Delhi District Court
Sc No. 123/09 State vs . Mukesh & Anr. on 19 January, 2011
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 01 (CENTRAL) DELHI
SC No. 123/09 FIR No.: 274/07
ID No.: 02401R1014162007 PS : Nabi Karim
U/Sec : 304/34 IPC
State
Versus
1. Mukesh s/o Ram Chander,
R/o H. No. 6577, Gali No.15,
Neem Wala Chowk, Nabi Karim,
Delhi.
2. Sanjay s/o Dalip Kumar,
R/o H. No. 6577, Gali No.15,
Neem Wala Chowk, Nabi Karim,
Delhi.
3. Kailash @ Pondu s/o Om Prakash,
R/o H. No. 6577, Gali No.15,
Neem Wala Chowk, Nabi Karim,
Delhi.
Instituted on : 08.10.2007
SC No. 123/09 State Vs. Mukesh & anr.
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Judgment reserved on: 19.01.2011
Judgment pronounced on: 19.01.2011
J U D G M E N T
1. Accused no.1 Mukesh (hereinafter, "A1"), accused no.2 Sanjay (hereinafter, "A2"), and accused no.3 Kailash @ Pondu (hereinafter, "A3"), all residents of House No. 6577, Gali No.15, Neemwala Chowk, Nabi Karim, Delhi, at least one of them, A3 has had a brush with criminal law in the past, report of police station Nabi Karim on judicial record indicating he to be an accused in FIR No. 09/2000 for offences under Section 324/394/34 IPC. While there is a report indicating no such past criminal record respecting A1, the record is silent concerning A
2. The record indicates all these three persons are related to each other, A3 described by A1 as son of his mausi (sister of his mother), while A2 is described by him as son of his mama (brother of his mother).
2. House No. 6577 adjoins property no. 6604/2 which is used as a godown. It appears that the terrace on the second floor of the said property is used for sleeping in the night, inter alia, by the said family which includes Rekha (PW3), sister of A1.
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3. Om Prakash son of Mala Ram (PW4), is another local resident, his house being described as T115, Pradhan Chowk, Nabi Karim, Delhi. It appears his jija (husband of sister) Madan Lal (PW5) also lives with him under the same roof along with his sons Naresh (the deceased) and Vishnu. The record indicates Naresh, the deceased, to be a person with criminal antecedents, report dated 12.07.2007 on judicial record indicating his involvement in at least 9 criminal cases in the past starting with FIR No.09/2000 and ending with FIR no. 190/2007, both of police station Nabi Karim. The history sheet indicates his involvement in at least one cases of NDPS Act (FIR No. 362/2002 of PS Sadar Bazar) besides (at least) three cases of robbery, all of police station Nabi Karim.
4. The house that adjoins the side of house of the accused persons is described as house no. 6576 where a neighbouring family consisting of, besides others Santosh @ Kali (PW1) lives. Also located close by (though not specifically shown in the site plan) is House No. 6586 where another witness Prince Kumar (PW2) SC No. 123/09 State Vs. Mukesh & anr.
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lives with his family. He is the person who is stated to have his office at ground floor of House No. 6604/02 (on the second floor of which the incident involved in the case is alleged to have occurred).
5. The three accused persons have faced this trial on the allegations that on 11.07.2007 at about 11 PM, they in furtherance of their common intention deliberately caused injuries on the person of Naresh (the deceased), on the second floor terrace of House No. 6604/2, Neemwala Chowk, Nabi Karim, Delhi as a result of which Naresh died in R.M.L.Hospital at about 3.20 A.M. on 12.07.2007.
6. The sequence of events leading to the charge sheet at hand may be noticed at this stage.
7. On 12.07.2007, at 0145 hours Naresh, (the deceased) was brought in injured state to Dr. R.M.L.Hospital (hereinafter, "the hospital"), by his father Madan Lal (PW5). The condition of Naresh was critical at that time. He was found to be nonoriented and had a wound of 4 cm over left parietal region. The MLC indicates strong smell of alcohol emanating from his breath. Naresh was SC No. 123/09 State Vs. Mukesh & anr.
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examined by Dr. Pankaj Bansal (PW7) who was the medical officer on duty and recorded MLC (Ex. PW 7/A). The case history mentioned in MLC indicates the history of "fall". The patient was referred to surgery department besides the line of treatment having been indicated.
8. Information about this event was conveyed from the hospital at 0200 hours of 12.07.2007 by duty constable Subash. This was recorded vide DD no.2B(Ex. PW 8/A). In this communication, duty constable also informed police station Nabi Karim (hereinafter, "the police station") that Naresh had been brought by his father in unconscious state after fall from terrace.
