had departed from police station at about 10.45 pm and returned in the police station at about 6.00 am - 7.00 am State VS Rajender Bharti @ Shalu and Ors. Page no. 96 of 144 FIR no. 499/15 PSSubhash Place on 08.06.2015. First of all he went to the house of learned CMM at Pankha Road and it took him about two hours in tracing the house of learned CMM. He left the house of learned CMM at about 2.00 am after delivering the copy of FIR. As per Punjab Police Rules Chapter XXIV Rule no. 24.5, in a murder case FIR is required to be sent to Magistrate concerned immediately to the court during courts hours and at his residence after the court hours. In case MM concerned is out of station, FIR is required to be submitted to duty MM in the same manner as aforesaid. The difficulties of communication of FIR and reasons for delay are required to be noted on the cover, in which FIR is required to be kept. As per Rule 24.5 as soon as FIR is received by Magistrate, he is required to affix his initials thereon and note thereon the date and hour at which the report is received by him. In case of delayed FIR, if the MM disagrees with the reasons given by the police official for such delay he shall also give his own reason for the same, if any.

119. In this case the copy of FIR sent to learned CMM and covering envelope are available on court file. First of State VS Rajender Bharti @ Shalu and Ors. Page no. 97 of 144 FIR no. 499/15 PSSubhash Place all no reason for delay is noted on the cover envelope. Hence, the court is not buying the reason put forward by PW33 that it took him two hours in tracing the house of learned CMM. It is a matter of common knowledge that addresses of high ranked officials are also available in the official diaries. Moreover in the duty roaster also the telephone numbers of Metropolitan Magistrates are available. It is not presumable that the local police station was unable to obtain the address or telephone number of worthy area CMM. This testimony of PW33 is also belied through the noting made by learned CMM. Learned CMM has appended her signatures on the copy of FIR with a note that the same was received at her residence at about 6.00 am. Hence, the statement of PW 33 that he had delivered the copy of FIR to the house of learned CMM before 2.00 am is not reliable. Hence, as per record the copy of FIR was received at the house of learned CMM at about 6.00 am.

120. In view of facts and circumstances of the case and considering the mandate of Rule 24.5, this court is of the opinion that FIR might have been registered sometimes State VS Rajender Bharti @ Shalu and Ors. Page no. 98 of 144 FIR no. 499/15 PSSubhash Place prior to 6.00 am or at least was not registered at the time reflected in that document. Furthermore, the FIR was not sent to the house of learned CMM as stated by PW33. Entries in this regard appear to have been falsified or manipulated in the police records.

121. Hence, this point is accordingly decided.

4. WHETHER ACCUSED RAJENDER BHARTI HAS PROVED HIS ALIBI, IF SO IT EFFECT:

122. It is argued by learned counsel for the complainant that onus to prove the defence of alibi was upon accused Rajender Bharti. Learned Addl. PP has also submitted that accused Rajender Bharti has examined DW2 Ms. Narmada in support of his defence. DW2 stated that her brother was present in their house at about 56 pm in Kua Pujan ceremony (function organized to celebrate birth of new born baby). Learned Addl. PP submitted that it cannot be presumed that in the age of smart mobile phones, no photographs were taken in the said function. No photographs are produced in the court to show the State VS Rajender Bharti @ Shalu and Ors. Page no. 99 of 144 FIR no. 499/15 PSSubhash Place presence of accused at his house. Furthermore, even the birth certificate of the new born child has not been produced to suggest that there was any function as alleged by defence.

123. Learned Addl. PP has vehemently argued that PW3 Rohit Kumar as well as PW9 Baby had categorically narrated the incident in their examination in chief and stated that accused Rajender Bharti along with coaccused persons was involved in scuffle with deceased Deepak while deceased was stabbed leading to his death. Learned Addl. PP assisted by counsel for the complainant has drawn the attention of court at page no. 3 of the crossexamination of PW9 Baby where the video clip in the pen drive Ex.PW3/A was shown to the witness and she categorically identified accused Rajender Bharti therein. Screen shot of the said video clip though not clear was taken out and was Mark A. In the said video clip a person was pointed out as accused Rajender Bharti by PW9. Counsel for the complainant has stated that though PW3 in his crossexamination has turned hostile to the prosecution case and stated that he did not State VS Rajender Bharti @ Shalu and Ors. Page no. 100 of 144 FIR no. 499/15 PSSubhash Place see either of accused at the spot, but in view of the electronic evidence and corroborative testimony of PW9, his statement in the crossexamination is liable to be ignored as he was possibly won over by the accused persons. In support of his contention, learned counsel for the complainant has relied upon the judgment of Gudu Ram (supra).

124. Firstly, the court shall deal with the identification of accused Rajender by PW9 in the video clipping in pen drive Ex.PW3/A. In her entire statement u/s 161 Cr.PC recorded on 30.08.2015, PW9 has not taken the name of accused Rajender Bharti. She was confronted with her statement u/s 161 Cr.PC to the effect that name of accused Rajender Bharti was not taken by her before the police on 30.08.2015. From her testimony it appears that she was earlier shown the video clipping. In her cross examination dated 18.08.2018 at page no. 3 (pre lunch) to the question whether she stated to the police in her statement u/s 161 Cr.PC that accused Shalu (Rajender Bharti) was seen in the CCTV footage, she replied in affirmative. Thereby implying that she had stated to the State VS Rajender Bharti @ Shalu and Ors. Page no. 101 of 144 FIR no. 499/15 PSSubhash Place police in her statement u/s 161 Cr.PC that accused Shalu was seen in the CCTV footage. She was confronted on this aspect also with her statement u/s 161 Cr.PC, where it was not so recorded. She did not reply as to when the video clipping was shown to her. In the post lunch session on the same day at page no. 4 a question regarding the CCTV footage was put to her which is as follows: Question: Prior to today and where did you see video of place of alleged occurrence. She gave an evasive reply for the same and stated that "I do not remember when and where I had seen CCTV footage which is shown to me today in the court and by whom it as shown to me earlier".

