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Delhi District Court

State vs . Vinod @ Nehru on 1 June, 2013

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II 
         (NORTH­WEST): ROHINI COURTS: DELHI


Session Case No. 117/12
Unique Case ID No.: 02404R0305882012

State                                Vs.               Vinod @ Nehru
                                                       S/o Gulshan Kumar
                                                       R/o Jhuggi No. 1818, G­Block,
                                                       Jahangir Puri, Delhi
                                                       (Convicted)

FIR No.:                             187/2012
Police Station:                      Jahangir Puri
Under Sections:                      302/394/411/34 IPC &
                                     25/27 of Arms Act

Date of committal to Sessions Court: 9.11.2012

Date on which orders were reserved: 21.5.2013

Date on which judgment announced: 21.5.2013


JUDGMENT:

(1) As per the allegations on 27.7.2012 at about 9:00­1:00 PM near MCD dumping ground, Shah Alam Bandh Road, Jahangir Puri the accused Vinod @ Nehru along with Pappu @ Birbal @ Lapeta (juvenile) in furtherance of their common intention committed robbery of mobile phone belonging to Vinod Kumar Sikri from his possession and while committing the robbery they voluntarily caused hurt upon Vinod Kumar Sikri by St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 1 stabbing him on his chest and thereby caused his death. Further, as per the allegations at open field of Delhi Jal Board, Jahangir Puri the accused Vinod @ Nehru dishonestly received or retained the stolen mobile phone make LG, Model LG­6210 knowing or having reasons to believe the same to be a stolen property.

BRIEF FACTS / CASE OF THE PROSECUTION:

(2) The case of the prosecution is that on 28.7.2012 at about 10:30 PM an information was received vide DD No.27A that a person was lying in unconscious condition at Mukundpur red light. On this SI Krishan along with Ct. Krishan reached the spot i.e. Shah Alam Bandh Road near Mukundpur Red Light Jahangir Puri and found one bicycle, one bag and a lot of blood there. They came to know that the injured was already taken to the hospital by PCR on which they went to BJRM Hospital where they collected the MLC of the injured Vinod Kumar Sikri who was declared brought dead by the doctors. SI Krishan prepared a rukka on the basis of which the present case was got registered.

(3) After registration of the FIR the investigations were marked to Inspector J.P. Meena after which the postmortem on the body of the deceased was conducted. During investigations on 28.07.2012 HC Narender informed him that he had received secret information about the assailants of this case. Pursuant to the same on 29.07.2012 HC Narender met Inspector J.P. Meena at about 8AM and informed him that he had information St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 2 regarding the two assailants who committed the murder of the cyclist on 27.07.2012 that they were going to flee away after selling the mobile phone of the deceased behind the Paryas, near Delhi Jal Board Ground and he also disclosed the name of the one of the assailants as Birbal @ Lapeta. Ct.

Mukesh also met the Investigating Officer and informed him that he had seen Birbal @ Lapeta and Vinod @ Nehru with blood stained clothes at about 10:15 PM on 27.07.2012 at Adarsh Nagar crossing coming from the MCD dumping ground, Jahangirpuri and when he tried to stop them they ran away and he could not apprehend them as they entered in the dense jhuggies. Thereafter the police team reached behind Paryas and at about 9:15 AM they apprehended Birbal @ Lapeta @ Pappu and Vinod @ Nehru and HC Narender knew Birbal @ Lapeta as he was also arrested earlier. One buttondar knife with two blades and one torch on it at the mid portion was recovered from the possession of Birbal @ Lapeta which knife was seized. However, since Birbal @ Lapeta was less then 18 years therefore the Juvenile Welfare Officer SI Sandeep was called and mother of Birbal @ Lapeta was also called. Further, one mobile phone of LG model 6210 without any SIM and memory card was recovered from the possession of accused Vinod @ Nehru, which mobile phone was seized. Both the accused were interrogated and they confessed about their involvement in the murder of deceased in this case after which both the accused were arrested. The wearing clothes of both the accused were taken into possession since they were blood stained. The accused Vinod was produced before the Court and St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 3 was sent to Judicial Custody whereas the Juvenile Birbal was sent to Observation Home. After completion of investigations the charge sheet was filed before the Court in respect of accused Vinod @ Nehru. CHARGE:

(4) Charges under Section 392/394/302/411 Indian Penal Code were settled against the accused Vinod @ Nehru to which he pleaded not guilty and claimed trial.

EVIDENCE:

(5) In order to prove its case the prosecution has examined as many as Twenty Four witnesses as under:

Public witnesses:

(6) PW13 Smt. Seema Sikri is the wife of the deceased who has deposed that on 27.07.2012 she was present at her home and at about 8.45PM she made a call to her husband Vinod Sikri on his mobile phone 9310762592 from her mobile phone 9711348862 to inquire as to in how much time he was reaching home on which her husband replied that he had started to proceed for home from the shop. According to the witness, thereafter she could not get contacted to her husband on his mobile phone when he did not reach home. The witness has testified that later on she came to know that somebody had murdered her husband and looted his St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 4 mobile phone and later on due to stab injury her husband expired. She has also deposed that on 01.12.2010 her husband had purchased a mobile phone which was gifted to her and she handed over the original bill of the said mobile phone, which was gifted to her by her husband, to the police which was taken into possession by the Investigating Officer vide memo Ex.PW13/A which bill is Ex.PW13/B. According to the witness when she handed over the bill to the Investigating Officer her brother in law (Jeth) Sh.

Madan Gopal was also present who also signed the memo.

(7) On a specific Court Question the witness has deposed that her husband was using a mobile phone make LG 6210 which was of brown and black colour.

(8) She has correctly identified the case property i.e. mobile phone of black and brown colour of make LG 6210 having IMEI No. A0000021B21B22 as the same as belong to her husband which he was using at the time of incident and also on which she had made a call to her husband, which mobile phone is Ex.P1.