9. The DD entry thus recorded was made over to SI Ras Dhari Singh (PW19) who along with Ct. Girwar Singh (PW20) went to the hospital and collected MLC. It was indicated on the MLC that the injury suffered by Naresh was blunt. It was recorded on the MLC at 0230 hours of 12.07.2007 that Naresh was unfit for statement. PW19 SI Ras Dhari Singh ( the first investigating officer) was met by Om Prakash (PW4), maternal uncle of the SC No. 123/09 State Vs. Mukesh & anr.
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deceased. The first investigating officer (hereinafter, "the first I.O.") recorded the statement (Ex. PW 4/A) of Om Prakash (PW4). By the time this exercise was being undertaken, Naresh succumbed to injuries at 0320 hours of 12.07.2004 which fact came to be recorded on the MLC.
10. In his statement (Ex. PW 4/A), Om Prakash (PW4), stated before the first I.O. that his sister Krishn Devi having died, his jija Madan Lal (PW5) with his two sons including Naresh (the deceased) was living with him in the same house. He disclosed that the deceased had come home only 57 days ago after having been released from jail and was not working anywhere. He stated that the deceased had become friendly with A1, A2 and A3 and would roam around in their company. He stated that on the night in question at about 11 PM, when he was sleeping on the terrace of his house, he heard noise of quarrel coming from the terrace of house No.6604/02 in which he heard the sound of noise of the deceased.
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11. Om Prakash (PW4) further stated in the said statement (Ex. PW 4/A) that he went to the place in question to find out the facts for himself and saw the three accused persons roughing up the deceased with fists and slaps in which course, A1 was saying that the deceased had teased his sister (Rekha). In the said statement (Ex. PW 4/A), Om Prakash (PW4) is further stated to have alleged that A2 and A3 had caught hold of the deceased, A1 picked up a brick piece from the terrace and used it for hitting on the left side head/temple of the deceased, who immediately fell down there itself. The statement further went on to claim that Om Prakash (PW4) had called his jija (PW5) to the said place telling him that Naresh was being beaten at which stage A2 and A3 fled away from the scene. He stated that there was bleeding from the head of Naresh and he was brought down from the terrace by him and his jija (PW5) and both of them had brought him in a three wheeler scooter (TSR) to the hospital and got him admitted there. It was stated that A1 had also come to the hospital but had run away upon seeing the police. SC No. 123/09 State Vs. Mukesh & anr.
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12. In view of the above statement of PW4 and the death of Naresh, the first I.O. made his endorsement (Ex.PW 19/A) seeking a case to be registered under Section 304/34 IPC. The rukka was taken to policed station by Ct. Girwar Singh (PW2) and there upon FIR (Ex. PW 8/C) came to be registered with corresponding endorsement (Ex. PW 8/B) on the rukka recorded at 0545 hours of 12.07.2007.
13. The information about the death reached the police station whereupon Inspt. Ram Avtar (PW22), who was posted as additional SHO along with Ct. Bal Kishan (PW12), Ct. Pardeep (PW13) and Ct. Arvind (PW18) went to the place of occurrence where he was joined by the first I.O. From this stage onwards, the investigation was carried out by Inspt. Ram Avtar (hereinafter referred to as, "the final IO" or "Addl. SHO").
14. At the scene of incident, the Addl. SHO prepared site plan (Ex. PW 22/A). Later, SI Mahesh Kumar (PW10) would prepare a plan drawn to scale (Ex. PW 10/A). It may be mentioned here itself that the difficulty with these two plans is not only that they would not show the SC No. 123/09 State Vs. Mukesh & anr.
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exact location of House No.6586 (of PW2) but also omit from depiction the house No. T115, (of PW4) from the terrace of which Om Prakash (PW4), the first informant, claimed to have heard the noise of quarrel including identifying the sound/voice of the deceased.
15. The I.O. found blood spilled on the terrace of the second floor of House No. 6604/02. He called the crime team which inspected the scene of incident and took photographs. The report (Ex. PW 14/A) prepared by SI Anil Kumar (PW14), a member of crime team, is of no assistance whatsoever. Ct. Mahesh Kumar (PW11) who is photographer member of crime team, is stated to have exposed seven photographs with the help of negatives (Ex. PW 11/B1 to B7) with the help of which he would later prepare positive photographs (Ex.PW11/A1 to A7). These photographs, it may be mentioned here itself, show blood stains spelled over a large part of terrace. The I.O. seized sample of blood found on the terrace by breaking floor and also lifting earth control. Blood was found on the stairs in front of another House no. BB374, main road, Nabi Karim, Delhi, which was SC No. 123/09 State Vs. Mukesh & anr.