125. In the statements of witnesses recorded u/s 161 Cr.PC, it is not mentioned that CCTV footage was shown to either of witnesses or that either of the witnesses identified any accused in the CCTV footage. In her statement in chief as well as in the supplementary statement recorded u/s 161 Cr.PC, PW9 stated that she was shown accused Rajender Bharti and accused Rajpal @ Pradeep outside court room no. 108, Rohini Court. In State VS Rajender Bharti @ Shalu and Ors. Page no. 102 of 144 FIR no. 499/15 PSSubhash Place his examination in chief IO has not stated that either of accused was identified by any witness in the CCTV footage. In the entire chargesheet it is not mentioned that either of accused was pointed out by any witness to be present in the CCTV footage. IO has rather stated that witnesses i.e. PW3, PW4 and PW9 identified themselves in the CCTV footage. It is already recorded by my learned predecessor that CCTV footage, where PW9 identified accused Rajender Bharti is not clear. In the facts and circumstances, the sole testimony of PW9 qua identification of accused Rajender Bharti in the CCTV footage cannot be relied upon without corroboration.

126. Now PW3 initially deposed on 03.10.16 on the lines of prosecution case but on 03.10.2016 when his further examination in chief was deferred for want of case property, he was again examined on 08.02.2017. On 08.02.2017, he turned hostile to the prosecution case and did not identify the knife allegedly used by accused Appu at the time of incidence. He further stated that he had not seen any of accused persons at the spot on the date of incidence. He was reexamined by learned Addl. PP and State VS Rajender Bharti @ Shalu and Ors. Page no. 103 of 144 FIR no. 499/15 PSSubhash Place CCTV footage in pen drive Ex.PW3/A was shown to him. After seeing the CCTV footage he admitted that he had witnessed the scuffle but denied that scuffle he witnessed was between deceased Deepak and the accused persons present in the court. In his crossexamination by learned Sh. R.S. Yadav, on 18.01.2018, he categorically admitted that none of accused persons in the court was seen in the CCTV footage shown to him in Ex.PW3/A. Even learned Addl. PP for the State or the IO had not pointed out to the witness that either of accused was seen in CCTV footage. In his further crossexamination on 18.01.2018, by learned Sh. K. Kaushik and Sh. S.S. Saini, witness again admitted that he did not see any of accused in the said park.

127. Another eyewitness to the incidence is PW4 Master Saurabh. He had narrated the chain of events as is reflected in the CCTV footage. He identified deceased Deepak and himself but stated that he could not identify the boy who had a fight with Deepak near Best Sky Tower. In his crossexamination by learned Addl. PP, this witness stated that he did not know any man by the State VS Rajender Bharti @ Shalu and Ors. Page no. 104 of 144 FIR no. 499/15 PSSubhash Place name of Appu. He further stated that he had not stated to the police that accused Appu present in the court had taken out knife and stabbed in the chest of Deepak with the intention to kill him and at that time two other accused persons were instigating him. He further denied remaining incriminating suggestions against the accused persons. He further denied that he had told the police that after he ran away from the spot, he returned there and met PW2 at the spot and had told PW2 what had happened with Deepak. This statement of PW4 appears to be natural. In the CCTV footage Ex.PW3/A, this witness is seen fleeing away from the spot. There is very little possibility that he would return soon after the incidence. He has categorically stated that after running away from the spot he went to his house and later on he came to know about the death of Deepak. There is not a single CCTV footage of the spot where deceased was found lying in injured condition. Though it is admitted by the IO at page no. 2 in his crossexamination dated 14.03.2019 "It is correct that CCTV footage was installed at wine shop looking towards the place of occurrence State VS Rajender Bharti @ Shalu and Ors. Page no. 105 of 144 FIR no. 499/15 PSSubhash Place which was encircled by the yellow tape. I do not remember whether I took the copy of DVR dated 07.06.2015 from 5.00 pm to 7.00 pm of above mentioned CCTV. Vol. I checked the CCTV footage/recording in which lot of public is visible at the place where injured fell down. It is correct that no accused visible in that coverage". It is worth to mention here that place which was encircled by yellow tape is the spot where deceased allegedly fell down. This is further the spot where PW2 allegedly saw accused persons. If PW4 or PW2 would have been present at that place as alleged in the chargesheet, IO must have placed the CCTV coverage of that area on record. IO rather himself admitted that none of accused was visible in that coverage. Court cannot believe that even prior to scuffle so much crowd had gathered as to make it impossible to view either the deceased or the witness or accused persons. In such circumstances, there is every possibility that none of accused was visible in the said CCTV footage which was covering the place of occurrence and the same has not been placed on record by the IO for this reason.

State VS Rajender Bharti @ Shalu and Ors. Page no. 106 of 144 FIR no. 499/15 PSSubhash Place

128. In addition thereto DW2 has exhibited certified copy of the report dated 28.04.2016 as Ex.DW2/6, filed by the IO before learned CMM wherein he mentioned that he collected the CDR of mobile no. 8285666877 which was used by accused Rajender Bharti. He further mentioned "During the course of investigation it came to notice that there are 34 CCTV cameras installed by ECIL in Netaji Subhash Place complex and its control room but none of the camera (installed by ECIL) found to be covering the place where the incident took place or where the injured Deepak (deceased) of the case was found lying and from where he was taken to MAX hospital by PCR van. Further CCTV footage of 19 cameras covering nearby area and entry/exit points were specifically checked for 3 hrs each (19x3=57 hrs). But nothing found which could help in the investigation of the case". This is in contradiction of statement of IO where he admitted that CCTV installed at wine shop was covering the place where deceased was lying.