(9) In her cross examination by Ld. Defence counsel, witness has deposed that her husband was using this for the last two to three years. According to the witness, she was never called to the Court or to the Police Station to identify the same and the said mobile is still with the police and was not released to her. According to him the mobile from which she had made a call to her husband, had been gifted to her by her husband. She is however unable to tell in whose name the said phone number was being St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 5 operating and has voluntarily explained that the said phone was gifted to her by her husband.

(10) PW14 Sh. Satya Nand Thakur is a Doctor by profession and is running a clinic at Main Road, Bhagwan Park, Hardev Nagar. He has deposed that he has shifted to Hardev Nagar only on 23.01.2013 and prior to that he was residing at L­29, Gali No. 23, Mahendra Park, Jahangirpuri, Delhi along with his family where he was residing for the last about ten years. According to him on 27.07.2012 at about 10:30 PM he along with his younger brother Kritya Nand Thakur after closing his clinic were going home on a motorcycle which was driven by his brother and when they reached near Shah Alam Bagh, near the MCD Kuredan, in the light of the motorcycle he suddenly noticed somebody lying on the road in a pool of blood. The witness has also deposed that he asked his brother to stop the bike and he went near the said person who was lying near the side of the road. He has proved that he immediately made a call to the PCR on 100 number from his mobile phone bearing No.9910425768. Witness has further deposed that he then tried to see the said person carefully and noticed that the said person was having a very fast breathing and was palpitating. The witness has also deposed that he got very scared on seeing the condition of that person and also noticed one cycle and one thaila / bag lying near the said person which were also blood stained. He has also deposed that he remained there for sometime and after about 15 minutes the PCR officials came to the spot and shifted the injured to the hospital. St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 6 According to him nobody was stopping there on the way while he remained there with his brother and the police officials also came to the spot who recorded his statement there itself.

(11) In his cross examination by Ld. Defence Counsel, witness has deposed that he is unable to tell the exact time when he saw the person lying there and has voluntarily explained that it was around 10:30 PM. According to the witness he did not notice anything else around the person lying there except the bag/thaila and the bicycle and has voluntarily explained that even people were not ready to stop despite his waving at the passing vehicle and indicating them to help, in fact one or two passerby did stop but on seeing the condition of the injured immediately went away. Witness has also deposed that he did not touch the person who was lying on the road and also did not disturb the things lying around him. He has testified that he did not provide immediate medical assistance to the person lying on the road and has voluntarily explained that he was not in a position to help him because he was not carrying his medical kit with him and the only help which he could think was to call the PCR.

(12) PW15 Sh. Daljeet Kumar Sikri is the brother of the deceased who has deposed that he is residing at D­14, Lord Krishna Road, Adarsh Nagar, Delhi­33 along with his family and he and his brothers resides in the same house in different floors and he reside on the second floor. According to the witness, his brother Madan Gopal Sikri resides on the first floor, his brother Vinod Kumar Sikri and his other handicap brother Sh. Surender St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 7 Kumar Sikri resided on the ground floor along with his mother. Witness has further deposed that on 27.07.2012 they received information from Police Station Adarsh Nagar that somebody had stabbed his brother Vinod Kumar Sikri and they were called to BJRM Hospital. He has also deposed that when they reached BJRM Hospital, he found that his brother had already expired. According to him, on the intervening night of 27/28.07.2012 he identified the dead body of his brother Vinod Kumar in the BJRM hospital mortuary vide Ex.PW15/A. Witness has testified that his brother used to carry a mobile phone bearing No. 9310762592 make LG model No. LG­6210 which was of a light brown and black color which mobile was not present with the articles of his brother which were given to them by the police and he suspected that somebody had stolen his mobile phone. According to the witness after the postmortem dead body was received by him vide memo Ex.PW15/B. (13) He has correctly identified mobile phone of black and brown color make LG­6210 bearing IMEI No. A0000021B21B22 as the same as belonging to his deceased brother which had been looted, which is Ex.P1. (14) In his cross examination by Ld. Defence Counsel, the witness has deposed that he is not aware from where his brother had purchased this phone. According to the witness, the number which his brother was using is very old but the mobile set he was using and which was stolen was perhaps being used by him for the last about year or may be more than that. Witness has denied the suggestion that his brother was not using the above mobile set St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 8 bearing IMEI No. A0000021B21B22.

(15) PW16 Sh. Madan Gopal Sikri is the brother of deceased who has deposed that he is residing at D­14, Lord Krishna Road, Adarsh Nagar, Delhi. ­33 along with his family. According to the witness he reside on the first floor and his brother Daljeet Sikri resides on the second floor and his brother Vinod Kumar Sikri and his other handicap brother Sh. Surender Kumar Sikri resided on the ground floor along with his mother. He has further deposed that on 27.07.2012 he was at his house, at around 11:00 PM one police officer had come to their house and informed them that there was some incident in which some person had been injured whose articles were lying at Shah Alam Bandh pushta. Witness has also deposed that he asked them to accompany him to verify the articles if it belong to their family members and at that time, the police officer did not disclose anything much. He has testified that when he went to the spot along with the said police officer, he found one cycle and a bag containing lunch box bottles etc. According to the witness he immediately identified the same belonging to his brother Vinod Kumar Sikri, on which the said police officer told him that the injured person i.e. his brother had been shifted to BJRM Hospital. The witness has further testified that at that time the said police officer did not confirm to him that his brother had expired and he immediately telephoned to Daljeet and informed him about the information whereas he himself went to BJRM Hospital along with said police official. He has also deposed that it was there that he came to know that his brother Vinod had St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 9 expired. Witness has further deposed that the body of his brother then shifted to the mortuary of the hospital and in the morning he identified his dead body vide memo Ex.PW16/A and after the postmortem dead body was received by him vide memo Ex.PW15/B. (16) The witness has further deposed that his deceased brother used to carry a mobile phone bearing No. 9310762592 bearing model No. LG­6210 which phone was missing when they checked the articles which were returned to them by the police. According to him, his brother Vinod Kumar had purchased this mobile set in the same of his wife Seema Sikri but the SIM was in his name and he was using this number for the last three­ four years. Witness has further deposed that on the date of the incident i.e. 27.07.2012 his brother Vinod was carrying this mobile with him because he was aware that Seema had spoken to him at 9 PM to find out if he had started for home or not on which his brother had told that he was about to start.