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also similarly lifted. These exhibits were seized, kept in separate parcels and then seized after being sealed vide formal seizure memo (Ex. PW 4/D). The clothes of Madan Lal (PW5), father of the deceased were also found to be having blood stains. These clothes, the shirt and trousers (Ex. P1 collectively) were also seized, sealed in a parcel and then taken over vide formal seizure memo (Ex. PW 4/E).
16. The I.O. prepared death report (Ex. PW 20/B), got the dead body identified by PW4 Om Prakash and PW5 Madan Lal vide separate statements (Ex.PW 4/B and Ex. PW 5/A respectively) and made an application (Ex. PW 2/C) for postmortem examination addressed to Department of Forensic Medicines, Maulana Azad Medical College (MAMC).
17.The postmortem examination was conducted by Dr. Vijay Dhankar, (PW16) in the mortuary of MAMC and as per report (Ex. PW 16/A) Naresh Kuamr was found to have suffered the following nine external injuries:
(i) A stitched wound 3 cm long present over left parietal region of head;
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(ii) A contusion 3 x 2 cm present over the left eye;
(iii) A laceration 1 x 0.5 cm x muscle deep present 2 cm below the right eye;
(iv) An abrasion 3 x 2 cm present over left shoulder;
(v) An abrasion 8 x 4 cm present over back of right shoulder;
(vi) An abrasion 5 x 05.cm present over back of left shoulder;
(vii) Multiple abrasions in an area of 6 x 5 cm present over back of left elbow;
(viii) Multiple scabbed linear abrasions present over inner aspect at right fore arm;
(ix) An abrasion 2 x 1 cm present over inner aspect of right foot.
18. As per the opinion of the autopsy doctor, the death had occurred due to cerebral damage consequent to blunt force injury to the head via injury no.1. All injuries in the opinion of autpsy doctor were ante mortem (all injuries except injury no.8 being fresh). As per postmortem report, injury no.1 was sufficient to cause death in the ordinary course of nature.
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19. The autopsy doctor preserved the trousers, under wear and vest of the deceased, also preserving sample of blood and sample viscera taken from the dead body which were handed over to the I.O vide formal seizure memo (Ex. PW 12/A). The dead body was handed over after postmortem examination to PW5 Madan Lal vide memo Ex. PW 4/C). It is the case of prosecution that all the three accused persons were brought to the police station by Raj Kumar (PW6), an acquaintance at 7 PM of 12.07.2007, when they were arrested vide arrest memos (Ex. PW 4/F, 4/H and 4/G respectively) after personal search vide separate memos (Ex. PW 4/I, 7/K and 7/J respectively).
20. It is alleged that at the time of his arrest, the shirt (Ex.P
2) and Vest(Ex.P1A) worn on his person by A1 were found to be having blood stains and, therefore, seized after being put in a parcel and sealed and taken over vide memo (Ex. PW 13/C).
21. It is alleged that all the three accused persons were interrogated during which they made disclosures which SC No. 123/09 State Vs. Mukesh & anr.
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were formally recorded (Ex. PW 13/B, 13/C and 13/A respectively).
22. It is further the case of the prosecution that besides medical examination immediately after their arrest, A1 was taken to Lady Harding Medical College and Hospital on 27.08.2007 and, vide memo (Ex. PW 21/X), sample of his blood collected.
23. On 08.10.2007, the I.O. approached the autopsy doctor (PW16) again for final opinion regarding injuries. As per his further report (Ex. PW 16/B), the autopsy doctor PW16 Vijay Dhankar opined that the injuries on the dead body of deceased could have been caused by fist blows, hitting the head on a hard surface or by hitting the head with a hard blunt object.
24.The exhibits that were seized at different stages of investigation were deposited in malkhana of the police station with HC Mahender (PW17), the MHC(M) who entered the same against entries in register No.19(Ex. PW 17/A).
25. The viscera of the deceased and the other exhibits were sent by MHC(M) to Forensic Science Laboratory (FSL) SC No. 123/09 State Vs. Mukesh & anr.
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Rohini on 30.08.2007 vide separate road certificates (Ex.PW 17/B) and (Ex. PW 17/C) respectively. The said exhibits were examined in FSL in May and July, 2008 only. The FSL report Ex. PW 22/E dated 23.05.2008 respecting viscera ruled out poisoning but indicated "Ethyl alcohol" to have been found in stomach (small intestine), liver, spleen and kidney of the deceased. The FSL reports dated 23.07.2008 Ex. PW 22/F and 22/G together indicated that the blood group of the deceased was "A" which was the blood group of the blood stains that had been found on the terrace of second floor of House No. 6604/02 as also on the stairs of House No. BB374, main road, Nabi Karim and, more importantly, on the shirt (Ex.P2) and vest (P1A) of A1. The further report Ex. PW 22/H dated 24.07.2008 of FSL confirmed blood stained floor of the terrace of second floor of House No.6604/02 matched with earth control collected from the same place.