129. In the case of Tomaso Bruno and Another Vs State of Uttar Pradesh, (2015) 7 SCC 178, Hon'ble State VS Rajender Bharti @ Shalu and Ors. Page no. 107 of 144 FIR no. 499/15 PSSubhash Place Apex Court held that CCTV footage and call records are best electronic reliable evidence which could have clinched the issue. It was further held "The High Court held that even though the appellants alleged that the footage of CCTV is being concealed by the prosecution for the reasons best known to the prosecution, the accused did not invoke Section 233 Cr.PC and they did not make any application for production of CCTV camera footage. The High Court further observed that the accused were not able to discredit the testimony of PW1, PW12 and PW13 qua there being no relevant material in the CCTV camera footage. Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, the prosecution in possession of the best evidence, CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 Illustration (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced."

State VS Rajender Bharti @ Shalu and Ors. Page no. 108 of 144 FIR no. 499/15 PSSubhash Place

130. It was duty of the IO to place on record the CCTV footage more specifically one which was covering the place of occurrence whether it supported the case of prosecution or the defence of accused persons. It is reminded herein that the duty of IO is not to support the version of complainant but to rather do free and fair investigation whether it supports the complainant or not.

131. In the case of State of NCT of Delhi Vs Rakesh and Ors., 2012 (2) JCC 1334, Hon'ble High Court of Delhi in para 6 observed as follows : Failure of the IO to investigate the matter thoroughly makes prosecution version suspect. This Court reiterates that the role of the police is not merely to collect evidence which implicates to a particular suspect but explore and analyse all the materials which come to light during investigation.

Unlike a party to a private litigation, the State is not partisan;

the police, its agency, and the prosecutor, its representatives have to be fair, and advance the cause of justice, which ultimately has to prevail, irrespective of whether the State VS Rajender Bharti @ Shalu and Ors. Page no. 109 of 144 FIR no. 499/15 PSSubhash Place material advances its hypothesis or exonerates an accused.

132. IO has not even relied upon the CDR of mobile phone of accused Rajender Bharti, though the same was collected by him. When this accused is not identified or pointed out by any of the witness except PW9 in the CCTV footage, nor the relevant CCTV footage covering the spot where the injured body of deceased was lying is put on record, his CDR brought on record by DW2 as Ex.DW2/5 shows his location at the relevant time at his house, this court is of the opinion that the uncorroborated testimony of PW9 to point out accused Rajender Bharti in an unclear video is not reliable.

133. Hence, this court is of the opinion that though the absence of accused Rajender Bharti from the spot is not proved beyond reasonable doubt but there is preponderance of probabilities in his favour that he was not present at the spot and was wrongly identified by PW9 at the instance of IO.

134. There is more possibility of his wrong identification in view of the conduct of PW9 and delayed recording of State VS Rajender Bharti @ Shalu and Ors. Page no. 110 of 144 FIR no. 499/15 PSSubhash Place her statement by the IO which shall be discussed in the later points for determination.

135. This point is accordingly decided.

5. WHAT IS THE EFFECT OF THE TESTIMONY OF PW3, PW4 AND PW9 IN THE LIGHT OF THE ELECTRONIC EVIDENCE/CCTV FOOTAGE:

136. Court has already discussed while deciding point for determination no. 4 that none of the witness i.e. PW3 and PW4 had identified either of accused in CCTV footage. IO or learned Addl. PP had not pointed out any of the persons present in the CCTV as any of accused. PW4 though admitted that he witnessed the incidence but denied that either of accused was present at the spot or was involved in scuffle with deceased Deepak. All safeguards to record testimony of minor witness were taken by my learned predecessor while recording the statement of PW4 who was aged around 17 years and 09 months (date of birth 21.04.1999) on 08.02.2017 when his testimony was recorded. As already discussed witness State VS Rajender Bharti @ Shalu and Ors. Page no. 111 of 144 FIR no. 499/15 PSSubhash Place has categorically denied the suggestion of the prosecution that he had stated to the police that accused Shrikant @ Appu took out knife and stabbed in the chest of Deepak; that thereafter accused Rajpal @ Pradeep took knife from accused Appu and stabbed the same on the abdomen of Deepak, and that accused Rajender Bharti was instigating the remaining two accused persons. He has rather categorically stated that accused persons present in the court were not the same boys who had fought and scuffled with deceased Deepak. In the opinion of this court testimony of PW4 cannot be brushed aside. Court had taken all care to record his testimony and had even inquired from the mother of witness whether the witness was under any threat. The mother had denied any threat to the witness. She was also allowed to sit in the court.

137. It is also discussed that PW3 has also not identified either of accused in the CCTV footage kept in pen drive Ex.PW3/A. Prosecution has also not pointed out to any person in the CCTV footage as either of accused. PW3 rather in his crossexamination stated that he did not see any of the accused in the said park. He further stated State VS Rajender Bharti @ Shalu and Ors. Page no. 112 of 144 FIR no. 499/15 PSSubhash Place that he had come to know about the demise of Deepak on 07.06.2015 at 7.30 pm.

138. Both the witnesses PW3 and PW4 stated that after scuffle ensued between Deepak and other side, they ran away from the spot. Even in the CCTV they are seen fleeing away from the spot. There is no other CCTV footage placed on record by the IO to show that they came back at the spot. In the facts and circumstances it appears that PW4 is shown as prime eye witness of the incidence in the chargesheet. In his statement u/s 161 Cr.PC he has narrated specific role of each accused person in stabbing Deepak. It is rightly submitted by learned defence counsels that it appears that IO had written statement of these witnesses on his own. Witnesses have also denied material part of their statement u/s 161 Cr.PC. According to IO, PW4 was present in the hospital. If PW4 would have been present at the spot and had met the IO as an eye witness in hospital, there would have been no reason with the IO to record his statement on 08.06.2015, as suggested from document Mark PW4/A (statement u/s 161 Cr.PC).

State VS Rajender Bharti @ Shalu and Ors. Page no. 113 of 144 FIR no. 499/15 PSSubhash Place Rather FIR could have been registered at the instance of this witness.