(17) Witness has also correctly identified the mobile phone of black and brown color make LG­6210 bearing IMEI No. A0000021B21B22 as the same belonging to his deceased brother which had been looted, which mobile phone is Ex.P1.

(18) In his cross examination by Ld. Defence counsel, witness has deposed that his brother had had purchased the above said mobile phone Ex.P1 from Adarsh Nagar almost four years ago and did not purchase this St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 10 mobile in his presence. He has admitted that on the date of the incident i.e. 27.07.2012 Seema had not made a call in his presence and has voluntarily explained that Vinod had got late and he asked Seema why he was late, on which Seema informed him that she had made a call to Vinod at 9:00 PM and he asked that he was about to start from his shop at Nehru Vihar. Witness has denied the suggestion that his brother was not using the above mobile set bearing IMEI No. A0000021B21B22 or that the same was not stolen.

Witnesses of Medical Record:

(19) PW17 Dr. Bhim Singh has deposed that on 28.07.2012 the body of the deceased Vinod Kumar Sikri was sent for postmortem by Inspector JP Meena and the body of the deceased was identified by the Investigating Officer as well as his relatives. According to the witness, he conducted the postmortem on the body of Vinod Kumar Sikri and the body was having blood stained T Shirt, Baniyan showing cut mark No.1 measuring approximately 3 cm, pant, underwear and sandal. He has proved that on examination there were following external injuries (20) Incised stab wound 3cm x 1cm into chest cavity deep, right side of chest, just lateral to mid­line, in fourth inter­coastal space, obliquely placed, lower outer angle obtuse, inner upper angle was acute. (21) According to the witness, on internal witness chest cavity shows cut in fourth inter­coastal space, cutting the skin, muscles, enters into right St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 11 side chest cavity cutting the medial part of right lung upper lobe, enters into left side of chest by cutting the aorta, posterior aspect, i.e. 0.7cm through and through, enters into upper part of left lung, direction of bone towards right to left, slightly upwards, depth approximately 13 cm, chest cavity full of clotted and fluid blood about two liters. He has testified that all other other organs were pale. He has proved having opined that the death was due to haemorrhagic shock consequent upon stab injury via injury no.1 which is antemortem in nature, fresh in duration, caused by simple sharp edged weapon like knife, sufficient to cause death in ordinary course of nature and time since death was about 12 hours. (22) The witness has proved the detailed postmortem report bearing no. 745/12 dated 28.07.2012 which is Ex.PW17/A. According to him after postmortem he handed over the clothes of the deceased and blood sample in gauze piece to the Investigating Officer alongwith sample seal of the hospital. He has further deposed that on 16.08.2012 he received an application from Inspector Inspector J.P. Meena of Police Station Jahangir Puri, Delhi alongwith sealed packet sealed with the seal of JP three numbers for subsequent opinion regarding weapon of offence. The witness has also deposed that on opening the seals he found one knife having two single edged blades middle portion of the handle as described in his sketch Ex.PW17/B and after examination of the weapon of offence, he prepared the sketch of the knife which is at point X on Ex.PW17/B. According to him St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 12 after examination of weapon of offence he was of the opinion that the injury no.1 mentioned in the Postmortem Report Ex.PW17/A was possible by the weapon of offence produced before him by the Investigating Officer seeking subsequent opinion.

(23) Witness has correctly identified the case property i.e. knife having two single edged blades alongwith a torch having paper slip bearing particular as "Forensic Science Laboratory No. 2012/V 6167, Bio No. 969/12, Exhibit .No.14 dated 20.12.2012" having his signatures on the handle of the knife at point X as same as was examined by him, which knife is Ex.P­2 and the clothes of the deceased as the same as worn by the deceased which clothes are collectively Ex.P­3.

(24) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted and hence his testimony has gone uncontroverted.

(25) PW19 Dr. Neeraj Chaudhary has proved the MLC No. 44656 dated 27.07.2012 in respect of Vinod Kumar Sikri, male aged about 42 years which MLC is Ex.PW19/A according to which the injured Vinod Kumar was brought to the casualty of the hospital and Dr. Deepak Gupta examined the said person and found stab injury of about 4cm x 2cm and about 6 cm in depth. He has further proved that Dr. Deepak Gupta declared the injured as brought dead after which the the dead body of Vinod Kumar Sikri was handed over to the Investigating Officer for taking the same to the mortuary. St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 13

This witness was not cross examined by the Ld. Defence counsel, despite opportunity given.

FSL Expert:

(26) PW11 Dr. Dhruw Sharma Assistant Director (Biology), FSL, Rohini has deposed that on 22.10.2012 thirteen parcels in connection with case FIR No. 187/12 were received in FSL Rohini of which six were sealed plastic containers, five were sealed cloth parcels, one was sealed envelope and one was unsealed bicycle. According to the witness, he examined the exhibits after which he gave the biological examination report which is Ex.PX1 according to which blood was detected on exhibit 1, 2, 3, 5, 6, 7, 8A, 8B, 9A, 9b, 9C, 9d, 9e, 10, 12a, 12b, 13a, 13b and 14. Witness has further proved having given the Serological Report which is Ex.PX2 according to which human blood was deducted on the said exhibits.

According to him the blood group found to be present on Ex.9a, 9b, 9c, 9d and 10 was B group and in so far as exhibit 1, 2, 3, 6, 7, 8a, 8b, 9e, 12a, 12b, 13a, 13b and 14 are concerned there was no reaction in the ABO Group and examination of exhibit 5 showed inclusive grouping. (27) On a specific court question the witness has explained that there can be no reaction in case whether the antigens for blood grouping may be decomposed or missing and in case of inclusive results similar results are not coming which can be due to contamination or St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 14 petrification. Witness has admitted that in his remarks he has not mentioned the reasons why the results were inconclusive or there was no reaction.

(28) This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.