26. The blood sample of A1 as had been collected on 27.08.2007, however, had putrefied and hence no opinion in that regard was given by FSL.
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27. On the basis of evidence collected in above nature including oral statements of the first informant (PW4), father of deceased (Ex. PW 5), sister of A1 ( cousin of A2 and A3), (PW3) besides two neighbours (PW1 and PW2) in addition to the statement of Raj Kumar (PW6), the last said to be a witness to extra judicial confession made by the accused persons before him, the charge sheet was laid in the court of Addl. Chief Metropolitan Magistrate ( ACMM) on 08.10.2007 seeking trial of the accused persons for offences under Section 304/34 IPC. The ACMM took cognizance, secured the presence of the accused persons, complied with the requirement of Section 207 Cr.P.C. and then committed the case to Sessions vide his order dated 22.10.2007.
28.My Ld. Predecessor considered the question of charge. He found the charge made out for offences under Section 304/34 IPC. Charge was framed on 29.11.2007 to which all the accused persons pleaded not guilty.
29.The prosecution led evidence by examining the following 22 witnesses:
(i) Santosh @ Kali, (PW1);
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(ii) Prince Kumar, (PW2);
(iii) Rekha, (PW3);
(iv) Om Prakash, (PW4);
(v) Madan Lal, (PW5);
(vi) Raj Kumar, (PW6);
(vii) Dr. Pankaj Bansal, (PW7);
(viii) HC Mahabir Singh, (PW8);
(ix) HC Subash Chandra, (PW9);
(x) SI Mahesh Kumar, (PW10);
(xi) Ct. Mahesh Kumar, (PW11);
(xii) Ct. Bal Kishan, (PW12);
(xiii) Ct. Pardeep, (PW13);
(xiv) SI Anil Kumar, (PW14);
(xv) Ct. Mahavir Singh, (PW15);
(xvi) Dr. Vijay Dhankar, (PW16);
(xvii) HC Mahadev, (PW17);
(xviii) Ct. Arvind, (PW18);
(xix) SI Ras Dhari Singh, (PW19);
(xx) Ct. Girwar Singh, (PW20);
(xxi) Dr. Shashank Agarwal, (PW21) and (xxii) Inspt. Ram Avtar Yadav, (PW22). SC No. 123/09 State Vs. Mukesh & anr.
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30. After the prosecution had rested its case, the statements of the accused persons were recorded under Section 313 Cr.P.C. In their statements, the accused claimed to be innocent and falsely implicated in this case denying the evidence of the prosecution showing their involvement as incorrect.
31. In his statement, A1 claimed that he had eloped with Pooja, niece of PW2 on which account, the latter had been nursing a grudge against him. He claimed that he had been falsely implicated at the instance of PW2 Prince Kumar in this case. He admitted that he had gone to PW4 and had informed him about Naresh Kumar having been injured.
32. A2 and A3, in their statements claimed that they had been implicated falsely by PW2 Prince Kumar on the basis of suspicion that they had helped A1 in eloping with his niece Pooja. A2 and A3 in their statements further claimed they were not even present at the place of incident at the relevant time. A2 claimed to be in his House No. 525/28 Village Khera, G.T.Road, Shahdra, SC No. 123/09 State Vs. Mukesh & anr.
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Delhi, while A3 claimed he was present at New Delhi Railway Station where he worked as a taxi driver.
33.All the accused persons sought opportunity to adduce evidence in defence which was given but on 18.10.2010, they made statement through counsel that they did not wish to produce any evidence in defence.
34. I have heard Sh. R.K.Tanwar, Addl. PP for the State and Sh. Ajay M.Lal, advocate for all accused persons. I have gone through the record.
35. The case of the prosecution begins with the version of the first informant, PW4 on whose statement (Ex. PW 4/A), the FIR (Ex. PW 8/C) came to be registered on the basis of endorsement (Ex. PW 19/A) of the first I.O. The document Ex. PW 4/A with endorsement Ex. PW 19/A have been proved by the first I.O. while the FIR (Ex. PW 8/C) with corresponding endorsement Ex. PW 8/D on the rukka have been proved by the duty officer (PW
8).
36. PW4, the first informant, admitted his signatures on the statement (Ex. PW 4/A). In his statement in the court, however, PW4 would not narrate the sequence set out SC No. 123/09 State Vs. Mukesh & anr.