139. Court has already discussed some aspect of the testimony of PW9. Now court shall examine her further conduct.

140. In her testimony she stated that she left the spot and reached at Kashmere Gate. Thereafter, she received a telephonic call informing her that accused Appu and his companion had given knife blows on the person of Deepak. In her crossexamination on 18.08.2018 she stated "I had tried to contact with the police. PUR MUJE KUCHH PATA HI NAHI CHALA. I contacted with parents of Deepak after this occurrence but no one had told me and I returned to my home. I had come in Netaji Subhash Place to meet with the parents of Deepak but I could not contact with them. I had dialed number of Deepak even after this occurrence, on the Day of this occurrence but none had picked the phone". It appears that this witness was covering up something. It is not clear as to who had informed PW9 that Deepak was stabbed by Appu and his associates. In her further cross State VS Rajender Bharti @ Shalu and Ors. Page no. 114 of 144 FIR no. 499/15 PSSubhash Place examination she stated "I do not know who was the said informer who had telephonically informed me about the suffering of injury. He did not tell me whether he was going to inform the police about the same or not. The name of the said informer was not fed in my phone. Perhaps the caller was known to me".

141. If this witness had attempted to contact the police or the family members of Deepak, she could have easily done so because of the specified jurisdiction of the police station. She could have also dialed at police control room.

142. In the case of Chanan Singh Vs The State of Haryana, AIR 1971 SC 1554, evidence of a sole witness of the occurrence was disbelieved by the Hon'ble Supreme Court on the ground of his abnormal conduct after the occurrence. The Hon'ble Apex Court had recorded the conduct of the witness in running away from the place of occurrence even though he was not chased or threatened by anyone of the assailants and his non reporting the incident even to the relatives of the deceased persons. In the present case also PW9 was not threatened or chased. She did not report the incidence to the police or to the State VS Rajender Bharti @ Shalu and Ors. Page no. 115 of 144 FIR no. 499/15 PSSubhash Place relatives of deceased. She stated that she attempted to contact with the family of deceased as well as with the police but the court does not find any substance in this statement because according to her she had already received a call on 07.06.2015 about the deceased being stabbed. Had she any intention to contact the family of deceased, she could have called back on the said number to inquire about the whereabouts of family. She could have also contacted the police at control room or at Netaji Subhash Place and could have come in contact with the family of deceased or police easily.

143. In the case of Alil Mollah and another Vs State of West Bengal, 1996 CRI. LJ 3842, also the silence of the eyewitness about the murder of his employer was considered doubtful.

144. Hence, there are additional grounds to not to rely upon the sole testimony of this witness against either of accused persons without corroboration.

145. Hence, the cumulative effect of testimonies of PW3, PW4 and PW9 makes the involvement of accused persons doubtful.

State VS Rajender Bharti @ Shalu and Ors. Page no. 116 of 144 FIR no. 499/15 PSSubhash Place

6. WHAT IS THE EFFECT OF REFUSAL OF TIP BY ACCUSED PERSONS :

146. In his examination in chief PW34 at page no. 2 stated that he had took out the dossier of accused Appu and Rajender Bharti and their photographs were shown to PW2 Vikas, who identified them in the photographs through dossier. In his crossexamination he admitted "It is correct that except two photographs I do not show any other photographs to Vikas". In such circumstances it appears to be rightly submitted by learned defence counsels that refusal of TIP by the accused persons on the ground that their photographs as well as they were physically shown to the witnesses in the police station is justified.

147. In addition thereto PW2 in his examination in chief at page no. 3 stated that on 08.06.2015, he identified accused Rajender Bharti in the police station and thereafter he was arrested by police. He further stated that on the next day i.e. 09.06.2015, during morning hours he was called by police at F Block turn, ring road State VS Rajender Bharti @ Shalu and Ors. Page no. 117 of 144 FIR no. 499/15 PSSubhash Place and he identified accused Appu, who was already apprehended by police. He further stated that on 19.06.2015, he also identified accused Rajpal @ Pradeed, who was also arrested by the police.

148. PW30 learned Ms. Sushil Bala Dagar, MM, to whom the application for TIP of accused persons was marked categorically stated that only one witness i.e. Vikas was supposed to identify accused in TIP. When the photographs of Rajender Bharti and Appu were already shown to witness Vikas in the PS and PWVikas was further physically shown the accused persons at the time of their respective arrest, there was no purpose for TIP of accused persons by said witness.

149. Defence counsels have relied upon the judgment in the case of Rajinder Kumar Vs State, 1983 C.C. cases 36 (HC), wherein Hon'ble High Court of Delhi held that identification of an accused in the court when photographs had been shown to the witness and those photographs were not produced in court is doubtful. In the case is hand photographs of the accused were admittedly shown to PW2 in the police station.

State VS Rajender Bharti @ Shalu and Ors. Page no. 118 of 144 FIR no. 499/15 PSSubhash Place

150. In the case of Arif Vs State Govt of NCT of Delhi, 2015 (2) JCC 1022, Hon'ble High Court of Delhi held that no adverse inference can be drawn against appellant for their refusal to participate in the TIP proceedings because it was admitted that the witness had seen the appellant in the police station and had identified him before the IO. In the present case photographs of accused were shown to PW2 and PW2 had seen them physically also.

151. In the facts and circumstances, this court is of the opinion that no adverse inference can be drawn against either of accused for refusal to participate in the TIP.

7. WHETHER RECOVERY OF WEAPON OF OFFENCE AND CLOTHES OF ACCUSED RAJPAL AT HIS INSTANCE STANDS PROVED:

152. Learned Sh. K. Kaushik, who was appearing on behalf of accused Rajpal has submitted that police has not followed mandatory provisions of law while effecting recovery from accused. He has drawn the attention of the court to section 166 Cr.PC, which provides as follows: State VS Rajender Bharti @ Shalu and Ors. Page no. 119 of 144 FIR no. 499/15 PSSubhash Place

116. When Officer in charge of police station may require another to issue searchwarrant - (1) An officer in charge of a police station or a police officer not being below the rank of SubInspector making an investigation may require an officer in charge of another police station, whether in the same or a different district, to cause a search to be made in any place, in any case in which the former officer might cause such search to be made, within the limits of his own station.