Nodal Officers:

(29) PW10 Sh Israr Babu, Alternate Nodal Officer from Vodafone Mobile Services has proved the Customer Application Form of mobile No. 9711348862 in the name of Seema Sikri which customer application form is Ex.PW10/A; ID proof in the form of election ID card photocopy of which is Ex.PW10/B and call detail of the said mobile number for the period of 01.07.2012 to 28.07.2012 which are Ex.PW10/C (running into four pages).

He has also proved the Customer Application Form of mobile No. 8447556173 in the name of Basanti copy of which customer application form is Ex.PW10/D; ID proof in the form of election ID card photocopy of which is Ex.PW10/E; call detail of the said mobile number for the period of 01.07.2012 to 28.07.2012 which are Ex.PW10/F (running into four pages) and the certificate under Section 65B of Indian Evidence Act in respect of both the mobile numbers which are Ex.PW10/G­1 and Ex.PW10/G­2. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.

St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 15 (30) PW12 Sh. Rajeev Sharda Nodal Officer from Reliance Communication has proved the record pertaining to mobile number 9310762592 and as per the customer application form, the said number is in the name of Vinod Kumar S/o Jagdish Rai, R/o D­14A, Lord Krishna Road, Adarsh Nagar, Delhi. He has placed on record the certified copy of the customer application form which Ex.PW12/A (running into two pages along with the copy of the voter ID card); the call details for the period 01.07.2012 to 27.07.2012 which are Ex.PW12/B (running into six pages) and certificate U/s 65B of Indian Evidence Act which is Ex.PW12/C. (31) In his cross examination by Ld. Defence counsel, witness has admitted that he has not brought the original customer application form and has voluntarily explained that it is not available in their customer support department and appears to have been misplaced. According to him they had made a complaint to their senior officers in respect of the missing document but he is unable to produce any document to show that the senior most officer has been informed about the missing Customer Application Form. Witness has further admitted that if any document is misplaced in the department or is not traceable suitable action is required to be taken. He has denied the suggestion that the customer application form has been deliberately shown as misplaced only to oblige the Investigating Officer.

St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 16 Police/ official witnesses:

(32) PW1 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having prepared the scaled site plan which is Ex.PW1/A. He has been cross­examined by the Ld. Defence Counsel but nothing much has come out of the same. (33) PW2 Ct. Krishan is a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken the rukka to the Police Station for registration of FIR.

(34) In his cross examination by Ld. Defence counsel, witness has deposed that he received rukka at about 12.30AM (midnight) and reached at the police station at about 12.45AM.

(35) PW3 Ct. Parvinder is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having taken the photographs of the scene of crime which photographs are Ex.PW3/A­1 to Ex.PW3/A­18 and negatives of the same are collectively Ex.PW3/B. He has been cross­examined by the Ld. Defence Counsel but nothing much has come out of the same. (36) PW4 SI Ramesh Chand is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 17 Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having inspected the scene of crime and prepared his reported which is Ex.PW4/A. In his cross examination by Ld. Defence counsel, witness has deposed that he had reached at the spot at 11.45PM and he received information of the incident through wireless set. (37) PW5 ASI Baldev Singh is a formal witness being the PCR Van Incharge who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 27.7.2012 at 10:30 PM on received the call he reached the spot and shifted the injured to BJRM Hospital.

(38) PW6 HC Jaipal is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having made the entry in register no.19 at S. No.3325 copy of which is Ex.PW6/A (three pages); entry at S. No.3329 copy of which is Ex.PW6/B (three pages); entry in register no. 21 vide RC No. 108/21/12 copy of which is Ex.PW6/C (two pages) and receipt issued by FSL copy of which is Ex.PW6/D. He has been cross­examined by the Ld. Defence Counsel but nothing much has come out of the same.

(39) PW7 HC Vijay Gill is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein has proved having recorded the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 18 FIR No.187/12 copy of which is Ex.PW7/A and having made his endorsement on rukka which is Ex.PW7/B. (40) In his cross examination by Ld. Defence counsel, witness has deposed that when he received rukka, he was present in the police station as a duty officer and he got whole information in writing and handed over the original rukka to Ct. Amit for the registration of the FIR at 12:55 AM. (41) PW8 Ct. Neeraj is a formal witness being the PCR Official who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein has proved having filled up the PCR form which is Ex.PW8/A. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted.

(42) PW9 Ct. Mahesh is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 28.7.2012 he had delivered the copies of FIR to the Ld. MM, Joint Commissioner of Police, Deputy commissioner of Police and Assistant Commissioner of Police. He has been cross­examined by the Ld. Defence Counsel but nothing much has come out of the same.

(43) PW18 Ct. Mukesh is a chance witness. He has deposed that on 27.07.2012 he was Posted at Police Station Jahangirpuri and on that day he was on patrolling duty in the area of Kushal Cinema/ Adarsh Nagar crossing on his official motorcycle bearing No. DL­1S­N­3986. According to him, at St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 19 about 10:15 PM while he reached near going from Kushal Cinema to Adarsh Nagar crossing and on reaching near the MCD office he saw two boys running who were coming from MCD dumping ground towards Adarsh Nagar crossing. He has testified that he noticed that one of the said boy was Birbal @ Lapeta and the other boy was Vinod @ Nehru (whom the witness has correctly identified in the Court) both of whom were known to him previously because Birbal @ Lapeta was the local criminal of the area of which he was the Beat Constable whereas Vinod who was commonly known as Nehru in the area used to remain in the company of Birbal @ Lapeta and roam around with him. Witness has further deposed that both of them reside in the H­Block jhuggies and both of them appeared to be distorted (ghabray hue). Witness has also deposed that Birbal was wearing a white pant and check shirt, Nehru was wearing a grey pant and a check shirt and he noticed blood on the clothes of both these boys and hence he became suspicion and asked these boys to stop but instead of stopping they started to run towards the H Block jhuggies. According to the witness he followed them to the jhuggies but the motorcycle could not enter inside the jhuggie area therefore he could not enter the H Block Jhuggi Cluster and therefore he returned back to his patrolling and thereafter, after completing his duty he went back to his home.