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in the FIR based on the statement (Ex. PW 4/A) attributed to him. PW4 would not say in the court that he had heard the noise of quarrel coming from the terrace of House No.6604/02 including the noise of the deceased or he having gone to the said place to check out for himself sometime around 11 PM of 12.07.2007. PW4 testified that at about 11.30 PM, it was A1 who had come to him to his house and informed him that Naresh had been injured and had to be taken to hospital. He stated that he had gone with A1 to the roof of the house adjoining his own house and found Naresh lying in injured state with blood coming from head injury and also splattered on the roof. He stated that he with the help of PW5, and A1, had brought the deceased down stairs. He stated that conveyance could not be arranged for about two hours and, therefore, the deceased remained in the street in front of house of one Charanjit. It was around 2 AM, per PW4, that the deceased was taken to hospital in a TSR at which stage A1 with his mother had accompanied him and PW5 in the same TSR. He testified that the victim was got SC No. 123/09 State Vs. Mukesh & anr.
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admitted in the hospital but around 3.30 AM on 12.07.2004, he was declared dead. He stated police had met him in the hospital and recorded his statement. He also stated that the clothes of the deceased and of PW 5 were taken in possession by the police. He denied that he was an eye witness to the incident.
37. PW4 was declared hostile and was crossexamined. He conceded at this stage that three accused persons and the deceased were close friends. He admitted the suggestion of the Addl. PP that on 11.07.2007 at about 11 PM he was sleeping on the roof of House No. 6604/02. He denied the suggestion that he had been woken up on account of (noise of) a quarrel or that he had gone and seen the incident or having witnessed the accused persons having assaulted on the person of deceased, in the wake of allegations of A1 that the deceased had teased his sister Rekha who had been sleeping on the said roof. He denied that he had seen A1 hitting with a brick piece on the head of the deceased causing injuries on his person. SC No. 123/09 State Vs. Mukesh & anr.
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38. PW4 is shown to be witness to the arrest memos in respect of the accused persons. He admitted his signatures appearing on the said documents but denied that he was present at the time of their interrogation or that accused persons had admitted their involvement. He is also shown to be signatory of the seizure memo Ex. PW 13/C whereby the blood stained shirt and vest of A1 had been seized. He denied that this document was prepared in his presence or that he was the witness to any such seizure. During crossexamination, PW4 admitted the suggestion of the defence that the clothes of A1 had received blood stains because he had helped in carrying the deceased to the hospital.
39. PW5 was not a witness to the occurrence. This has been further admitted by him in his statement in the court. He deposed that he had learnt from PW4 about the incident whereupon he had gone with him to the terrace of the house in question where the deceased was lying wounded. He stated that he had been told by PW4 at the spot that the deceased had been beaten by the accused persons on the issue of teasing of the sister SC No. 123/09 State Vs. Mukesh & anr.
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of A1. He corroborated the prosecution case about his wearing apparel having been seized vide memo Ex. PW 4/E.
40. As per prosecution case, Rekha, PW3 was the root cause of the incident. It was alleged that she was sleeping on the terrace close to her brother A1 and cousins A2 and A3, when the deceased came to her bed and started improperly touching her. It was alleged that she had woken up, when the deceased asked her to accompany him to the roof of an adjoining house but when she resisted, he started forcibly molesting her on which she raised alarm which attracted the attention of the accused persons who came on the scene. It was alleged that the deceased was under the influence of liquor at that stage and despite being asked to go away he stood his ground and insisted that he would take PW 3 along and sleep with her. It was also alleged that at this stage, the deceased was assaulted by the accused persons, in the course of which A1 used a brick piece to cause injury that proved fatal. This is the sum and SC No. 123/09 State Vs. Mukesh & anr.
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substance of the statement under Section 161 Cr.P.C. (Ex. PW 3/A) which was attributed to PW3.
41. In the court, PW3 did not support the prosecution case in any manner. She denied that any such incident as has been alleged occurred during the night in question or she having given any such statement to the police. She even denied that she or the accused persons were present on the terrace of Hosue No. 6604/02 at the relevant point of time.
42. PW1 and PW2 are two neighbours each of whom was claimed by the prosecution to have given the version which is similar to prosecution case as initially founded on the statement Ex. PW 4/A attributed to PW4. The version of PW1 and PW2 to such effect was claimed on the basis of their respective statements under Section 161 Cr.P.C.(Ex. PW 1/A and Ex. PW 2/A respectively). Though these witnesses do speak about an incident of quarrel involving the three accused persons on one hand and the deceased on the other, the sequence of events deposed by them is at variance from their statements to the police during investigation. SC No. 123/09 State Vs. Mukesh & anr.