(2) Such officer, on being so required, shall proceed according to the provisions of section 165, and shall forward the thing found, if any, to the officer at whose request the search was made.

(3) Whenever there is reason to believe that the delay occasioned by requiring an officer incharge of another police station to cause a search to be made under subsection (1) might result in evidence of the commission of an offence being concealed or destroyed, it shall be lawful for an officer incharge of a police station or a police officer making any investigation under this State VS Rajender Bharti @ Shalu and Ors. Page no. 120 of 144 FIR no. 499/15 PSSubhash Place Chapter to search, or cause to be searched, any place in the limits of another police station in accordance with the provisions of section 165, as if such place were within the limits of his own police station.

(4) Any officer conducting a search under sub section (3) shall forthwith send notice of the search to the officer in charge of the police station within the limits of which such place is situate, and shall also send with such notice a copy of the list (if any) prepared under section 100, and shall also send to the nearest Magistrate empowered to take cognizance of the offence, copies of the records referred to in subsections (1) and (3) of section

165. (5) The owner of occupier of the place searched shall, on application, be furnished free of cost with a copy of any record sent to the Magistrate under subsection (4).

153. Sh. Kaushik has further drawn the attention of the court to crossexamination of PW34 recorded on 14.03.2019. In the opening lines PW34 admitted " It is correct that the place of alleged recovery of knife and cloth State VS Rajender Bharti @ Shalu and Ors. Page no. 121 of 144 FIR no. 499/15 PSSubhash Place does not fall in the jurisdiction of PS Netaji Subhas Place. I do not know the jurisdiction of the police station in which this place falls. I cannot admit or deny whether this place was in jurisdiction of PS Vijay Vihar. It is also correct that I did not deposit clothes and knife with the SHO or Malkhana Mohrar of PS Vijay Vihar. It is also correct that I did not deposit the knife and clothes in the jurisdiction of police station in which allegedly shown recovered. It is also correct that I did not make the owner of REHRI as a witness of recovery of clothes and I also did not handover him the copy of seizure of clothes".

154. In view of the crossexamination of PW34, it is rightly submitted by learned Sh. Kaushik that IO did not follow the mandate of section 166 Cr.PC. There is no explanation by the IO for not following the said provision of law.

155. Apart from this public witnesses were cited in the seizure memos of these articles. PW10 Sunny was examined as witness of recovery of clothes of accused Rajpal, whereas, PW11 Shujat Hussain was examined as witness to recovery of knife at the instance of this State VS Rajender Bharti @ Shalu and Ors. Page no. 122 of 144 FIR no. 499/15 PSSubhash Place accused. Both these witnesses turned hostile to the prosecution case.

156. PW10 did not state that the clothes were recovered at the instance of accused Rajpal. He only stated that police had recovered clothes from rehri in front of house of Rajpal and obtained his signature on the documents and took away the said clothes. He further stated that as per his memory a check shirt was seized by the police. But the pullanda which was produced in the court was found containing Tshirt of grey colour and jeans pant of blue colour. He categorically stated that he had told to the police that pant and shirt was recovered and did not tell about Tshirt of grey colur and blue colour jean.

157. PW11 Shujat Hussain testified that on 20.06.2015 some police personnel called him near nallah (waste water drain) Sector24, J.J. Colony, Rohini. Police asked him his name and address. Then police officials asked him to come to police station. When he went to police station he was kept sitting there for about 2 - 2 ½ hours. Thereafter, police officials had shown him a knife which was being wrapped by police officials and the police State VS Rajender Bharti @ Shalu and Ors. Page no. 123 of 144 FIR no. 499/15 PSSubhash Place officials told him that the said knife was recovered from nallah. A police official then obtained his signature on document. This witness was also crossexamined by learned Addl. PP but he denied the suggestion that accused Rajpal had taken out buttondar knife from nallah in his presence. In further crossexamination by learned Addl. PP he voluntarily stated that knife was sealed in the police station and not at the spot. He denied that after removing the knife from nallah, the earlier cloth wrapped on it was dried up and knife was separately sealed in cloth pullanda. In his cross examination by learned defence counsel, this witness stated that he reached in the police station, police officials had shown knife Ex.P4 and thereafter his signatures were taken on the seizure memos. He further stated that knife was shown to him in the office of SHO and his signatures and signature of other witness namely Raja were obtained on the seizure memos at about 5.30 pm.

158. Apart from this it appears that the recovery of knife at the instance of accused Rajpal is not pursuant to his State VS Rajender Bharti @ Shalu and Ors. Page no. 124 of 144 FIR no. 499/15 PSSubhash Place disclosure statement. Disclosure statement of accused Rajpal was Ex.PW13/B. In his crossexamination IO categorically admitted that it was nowhere stated in the said statement that accused could have got recovered the knife.

159. In the case of Devidas and others Vs State of Maharashtra, 1982 Cr. LJ 2189, Hon'ble High Court of Mumbai held that mere discovery by the accused cannot be said to be of any legal consequence, if it is not preceded by the informative statement on the part of accused. It was further held that it is the informative statement which is evidence. The discovery by the accused in the absence of such informative statement is barren for all practical purposes. In the present case also the alleged recovery of clothes and knife is not preceded with any disclosure statement of accused that he could get these articles recovered.

160. Similarly the presence of blood on the clothes purportedly recovered at the instance of accused Rajpal is not much of much consequence because firstly those clothes were not got identified by the IO from any of the State VS Rajender Bharti @ Shalu and Ors. Page no. 125 of 144 FIR no. 499/15 PSSubhash Place witnesses that accused Rajpal was wearing those clothes on the day of incidence. There is no matching of these clothes with the clothes of any person seen in the CCTV footage contained in pen drive Ex.PW3/A. It is already discussed that blood of deceased was already available with the IO. In the facts and circumstances, planting of recovery of clothes cannot be all together ruled out.