(44) Witness has further deposed that on 28.07.2012 when he joined his duties at 9:00 AM in the briefing he came to know that there St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 20 was some vardat/ incident at Shah Alam road, Jahangirpuri near the MCD Dumping Ground in the night hours of 27.07.2012 at around 10:00 PM where some cyclist had been stabbed and his mobile phone had been looted/robbed. According to him it was on 29.07.2012 that he informed the Investigating Officer of the case about what he had seen on the night of 27.07.2012.

(45) He has further testified that on 16.08.2012 he again joined the investigations in the present case and on the directions of the Investigating Officer he took two sealed parcels duly seal of the JP from the MHC(M) which he took the BJRM Hospital mortuary and handed over the same to the doctor on duty in the mortuary. According to him doctor opened the same and took out the buttondar knife from the same and after measuring the same the doctor examined the same weapon and again converted the same into pullanda sealed with the same with the seal of the FMT BJRM Hospital, Delhi and handed over the same to him. He has deposed that he took the same to the MHC(M) and handed over the pullandas to him. Witness has proved that till the time the pullandas remained in his possession the same were not tampered and his statement was recorded by the Investigating Officer thereafter.

(46) During his cross examination by Ld. Defence counsel, initially the witness has deposed that he had made his ravangi on 27.07.2012 before leaving for patrolling and also made a wapsi when he returned to the police St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 21 station after patrolling and also did not mention in the wapsi report that he had seen the accused Birbal @ Lapeta and accused Vinod @ Nehru in blood stained clothes and they appeared to be distorted but then again stated that he did not make any wapsi/arrival in the police station and straight away went to his home. The witness has also deposed that in the morning he did not make any entry with regard to the incident nor did he tell the Duty Officer about what he had seen in the area and also did not tell the SHO or any senior officer on that day i.e. 28.07.2012 after the briefing that he had seen the accused along with Birbal @ Lapeta in a distorted condition and both were in blood stained clothes and has voluntarily explained that he informed them on 29.07.2012 in the morning at about 8­8:30 AM. Witness has denied the suggestion that he had not witnessed/seen Birbal and Vinod running in a distorted condition with blood stains on their clothes and it is for this reason he had not made any entry in the any official record nor he informed any senior officer. Witness has denied the suggestion that he was deposing falsely on the instructions and tutoring of his senior police officers only to work out the blind case.

(47) PW20 SI Krishan has deposed that on 28.07.2012 he was posted at Police Station Jahangirpuri and on that day at about 10:35 PM he was present at EE Block Jahangirpuri in front of Police Station Jahangirpuri for another inquiry where he received information from the Duty Officer St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 22 regarding the DD No. 27A that a person was lying in unconscious condition at Mukundpur Red Light. According to the witness he along with Ct. Krishan reached at the spot i.e. Shah Alam Bandh Road, near Mukandpur Red Light, Jahangirpuri where one bicycle, one bag and the blood were found at the spot and he came to know that injured was already taken to the hospital by the PCR. The witness has also deposed that Ct. V. Suresh also reached there and he handed over DD No. 27A to me which is Ex.PW20/A which was received by him and thereafter he along with Ct. Krishan went to BJRM Hospital whereas Ct. V. Suresh was left at the spot. Witness has further deposed that he collected the MLC of injured Vinod Kumar Sikri who was declared brought dead by the doctors. He has proved having prepared a rukka which is Ex.PW20/B and also received personal search articles of the dead body i.e. Leather purse, LIC policy slip and Rs.465/­ and one locket of Sai Baba from the hospital. The witness has testified that he sent Ct. Krishan to Police Station along with the rukka for registration of the FIR. According to him after registration of the FIR investigations were handed over to Insp. J.P. Meena. Witness has also deposed that Ct. Krishan came at the hospital and thereafter he made an application to preserve the dead body copy of which application is Ex.PW20/C and thereafter he handed over the dead body to Ct. Krishan. According to the witness, he met Insp. J.P. Meena at the Shah Alam Bandh i.e. at the spot and handed over the copy of the MLC and personal search articles of the deceased to Insp. J.P. Meena. The witness has proved that the Investigating Officer prepared the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 23 seizure memo of the personal search of the deceased which he handed over to him vide memo Ex.PW20/D. He has also deposed that the Investigating Officer thereafter seized the blood stained cycle vide Ex.PW20/E and also seized the blood stained thaila after converting the same into a pullanda with the help of white cloth and sealed the same with the seal of JP and the seizure memo was prepared which is Ex.PW20/F. Witness has further deposed that Investigating Officer then lifted the blood stained earth with the help of cotton and also the earth control and kept the same in separate container and sealed the same with the seal of JP and prepared the seizure memo Ex.PW20/G. (48) Witness has correctly identified a multicolored blood stained thaila as the same which had been seized by the Investigating Officer at the spot lying near the cycle, which thaila / bag is Ex.P4. It has been observed by this Court that the thaila was having cut at various points containing the blood stains by the FSL. Witness has also correctly identified one cycle make Atlas of black color which was lying at the spot which was seized by the Investigating Officer, which cycle is Ex.P5. (49) In his cross examination by Ld. Defence counsel, witness has deposed that he had received the information around 10:35 PM and at that time he was at EE Block on his private bike and reached the spot within ten minutes and has voluntarily explained that the gali/ streets are very narrow and it took him time to locate the spot. According to the witness he did not St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 24 find any public person at the spot and no body told him that the injured had been taken to the Hospital and has voluntarily explained that he made his own assessment because when he reached the spot, he found a cycle lying there and blood scattered at the spot. He has further deposed that he did not find any public person in the hospital and has voluntarily explained that from the MLC he came to know that it was the PCR officials who had brought the deceased to the hospital. Witness has further deposed that he did not meet any PCR officials and the identity of the deceased came to be known from the personal search of the deceased which had already been conducted by the doctors and has voluntarily explained that from the personal search of injured, one LIC policy paper was found from which the details were obtained. According to the witness he did not inform the family of the deceased and has voluntarily explained that he is not aware who informed the family of the deceased since he immediately prepared the tehrir which was sent to the police station through Ct. Krishan. Witness has also deposed that the family members of the deceased did not reach the hospital in his presence and he did not carry out any investigations at the spot and has voluntarily explained that it was conducted by the subsequent Investigating Officer. Witness has denied the suggestion that all documentations were done while sitting in the police station and he merely signed the same on the asking of the senior officers.