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43. PW1 testified that on the night in question, she along with her family was sleeping on the roof of the factory/godown which is same as house No.6604/02. She deposed that some neighbours including PW3, her brother A1 and cousins A2 and A3 also used to and were sleeping on the roof of the said godown adjacent to her house. She stated that during the night she had heard noise and got up and saw the quarrel. She stated that it was dark and she could not see who was giving beating to whom but added that all the four persons, A 1, A2, A3 and the deceased were quarreling with each other. She also added that during the quarrel PW4 and PW5 had also come to the place of occurrence along with Laxmi, mother of A1. She stated that she could not tell the reasons why the quarrel had taken place but then further added that A1 was uttering words to the effect that the deceased had come and lay down near his sister ("Naresh Meri Behan Ke Paas Aa Ke So Gaya").
44. PW1 was declared hostile and crossexamined by the Addl. PP. At this stage, she admitted that some pieces SC No. 123/09 State Vs. Mukesh & anr.
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of brick were lying on the roof of godown. She conceded that Rekha (Pw3) was also present when the quarrel was going on. She, however, denied that Rekha had told in her presence that deceased had put his hand on her person or had tried to take her away forcibly or that she herself had told the deceased not to tease Rekha. She denied that in her presence A1 had used a brick piece to hit on the head of the deceased or that after giving slap and fist blows A2 and A3 had thrown him on the roof.
45. During her crossexamination, PW1 conceded that the deceased was in the habit of teasing girls. She denied the suggestion that PW4 and PW5 had come to the spot after the quarrel was over. She denied the suggestion that PW3 was not present when the incident had taken place or that the deceased was heavily drunk or had fallen down to sustain injuries.
46. PW2 deposed that at about 10.30 PM, on 11.07.2007, he was present on the roof of his House No. 6586. He stated that he had seen from the said place the three accused persons and the deceased together on the roof SC No. 123/09 State Vs. Mukesh & anr.
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of House No.6604/02, Nabi Karim and that after some time he had heard the noise of quarrel between them. He stated that the quarrel had taken place on the issue of mobile and an amount of Rs.800/. He deposed the accused persons had beaten up Naresh as a result of which he had fallen down and that PW4 had come on the scene in the mean time. He deposed that he had asked PW4 to remove injured Naresh to the hospital immediately and that the deceased was brought down from the roof by PW4 and PW5. He further stated that the accused persons were having some object in their hands but he could not specifically describe the same.
47. PW2 was also declared hostile and crossexamined by the Addl. PP. He disowned his statement Ex. PW 2/A about teasing of Rekha by the deceased to be cause of quarrel. He denied the suggestion that A1 had hit on the head of the deceased with a stone piece. He denied the suggestion that he had created a new story about mobile phone and the amount of Rs.800/ being the reason for the quarrel.
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48. During his crossexamination by the defence counsel, PW2 stated that PW4 had come to the scene in the course of the quarrel but PW5 had come after the incident. He was asked but was unable to say if the deceased was under the influence of liquor on that day. It was suggested to him that he was deposing falsely against accused persons as A1 had eloped with his niece Pooja. He denied the said suggestion as incorrect.
49. PW6 Raj Kumar is the person who had allegedly brought the three accused persons to police station for surrender leading to their arrest vide memos Ex. PW 4/F, PW 4/H and PW 4/G respectively. He is signatory to the said arrest memos and also the personal search memos (Ex. PW 4/I, PW 7/A and PW 7/J respectively). As per prosecution case, after the incident accused persons had gone to the house of PW6. It was alleged that after their arrival, at his place the accused persons had admitted before him their involvement in the assault on the person of the deceased. A statement under Section 161 Cr.P.C. vide Ex. PW 6/A attributed to this SC No. 123/09 State Vs. Mukesh & anr.
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witness indicating extra judicial confession was thus relied upon.
50. PW6, however, turned hostile and would not support the prosecution case in above regard. Instead, he stated that he had learnt about the three accused persons having been apprehended by the police from Laxmi (mother of A1) whereupon he had gone to police station and learnt about the incident. He denied the claim of the prosecution about the extra judicial confession. He admitted his signatures on the arrest memos and the personal search memo stating his signatures had been taken on blank papers. He stated, under cross examination, that he had reached the police station at about 11.30 AM on 12.07.2007, thus, indicating that the accused persons had been in the custody of police even at 11.30 AM on 12.07.2007.
51. The MLC Ex. PW 7/A has been proved by PW7 Dr. Pankaj Bansal who had examined the deceased in the hospital when he was brought there at 1.45 AM on 12.07.2007. PW7 stated that he had recorded the general condition of the patient and referred him to SC No. 123/09 State Vs. Mukesh & anr.
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Neuro surgery for further management. Under cross examination, he admitted as correct the suggest that father of the patient (PW5) had told him about the history of fall which he had duly recorded at point "X" on the MLC (Ex. PW 7/A).