161. Hence, recovery of weapon of offence and clothes at the instance of accused Rajpal is not proved beyond reasonable doubt by the prosecution witnesses. In addition thereto there is possibility of tampering with the case property. In his crossexamination at page no. 4 dated 25.02.2019, IO stated "It is incorrect to suggest that knife was also planted by me upon Rajpal. It is correct that knife which I identify during my examination in chief was fitted with a torch and I have not shown the same in sketch of knife nor I mentioned about the torch in seizure memo. It is correct that the knife which I seized vide seizure memo was sent to Doctor for opinion and no knife which was fitted with torch was sent to doctor". This part of the crossexamination read with relevant State VS Rajender Bharti @ Shalu and Ors. Page no. 126 of 144 FIR no. 499/15 PSSubhash Place documents reflects that knife purportedly seized by IO is different from the knife which was sent to doctor for subsequent opinion and/or which was produced in the court. Hence, prosecution is unable to prove the recovery of clothes and weapon connected with the incidence at the instance of accused Rajpal.

162. This point is accordingly decided.

8. WHAT IS THE IMPACT OF DELAY IN RECORDING STATEMENTS U/S 161 CR.PC OF PUBLIC WITNESSES:

163. Learned Addl. PP has argued that considering the nature of case and availability of PW2 at the first instance the delay in recording statement of remaining witnesses by the IO is of no consequence.

164. Learned defence counsels have relied upon judgment passed by Hon'ble High Court of Delhi in Krishan Lal Vs The State, 1971 Cr. LJ 1610, in which it was held by the Hon'ble High Court that an investigating officer must record the statements of witnesses at the earliest and that the recording of State VS Rajender Bharti @ Shalu and Ors. Page no. 127 of 144 FIR no. 499/15 PSSubhash Place statements after lapse of inexplicable delay is likely to affect seriously the accusation levelled against an accused.

165. Further in the case of Ganesh Bhavan Patel and another Vs State of Maharashtra, AIR 1979 SC 135, Hon'ble Supreme Court in para no. 15 held :

15. As noted by the trial court one unsual feature which projects its shadow on the evidence of PWs Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses to the occurrence is the undue delay on the part of investigation officer in recording their statements although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements u/s 161 Cr.PC were recorded on the following day. Welji (PW3) was examined at 8.00 am, Pramila at 9.15 or 9.30 am and Kuvarbai at 1.00 pm. Delay of few hours simplicitor, in recording the statements of eye witnesses may not by itself amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to State VS Rajender Bharti @ Shalu and Ors. Page no. 128 of 144 FIR no. 499/15 PSSubhash Place suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay exists in the instant case.

166. In the case of Basudeb Sahu and others Vs The State, 1985 Cr. LJ NOC 29 (Orissa), again the delay of three days after the occurrence, in examination of witnesses was held fatal to the prosecution case and it was held that the same would certainly cast a reasonable doubt about their veracity.

167. Delay in recording the statement may not be of much consequences in some cases. However, in the present case the court is of the opinion that there is force in the submissions of learned defence counsels that IO had recorded the statements of witnesses after deciding the shape of the investigation and after manufacturing the statement of PW2. Court has already discussed that there is high possibility that FIR is antetimed. There is further high possibility of the manufacturing of statement of PW2. It is rightly submitted by learned State VS Rajender Bharti @ Shalu and Ors. Page no. 129 of 144 FIR no. 499/15 PSSubhash Place defence counsel that if PW4 Saurabh was in the hospital along with PW2 there was no reason with the IO to not to record his statement in the hospital itself. As per prosecution case statement of PW4 was recorded on 08.06.2015. Specific role was assigned in that statement against each accused person for stabbing deceased Deepak. If eye witness was present in the hospital when the IO had reached there and said eye witness was giving specific role to each accused person, FIR could have been registered at the instance of said eye witness, but IO did not even record his statement in the hospital which creates serious doubt whether statement recorded by IO u/s 161 Cr.PC of PW4 is truthful or not. As already discussed this witness had already resiled from his statement recorded u/s 161 Cr.PC. Even the statement of PW3 Rohit, was recorded on 19.08.2015, though this witness was also the neighbor of deceased. He was also previously known to PW2. There is no explanation for his delayed recording of statement. Moreover statement of another witness i.e. PW9 was recorded after more than 2 months of the incidence i.e. on 30.08.2015. Again State VS Rajender Bharti @ Shalu and Ors. Page no. 130 of 144 FIR no. 499/15 PSSubhash Place no explanation has been given for recording her delayed statement.

168. IO has also admitted that he had phone call recording of mobile phone of deceased wherein he heard the name of one lady Baby @ Ritu (PW9). He did not place the said call recording on record. He stated that he might have heard the said call recording on 08/09.06.2015. He denied the suggestion that he purposely withheld the said call recording because that might go to the root of the case to prove that assailants were other then the accused facing trial in this court. If IO had heard the call recording of PW9 Baby, in the phone of deceased on 08/09.06.2015, he must have laid hands on the phone number of PW9. There is no explanation why he did not make any attempt to record the statement of PW9 prior to 30.08.2015 or to get the judicial TIP of accused persons conducted through this witness. In the light of facts and circumstances, already discussed this court is of the opinion that delay in recording statement of public witnesses is material giving an opportunity to the IO to give a particular State VS Rajender Bharti @ Shalu and Ors. Page no. 131 of 144 FIR no. 499/15 PSSubhash Place shape/direction to the case. This is more so in the peculiar facts and circumstances and in view of the admissions of the police officials that police station was surrounded by large mob which was pelting stones upon police station, it cannot be ruled out that accused persons were shown arrested in haste without collecting evidence against them and thereafter the entire case including statements u/s 161 Cr.PC were manufactured to justify their arrest. This is more so in the light of the fact that even prior to registration of FIR, accused Rajinder Bharti was already picked up at 9.00 pm on 07.06.2015.