(50) PW21 HC Narender has deposed that on 29.07.2012 he was posted at Police Station Jahangirpuri and on that day he conveyed the secret St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 25 information which he had received on 28.7.2012 to the Investigating Officer Insp. J.P. Meena that two persons who had committed the murder in the night of 27.07.2012, were coming at Delhi Jal Board ground behind Prayas for selling the mobile phones of the deceased. According to him Inspector J.P. Meena formed a raiding party including himself and Ct. Jitender and thereafter they all reached at above said place behind Prayas. He has deposed that on 29.07.2012 at about 9.15AM two persons came there and he apprehended both the persons who disclosed their names as Birbal @ Lapeta and Vinod @ Nehru. According to the witness, he knew Birbal @ Lapeta as he was also arrested earlier and one buttondar knife was recovered from the possession of Birbal @ Lapeta, sketch of the same was prepared by the Investigating Officer who took the measurement of the knife and sealed the same in a cloth pullanda with the seal of JP and the sketch of the knife which is Ex.PW21/A. The witness has proved that the knife was seized vide seizure memo Ex.PW21/B. According to him Birbal @ Lapeta was less then 18 years, so Investigating Officer called the Juvenile Welfare Officer SI Sandeep and mother of Birbal @ Lapeta. He has also deposed that thereafter one mobile of LG model 6210 without SIM and Memory card was recovered from the possession of accused Vinod @ Nehru and the same was covered into a sealed pullanda sealed with the seal of JP and the same seized vide memo Ex.PW21/C. According to him both persons were interrogated by the Investigating Officer and they confessed about their involvement in the murder of deceased in this case. He has testified that meanwhile SI St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 26 Sandeep and mother of Birbal reached there after which Birbal was taken into custody vide Ex.PW21/D, his personal search was conducted vide Ex.PW21/E and his version was also recorded vide Ex.PW21/F. Witness has further proved that clothes of Birbal i.e. White pant and checkdar shirt were also sealed in a cloth pullanda by the Investigating Officer with the seal of JP and were seized vide memo Ex.PW21/G. According to him the accused Vinod was also arrested vide memo Ex.PW21/H, his personal search was taken vide Ex.PW21/I and his disclosure statement was recorded vide Ex.PW21/J. He has proved that the clothes of accused Vinod i.e. Pant of grey colour and checkdar shirt were also kept in a cloth pullanda sealed with the seal of JP and seized the same vide memo Ex.PW21/K. According to the witness both the accused pointed out the place of incident and accused Vinod pointed out the place of incident vide Ex.PW21/L and Juvenile Birbal@ Lapeta pointed out the place of incident vide Ex.PW21/M. He has deposed that thereafter the seized articles were deposited in the malkhana of the Police Station by the Investigating Officer and accused Vinod was produced before the Court and was sent to Judicial Custody whereas Juvenile Birbal was sent to Observation Home.

(51) He has correctly identified the accused Vinod @ Nehru in the Court and also identified the case property i.e. one mobile phone of brown colour LG 6210 bearing IMEI No. A0000021B21B22 made in China as the same which was recovered from the possession of accused Vinod @ Nehru, St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 27 which mobile is Ex.P­1; one buttondar knife with two edged blades alongwith a torch as the same as recovered from the possession of Juvenile Birbal @ Lapeta which knife is Ex.P­2; one pant of white colour & one checkdar shirt as recovered from the possession of juvenile Birbal @ Lapeta @ Pappu which Pant is Ex.P­6 and shirt is Ex.P­7; one pant of grey colour and one checkdar shirt as recovered from the possession of accused Vinod @ Nehru which Pant is Ex.P­8 and the shirt is Ex.P­9.

(52) In his cross examination by Ld. Defence counsel, the witness has deposed that the secret information was received by him on 29.07.2012 at about 7.30 AM but he did not incorporate the secret information in writing while leaving the Police Station and has voluntarily explained that he only orally informed the Investigating Officer Inspector JP Meena about the same. According to the witness he had made a ravangi while leaving the Police Station but he does not remember the number of the same. He has further deposed that they reached at the spot in the private vehicle of Inspector J.P. Meena and the secret informer did not accompany them to the spot. The witness has also deposed that he is just aware that Birbal @ Lapeta was involved in another case previously but he is unable to tell the details of the same and he also unable to tell how many days before this incident, he was arrested in the other case and has voluntarily explained that it must be about two to four months prior to this incident but he is not sure. According to the witness, he is posted in this police station since the year 2008 and did not join the investigations in the earlier case in which Birbal St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 28 was involved. He has testified that he had taken the search of Birbal in this case and before taking his search he did not offer his search to him. Witness has further deposed that the knife was sealed after about 15 minutes of arrest of Juvenile Birbal and the khaka of the knife was prepared before his arrest. He has deposed that the accused Vinod Nehru was searched by Ct. Jitender. He is not aware if the Investigating Officer was having any documentary proof regarding the ownership of mobile phone or not. Witness has admitted that mobile phones similar to the recovered mobile are available in the market and has voluntarily explained that they are having separate IMEI number. According to him no specific mark was put by the Investigating Officer on the mobile phone except sealing the same. He has testified that it took about one or one and a half hour in sealing the seized articles. Witness has further deposed that the seal after use was handed over to him and he handed over the seal to the Investigating Officer after the accused persons were sent to judicial custody. He has further deposed that no family member of accused Vinod reached at the house and has voluntarily explained that the information regarding arrest of Vinod was given to his father. Witness has admitted that mother of Birbal was present at the time of sealing and seizing of the mobile phone. He has also admitted that mother of Birbal was present at the time of recording of disclosure statement of accused Vinod @ Nehru. According to the witness signatures of mother of Birbal were taken on the version of Juvenile Birbal and the sealed clothes were worn by both the accused person at the time when the same were taken into possession St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 29 and their clothes were got changed at the spot. Witness has further deposed that the mother of Birbal went to the house of both the accused persons at about 10.30AM and brought clothes for change and she came back at the spot at bout 11.15AM. According to the witness nobody from the house of Vinod @ Nehru came at the spot with mother of Birbal and she went alone to get the clothes. He has further testified that the mother of Birbal was present at the time of preparation of pointing out memo Ex.PW21/L and Ex.PW21/M. He does not remember if thumb impression of mother of accused Birbal were taken on pointing out memos Ex.PW21/L and Ex.PW21/M or not. According to the witness they remained at the spot for about four hours. He is not aware whether the TIP of the mobile phone was got conducted by the Investigating Officer or not and nobody from the house of deceased was called at the spot in his presence.