52. PW9 HC Subash Chand was the duty constable in the hospital on the night in question. He communicated the fact that Naresh had been brought in injured state to the hospital and MLC having been prepared in his respect. This was recorded by PW8, the duty officer in police station at the relevant time, vide DD no.2B. PW8 proved copy of this DD entry vide Ex. PW 8/A. Defence counsel pointed out that it was recorded in this DD entry that Naresh had suffered injuries and had been brought in unconscious state in the hospital after fall from the terrace. Apparently, this version would have been picked up by PW9 from the endorsement to this effect on the MLC in the hand of PW7 as mentioned earlier.
53. PW19, the first I.O., deposed having gone with PW20 to the hospital and having collected MLC and got the statement of PW4 recorded on which the FIR came to SC No. 123/09 State Vs. Mukesh & anr.
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be registered and then having gone to the place of incident where he was met by PW22, the final I.O.
54. PW19 and PW22 assisted by PW18, PW12 and PW 13 have spoken about various steps taken in investigation of the case. As already mentioned earlier, these steps included the visit by the Crime Team, which included PW14 whose report Ex. PW 14/A is of no consequence, besides PW11 photographer. The depiction in photographs has already been referred to the extent necessary and relevant.
55. PW22 has proved, his word being corroborated by PW 4, PW5 and PW19, about blood spilled on the terrace and earth control having been seized vide memo (Ex. PW 4/D) from the terrace of second floor of House No.6604/02 and also from the stair of House No. BB 374, main road, Nabi Karim.
56. During autopsy, PW16 would preserve the sample of blood of the decease which, along with other exhibits, was seized vide memo Ex. PW 12/A as proved by PW 17, MHC(M). Exhibits were sent to FSL. The FSL reports Ex. PW 22/F, 22/G and 22/H together leave no room for SC No. 123/09 State Vs. Mukesh & anr.
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doubts that the deceased suffered injuries on the terrace of the said roof from where he was brought down.
57. PW22 has proved site plan Ex. PW 22/A which is complemented by scaled site plan Ex. PW 10/A, later prepared by PW10 at the instance of PW2. The deficiencies in these site plans have already been mentioned in the earlier part of this judgment.
58. Be that as it may, PW22 proved the death report Ex. PW 22/B. His word in this regard is corroborated by PW4 and PW5 who had identified the dead body vide statements Ex. PW 4/B and Ex. PW 5/A before post mortem examination in the mortuary of MAMC on application Ex. PW 22/C.
59. The postmortem examination report Ex. PW 16/A has been proved by autopsy doctor who also proved his further opinion Ex. PW 16/B given on 08.10.2007. The gist of these reports has already been noticed at sufficient length and does bear repetition.
60. As mentioned earlier, the viscera, preserved during autopsy, had also been handed over to the IO vide memo Ex. PW 12/A and after deposit in the malkhana vide entries Ex. PW 17/A was sent to FSL vide road SC No. 123/09 State Vs. Mukesh & anr.
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certificate Ex. PW 17/B. The viscera report Ex. PW 22/E has confirmed the factum recorded in the MLC by PW7 to the effect that deceased was under heavy influence of alcohol at the relevant time.
61. PW22 deposed about the seizure of the blood stained shirt and trousers (Ex. P1 collectively) of PW5 vide memo Ex. PW 4/E. As per his evidence, these clothes were taken in possession and sealed with seal of RAY and assigned exhibit no.7. Evidence of PW17 confirms this parcel along with other exhibits also received in malkhana vide Ex. PW 17/A and sent to FSL with other exhibits vide road certificate Ex. PW 17/C. The FSL reports exhibits PW 22/F and 22/G have confirmed that the said clothes of PW5 carried blood stains of human origin of group "A", the same as that of the deceased.
62. The evidence of PW22 corroborated by that on PW13 and PW18 shows that at the time of his arrest A1 was found wearing shirt (Ex. P2 and Vest Ex.P1A) which carried blood stains. As per their evidence these clothes were also seized, put in a parcel, sealed with seal of RAY and assigned exhibit No.8 before being formally SC No. 123/09 State Vs. Mukesh & anr.
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handed over vide memo Ex. PW 13/C. PW4 is also a signatory to this seizure memo. He, however, denied having witnessed any such steps in the investigation. He admitted his signatures on the said document but would not support the prosecution case about the clothes of A 1 having been seized in his presence. I do not think he has been truthful in this regard in as much as there is no reason to disbelieve the statement of PW22 supported by PW13 and PW18 about this fact.
63. The shirt and vest of A1 is also shown by the evidence of PW17 to be amongst the exhibits which were received in the malkhana vide Ex. PW 17/A and sent with other exhibits to FSL Vide Ex. PW 17/C. The FSL reports Ex.PW 22/F and PW 22/G shows that the said wearing apparels of A1 also had blood stains of human origin of group "A", the same as that of the deceased.