9. WHETHER THE CHAIN OF EVENTS OR CIRCUMSTANTIAL EVIDENCE AGAINST ACCUSED PERSONS IS COMPLETE :

169. There is no complete chain of events and circumstantial evidence connecting the accused persons with the crime. The court has already discussed that accused persons have not been identified by PW3 and PW4 in the CCTV footage. There is no presence of accused persons shown through their CDR State VS Rajender Bharti @ Shalu and Ors. Page no. 132 of 144 FIR no. 499/15 PSSubhash Place record/location chart or through any other electronic evidence. The evidence as seen in CCTV reflects that the incidence was not planned, rather same appears to be spontaneous. In such circumstances, it cannot be presumed that either of accused would have left their electronic device i.e. mobile phone etc. in order to avoid detection by police. CDR of accused R. Shrikant @ Appu and Rajpal @ Pradeep has not been placed on record. CDR of accused Rajender Bharti prima facie reflects that he was not present at the spot.

170. In the facts and circumstances, this point is liable to determined against the prosecution.

10. WHETHER THE INVESTIGATION IS NOT FAIR AND PROPER, IF SO ITS EFFECT:

171. It appears to be rightly submitted by learned defence counsels that investigation in this case does not appear to be fair and proper. IO seems to be interested in particular outcome of the case and has selectively collected the evidence in order to implicate the accused persons, for the following reasons: State VS Rajender Bharti @ Shalu and Ors. Page no. 133 of 144 FIR no. 499/15 PSSubhash Place I. Non disclosure of arrest/apprehension of accused Rajender Bharti @ Shalu on 07.06.2015 :

172. It is already discussed while deciding point for determination no. 4, that accused Rajender Bharti was picked up by police on 07.06.2015 at about 9.00 pm. According to IO prior to that he had already reached Max hospital and had met PW2 and PW4. According to IO as stated by him in his crossexamination he was in contact with SHO Netaji Subhash Place after the incidence. Had it been so, IO must have disclosed the name of accused Rajender Bharti to the concerned SHO. As per testimony of PW29 even SHO had reached in the hospital. Moreover, as already discussed the FIR was purportedly registered by 10.45 pm. Hence, by that time the names of accused persons were known in the police station. In the facts and circumstances, IO and SHO must have got knowledge that accused Rajender Bharti was already apprehended in the police station but in his cross examination IO stated "I do not know whether Rajender Bharti was called in the PS for interrogation on State VS Rajender Bharti @ Shalu and Ors. Page no. 134 of 144 FIR no. 499/15 PSSubhash Place 07.06.2015 and was let off from the police station at late night". He further stated "I reached police station at 6.00 am on 08.06.2015". Firstly, court do not presume that an Inspector level officer, IO in this case was not aware that one of the accused in the present case was apprehended in police station more so when he was in communication with SHO. Secondly, the statement of IO that he reached in the police station at 6.00 am on 08.06.2015, is contradicted by the testimony of PW16 MHC(M) ASI Ram Narain. This witness categorically stated that on 07.06.2015, Inspector Subodh Kumar (IO) deposited 05 sealed parcels sealed with the seal of hospital in the malkhana and entry at Sl. No. 3275 vide ExPW16/A was made by him. In the facts and circumstances, either IO had visited the PS on 07.06.2015 and deposited the sealed parcels vide Sl. No. 3275 in register no. 19 or the entries in the said register are manipulated at the instance of IO/SHO. In both the cases the investigation cannot be said to be fair and proper and is materially prejudicing the accused persons.

State VS Rajender Bharti @ Shalu and Ors. Page no. 135 of 144 FIR no. 499/15 PSSubhash Place II. Doubtful seizure of the mobile phone and belongings of deceased:

173. As per crossexamination dated 25.02.2019 of IO at page no. 2 and as per seizure memo Ex.PW34/D1, mobile phone number 7503849750 was seized by the IO. The said mobile phone was handed over to IO by the doctors on 07.06.2015. IO stated "Neither I deposited the same in malkhana nor I prepared any memo on 07.06.2015". The seizure memo of this mobile phone was made on 11.06.2015. There is no explanation why phone was not immediately seized and what investigation IO was conducting with the said mobile phone. IO could have got the cloned copy of the data available in the said mobile under the supervision of the superior officer, if the data from the mobile was required by the IO.

174. Moreover, this mobile phone was not produced during trial. IO had collected the CDR of some mobile no. 7503949750. He categorically admitted in cross examination "It is correct that during investigation I did not collect the CDR of mobile phone 7503849750 which was recovered from the possession of injured at the time of State VS Rajender Bharti @ Shalu and Ors. Page no. 136 of 144 FIR no. 499/15 PSSubhash Place his admission in the hospital". He further admitted that phone no. 7503949750, was never seized by him through out the investigation. It is important to mention here that at the relevant time location of cell no. 7503949750 was at Tri Nagar and not at Netaji Subhash Place. Even IMEI number of the mobile in which mobile number no. 7503949750 was used, does not match with the IMEI number mentioned by the IO in the seizure memo Ex.PW34/D1. Even PW2 stated that Deepak contacted him through Deepak's mobile no. 7503849750. In the facts and circumstances, it appears that IO had placed on record the CDR of some number, which was not connected with the investigation of the present case and which was never seized by him throughout the investigation and which was not recovered from the injured/deceased.

175. Moreover, no seizure memo of the belongings of deceased, which were received from the doctors of hospital was prepared. Even the handing over memo when those belongings were handed over to brother of deceased was prepared by IO as admitted by him at page State VS Rajender Bharti @ Shalu and Ors. Page no. 137 of 144 FIR no. 499/15 PSSubhash Place no. 2 of crossexamination dated 25.02.2019.

III. Photographs of accused Appu and Rajender Bharti not placed on record :

176. In his testimony IO had stated that he had shown photographs of accused Appu and Rajender Bhati to PW 2 but those photographs have not been placed on record.

IV. Vital evidence withheld :

177. In the last page of his crossexamination dated 25.02.2019, IO stated that as per PCR form and CCTV footage, PCR van took the injured from the spot at 17:37:42 hours. No CCTV footage has been placed on record in which it could have been seen that PCR took the injured from the spot. In such circumstances, it appears that vital evidence i.e. CCTV has been withheld by the IO. In the case of Tomaso Bruno and Another Vs State of Uttar Pradesh (supra), the Hon'ble Apex Court held that adverse inference is liable to be drawn against prosecution for this lapse.