(53) PW22 Ct. V. Suresh has deposed that on 27.07.2012 he was posted at Police Station Jahangirpuri and on that day at around 10:35 PM the Duty Officer handed over to him DD No. 27A and asked him to reach Shah Alam Bandh Road. According to the witness, he reached the said area where he met SI Krishan and handed over to him DD No. 27A. Witness has further deposed that a cycle was lying at the spot along with the bag and a lot of blood was lying at the spot. He has testified that SI Krishan directed him to remained at the spot to preserve the spot of the incident and he himself had gone to BJRM Hospital. The witness has further deposed that at around 11:40 PM the Crime Team came to the spot along with the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 30 photographer and inspected the spot of the incident and also took photographs of the same and he informed the incharge crime team about the name of the Investigating Officer. Witness has further deposed that after inspecting the scene of crime, the members of the scene of crime team left the spot as they had received another call and at around 1:45 AM the Investigating Officer reached the spot and prepared the site plan on his pointing out. According to the witness after sometime SI Krishan also returned to the spot and handed over the copy of the MLC and the jamatalashi papers of the deceased to the Investigating Officer along with the seizure memo and he signed the said seizure memo which is Ex.PW20/D. Witness has further deposed that the Investigating Officer thereafter seized the blood stained cycle, the blood stained thela along with the contents vide memos which are Ex.PW20/E and Ex.PW20/F and the blood stained earth and the earth control which he kept in various containers and sealed the same with the seal of JP and seized the same vide memo Ex.PW20/G. According to the witness thereafter all the exhibits were put in the official vehicle and taken to the police station where they were deposited in the malkhana and Investigating Officer recorded his statement. Witness has further deposed that on 22.08.2012 on the directions of the Investigating Officer he took the 12 sealed pullandas containing the exhibits and one cycle to the FSL Rohini vide RC No. 108/21/12 dated 22.08.2012 which he deposited at the FSL Rohini and thereafter returned to the police station and handed over the copy of the RC and the FSL Receipt vide No. 2012/B­6167 St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 31 dated 22.08.2012 which is Ex.PW6/C (running into two pages). According to him till the time the exhibits remained in his possession the same were not tampered.

(54) Witness has correctly identified the case property i.e. multicolored blood stained thaila as the same as the one which had been seized by the Investigating Officer at the spot lying near the cycle which is Ex.P4 and one cycle make Atlas of black color as the one as lying at the spot which was seized by the Investigating Officer which is Ex.P5. (55) During his cross examination by Ld. Defence counsel, witness has deposed that after receiving the DD he went to the spot on foot and at that time there were no person standing at the spot except SI Krishan and has voluntarily explained that there were some persons passing by that area but no body stood there. According to him in his presence the Investigating Officer did not ask any public person as to what happened to the injured. He has deposed that SI Krishan left the spot after 10­15 minutes of his reaching there. Witness has denied the suggestion that the scene of crime was disturbed when he reached there and has voluntarily explained that SI Krishan and Ct. Krishan had already preserved the scene of crime by putting a yellow tape on the same. He has further deposed that the crime team remained at the spot till about 12:45 AM (midnight). Witness has admitted that the Crime Team Incharge did not hand over any report to him and has voluntarily explained that the Incharge had said that he would hand over the report to the Investigating Officer later on. According to him SI Krishan St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 32 reached after 10­15 minutes of the Investigating Officer reaching the spot i.e. around 2:00 AM (midnight). Witness has admitted that the personal search of the deceased was not handed over to SI Krishan by the doctor in his presence and has voluntarily explained that SI Krishan only handed over the MLC and the jamatalshi which were given to him by the doctor to the Investigating Officer. According to the witness the seal of JP after use was handed over to him and he did not hand over the seal back to the Investigating Officer and has voluntarily explained that the seal remained with him which he handed over the same to the MHC(M) along with the seized articles. Witness has further deposed that he had told the Investigating Officer while recording his statement that the seal after use was handed over to him. Witness has admitted that the place where the incident had taken place was totally dark and has voluntarily explained that it was with the help of the torch carried by the Investigating Officer and with the help of the light of the motorcycle that they could see the spot of the incident. He has denied the suggestion that no document was prepared at the spot or that all documents were prepared while sitting in the police station much later.

(56) PW23 SI Sandeep Kumar has deposed that on 29.07.2012 he was posted at Police Station Jahangirpuri being Juvenile Welfare Officer and on that day at 10:00 AM he was informed by the duty officer that Insp. J.P. Meena apprehended one juvenile behind Paryas, Near Delhi Jal Board ground. According to the witness he immediately reached there and St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 33 Juvenile Birbal @ Pappu @ Lapeta was found present with Insp. J.P. Meena and thereafter he was taken in custody by Insp. J.P. Meena vide Ex.PW21/D and his personal search was taken vide Ex.PW21/E. Witness has further deposed that the blood stained clothes i.e. pant of white color and shirt checkdar of the Juvenile were taken into possession by the Investigating Officer and sealed the same in a cloth pullanda with the seal of JP and seized the same vide seizure memo Ex.PW21/G. The witness has also deposed that Juvenile Birbal also pointed out the place of incident at Shah Alam Road near MCD dumping ground, Jahangirpuri on which the Investigating Officer prepared the pointing out memo which is Ex.PW21/M. Witness has further deposed that mother of the juvenile also reached at the spot and Investigating Officer produced the juvenile Birbal before the member of the Juvenile Justice Board at his house and thereafter he was sent to observation home. Witness has correctly identified the clothes i.e. white pant and checkdar shirt as the same recovered from the possession of Juvenile Birbal @ Pappu @ Lapeta which pant is Ex.P6 and shirt is Ex.P7. This witness was not cross examined by Ld. Defence Counsel, despite opportunity given.