64. The prosecution had also relied upon sample of blood which had been collected on 27.08.2007. The MLC Ex. PW 22/H prepared at that time has been proved by PW 21 who identified the signatures of Dr. Abhijeet Singh, who had prepared the said document. The MLC itself is SC No. 123/09 State Vs. Mukesh & anr.
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of no consequence as no injuries were noticed. It only confirms that the blood sample of A1 had been collected. This blood sample was also part of the material that was sent to FSL vide road certificate dated 30.08.2007 vide Ex. PW 17/C. Unfortunately, the FSL sat over this exhibit till 23.07.2008 when it issued reports Ex. PW 22/F and 22/G. The said sample could not be analysed for any clear report/opinion since it had, by that time, putrefied. So much for the talk for scientific investigation/aids!
65. The IO has referred to the documents Ex. PW 13/B, PW 13/C and PW 13/A claiming them to be the disclosure statements made by A1, A2 and A3 during investigation/interrogation. PW13 and PW18 made statements lending to support him in this regard. PW4 was also shown to be the witness to these disclosure statements. These disclosure statements are not shown to have led to discovery of any further fact/evidence/material. In these circumstances, they are not admissible in evidence, they being hit by provisions of Section 25 & 26 of Indian Evidence Act. SC No. 123/09 State Vs. Mukesh & anr.
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66. On careful appraisal of the evidence of the prosecution, I find it difficult to rely on the half hearted statements of PW1 and PW2. As indicated earlier, PW2 may have a motive to falsely frame the accused persons, in that there is history of enmity between him on one side and the accused persons on the other, he having eloped with a girl from the family of the latter.
67. Be that as it may, the prosecution case is hazy about the ability of PW2 to hear what was going on, on the terrace where the incident is shown to have occurred from the terrace of the room where this witness himself was sleeping. His house is not even shown in the site plan and, therefore, there is no confirmation that it would be in such location where from scene of quarrel could be visible. Not only this, PW2 has come out with an entirely different version from one attributed to him in his statement under Section 161 Cr.P.C. which was similar to the one of other witnesses, particularly in respect of the genesis of the incident. PW2 would not speak about any incident involving an indecent assault on the person of PW3 Rekha by the deceased or the latter having propositioned to her in the manner stated. PW2 instead came out with altogether new story of quarrel having ensued over a mobile and amount of Rs.800/. This being a version coming SC No. 123/09 State Vs. Mukesh & anr.
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from for the first time during trial in the court, doubts arise as to whether PW2 was at all present in the vicinity when the incident took place.
68. PW1 though speaking about a quarrel between the two sides, also would not support the allegations regarding deceased having come near the cot of PW3 Rekha or she having learnt about this in the midst of the quarrel.
69. PW5, father of the deceased does speak about PW4 having told him that the deceased had been assaulted by the accused persons. But then, his word in this regard is not supported by PW4, who is also a close relative, rather a person under whose roof, the deceased was living during those days and undoubtedly one of the first persons, who arrived at the scene, after the deceased came to be injured.
70.The conduct of A1, as narrated by PW4 in fact gives rise to serious doubts about his complicity in the offence. It has been stated by PW4 that A1 himself had come and reported to him that the deceased was lying in injured state on the terrace of the building in question. This does not go well with the prosecution story that the accused persons had fled away from the scene after the occurrence.
71. In fact, PW4 goes to the extent of stating that A1 had even helped him and the father of the deceased in bringing him SC No. 123/09 State Vs. Mukesh & anr.
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down from the upstairs and had even accompanied them to the hospital. This would also explain the blood stains on the clothes of A1.
72. It has come in the evidence that the deceased was heavily drunk and under the influence of alcohol. This has come not only in the MLC but also in the viscera report. In this light, the first DD entry and the history of injuries mentioned to the doctor at the time of MLC assume great significance. It had been reported to the examining medical officer that the deceased had suffered injuries due to fall. This is what was the version of PW5, father of the deceased, who was with the deceased when he was brought in the hospital. This version, in fact, negates the effect of his statement in the court that he learnt from PW4 earlier that the deceased was assaulted by the accused persons. This was the version conveyed initially to the police station as came to be recorded in DD no.2B vide Ex. PW 8/A.
73. In above facts and circumstances, serious doubts persist about the truthfulness in the version of the witnesses who speak about the quarrel involving the deceased on one hand and the accused persons on the other. The benefit of doubts will have to be extended to the accused who are, thus, acquitted.
74.File be consigned to record room.
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Pronounced in open court on th This 19 day of January, 2011 (R.K.Gauba) Addl. Sessions Judge 1 Central, Delhi.
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