178. It has already been discussed that IO has even State VS Rajender Bharti @ Shalu and Ors. Page no. 138 of 144 FIR no. 499/15 PSSubhash Place admitted that CCTV footage was installed on the wine shop looking towards the place of occurrence which was encircled by yellow tape i.e. where the deceased was found lying but the said CCTV footage was also not placed on record.

179. IO did not even produce the CCTV footage of entry/exit of Max hospital. It is matter of common knowledge that Max hospital is a elite hospital and generally big hospitals are fitted with CCTV cameras. Had the IO produced the electronic evidence of the hospital it would have given clinching evidence as to who had visited the hospital and at what time.

180. Moreover, CDR and location chart of none of accused persons was brought by IO on record. It is already discussed that the scuffle between the parties was not preplanned. Accused persons were allegedly already sitting in the park when the deceased had visited the said park. In the facts and circumstance, it cannot be presumed that accused persons were not carrying their mobile phones. Even three mobile phones were seized by the IO from accused Appu at the time of his alleged State VS Rajender Bharti @ Shalu and Ors. Page no. 139 of 144 FIR no. 499/15 PSSubhash Place arrest but IO did not collect the CDR or the location chart of either of the mobile phones used by accused persons.

181. IO did not even produce the call recording available in the phone of the deceased. In his testimony he stated that he had heard the call recording of the phone of deceased and got to know about the conversation of deceased with PW9. The mobile phone or the call recordings were not produced in the court. Moreover in the facts and circumstances the possibility of tampering with record cannot be ruled out. It is rightly submitted by learned defence counsels that an adverse inference is to be drawn against the prosecution because it is suggested by the learned defence counsels that had this evidence been produced before the court, the same would have proved the innocence of accused persons.

V. Improbable site plan:

182. Court has already discussed while deciding point for determination no. 2, that the directions of the site plan do not correspond to the directions narrated by PW2. PW2 also stated in his crossexamination that he was not State VS Rajender Bharti @ Shalu and Ors. Page no. 140 of 144 FIR no. 499/15 PSSubhash Place taken to the place of occurrence after death of his brother. Even PW4 stated that site plan bearing his signature was not prepared at his instance. Hence, the preparation of site plan Ex.PW2/B at the instance of PW2 is doubtful. Moreover no trail of blood is shown in the site plan to verify the direction in which deceased ran after being stabbed in the park though it is stated by the IO that he had collected the earth control and blood stain earth control from both places i.e. park where deceased was stabbed and from the road where deceased fell down.

VI. Change of knife sent for subsequent opinion as against the knife produced in the court:

183. It is already observed while deciding point no. 7 that the knife which was identified by IO during his examination in chief was fitted with torch and the knife which was sent to doctor for subsequent opinion was not fitted with any torch.

VII. Possibility of tampering of remaining case State VS Rajender Bharti @ Shalu and Ors. Page no. 141 of 144 FIR no. 499/15 PSSubhash Place property:

184. As per the seizure memo of the clothes of deceased only his pant and shirt was seized by the IO but when the case property was opened in court during the testimony of PW3 an angocha (local towel) was also found contained in the parcel containing the clothes of deceased. There is no explanation how this article was added to the clothes of deceased when the same was not seized.

185. In such circumstances, the possibility of incriminating evidence being planted upon the accused cannot be ruled out.

186. This point is accordingly decided.

11. WHETHER THE PROSECUTION IS ABLE TO PROVE ITS CASE, IF SO, FOR WHICH OFFENCES AND AGAINST WHICH OF THE OFFENDER(S) :

187. In the facts and circumstances, this court is of the opinion that cumulative effect of the points for determination, as decided above renders the entire State VS Rajender Bharti @ Shalu and Ors. Page no. 142 of 144 FIR no. 499/15 PSSubhash Place prosecution case doubtful. Each case has to depend on its peculiar facts and circumstances. The facts and circumstances of the judgments relied upon by the learned Addl. PP and learned counsel for the complainant do not apply to the facts and circumstances of the present case in view of unreliable testimony and prejudicial investigation against the accused persons.

188. In view of the aforesaid discussion it is held that prosecution has miserably failed to prove its case against either of accused. The accused persons are thus entitled to be acquitted against the charges levelled against him.

Conclusion:

189. In view of the aforementioned discussion, this court is of the opinion that all accused persons are entitled for acquittal for benefit of doubt. Held accordingly.

190. Accused persons are thus acquitted of the charges levelled against them.

191. Articles seized vide seizure memos and personal search memos of accused persons be released to them State VS Rajender Bharti @ Shalu and Ors. Page no. 143 of 144 FIR no. 499/15 PSSubhash Place against acknowledgment.

192. Case property be confiscated to State and the same may be disposed off as per rules and procedures after the lapse of period of filing of appeal.

193. It is informed by the father of deceased Sh. Satbir that the family of deceased has not received any compensation. In the facts and circumstances, Sh. Satbir and/or the family of deceased is at liberty to approach Delhi Legal Services Authority, NorthWest District, to receive compensation, as per rules, under Delhi Victim Compensation Scheme and/or any other scheme available.

194. File be consigned to record room.



                                                                         Digitally
          Announced in the open court                                    signed by
                                                                         AJAY PANDEY
          on the 24th day of April, 2019                        AJAY     Date:
                                                                PANDEY   2019.04.24
                                                                         16:21:35 -
                                                                         0500


                                                              (Ajay Pandey)
                                                     Additional Sessions Judge (NW)
                                                            Rohini Court/Delhi




State VS Rajender Bharti @ Shalu and Ors.                                Page no. 144 of 144
FIR no. 499/15
PSSubhash Place

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State vs Rajender Bharti @ Shalu And Ors. Page No. ... on 24 April, 2019