(57) PW24 Inspector J.P. Meena is the Investigating Officer of the present case who has deposed that on 27.07.2012 he was posted at Police Station Jahangirpuri as Inspector Investigations and on that day after registration of the FIR No. 187/12 investigations were handed over to him and he received the copy of the FIR and the rukka through Ct. Krishan at the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 34 police station at about 1:30 AM (midnight) on 28.07.2012. According to the witness he reached at the spot at Shah Alam Bandh Road, near MCD Dumping Ground where Ct. V. Suresh met him and he found one blood stained cycle, one bag on the handle of the bicycle and lot of blood on the ground near the bicycle and he also found blood at a some distance from the cycle on the road. He has proved having prepared the site plan at the instance of Ct. V. Suresh which is Ex.PW24/A and in the meanwhile SI Krishan reached the spot and handed over the MLC of the deceased Vinod Kumar Sikri to him and also produced the personal search articles of the deceased to him i.e. Rs 465/­, a purse of black color and one slip of LIC policy in the name of Vinod Kumar Sikri and one yellow color locket of Sai Baba. He has also deposed that he seized these articles vide seizure memo Ex.PW20/D and he seized the blood stained cycle vide seizure memo Ex.PW20/E. According to the witness four plastic containers and one empty bottle of pepsi was found in the bag and he sealed the bag with the above said containers and bottle in a cloth pullanda with the help of JP and seized the same vide seizure memo Ex.PW20/F. Witness has further deposed that he lifted blood near the cycle with the help of cotton and kept the same in a plastic container and sealed the same with the seal of JP and he also lifted blood stained earth after scratching it from the same place and kept the same in the plastic container and sealed the same with the seal of JP. The witness has also deposed that he also lifted earth control from the same place and kept the same in a plastic container and sealed the same with St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 35 the seal of JP. According to the witness, he gave the serial numbers 2A, 2B and 2C to these pullandas and lifted blood at some distance from the cycle with the help of cotton and kept the same in a plastic container and sealed the same with the seal of JP and also lifted blood stained earth after scratching it from the said place and kept the same in the plastic container and sealed the same with the seal of JP. The witness has proved that he also lifted earth control from the said place and kept the same in a plastic container and sealed the same with the seal of JP and he gave the serial numbers 3A, 3B and 3C to these pullandas and he seized all these pullandas vide seizure memo Ex.PW20/G. He has also deposed that he handed over the seal to Ct. V. Suresh after use. According to him the crime team officials has already inspected the scene of crime and took photographs and thereafter they all returned back to the police station where he deposited the seized articles in the malkhana and he recorded the statements of the witnesses.

(58) He has further deposed that in the morning time at about 9:15 AM he reached at BJRM Hospital Mortuary where Ct. Krishan met him along with the dead body of Vinod Kumar Sikri. The witness has proved having recorded the statement of Madan Gopal and Daljeet Kumar Sikri vide Ex.PW15/A and Ex.PW16/B respectively. According to the witness, he filled the inquest form which is Ex.PW24/B, prepared the brief facts which are Ex.PW24/C and made request for the postmortem vide Ex.PW24/D. Witness has further deposed that after postmortem dead body St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 36 was handed over to the relatives of the deceased vide Ex.PW15/B and after postmortem Ct. Krishan handed over postmortem report to him with inquest papers. According to the witness Ct. Krishan also handed over one packet containing the clothes of the deceased and blood sample in gauze piece of the deceased in sealed condition with the seal of FMT BJRM Hospital Delhi with sample seal to him and he seized the same vide seizure memo Ex.PW24/E. He has testified that he deposited the seized articles in the malkhana and recorded the statements of witnesses. Witness has further deposed that on 28.07.2012 HC Narender informed him that he received secret information about the assailants of this case and on his directions he developed further information in this regard. He has also deposed that on 29.07.2012 HC Narender met him at about 8AM and informed him that he has information regarding the two assailants who committed the murder of the cyclist on 27.07.2012 that they were going to flee away after selling the mobile phone of the deceased behind the Paryas, near Delhi Jal Board Ground. According to the witness, he also disclosed the name of the one of the assailants as Birbal @ Lapeta on which he along with HC Narender and Ct. Jitender went to the above said place and in the meanwhile Ct. Mukesh met him who told him that he had seen Birbal @ Lapeta and Vinod @ Nehru with blood stained clothes at about 10:15 PM on 27.07.2012 at Adarsh Nagar crossing coming from the MCD dumping ground, Jahangirpuri and when he tried to stop them but they ran away and he could not apprehend them as they entered in the dense jhuggies. He has testified that he recorded St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 37 the statement of Ct. Mukesh and thereafter he along with HC Narender and Ct. Jitender went to the above said place behind Paryas and on the way they asked three­four public persons to join the proceedings but none agreed and left the place without disclosing their names and addresses on one pretext or other. Witness has further deposed that at about 9:15 AM they apprehended Birbal @ Lapeta @ Pappu and Vinod @ Nehru behind the Prayas and HC Narender knew Birbal @ Lapeta as he was also arrested earlier. According to the witness one buttondar knife with two blades and one torch on it at the mid portion was recovered from the possession of Birbal @ Lapeta, sketch of the same was prepared by him and he took the measurement of the knife and sealed the same in a cloth pullanda with the seal of JP. He has testified that he prepared the sketch of the knife which is Ex.PW21/A and the knife pullanda was seized vide seizure memo Ex.PW21/B. Witness has further deposed that Birbal @ Lapeta was less then 18 years and hence he called the Juvenile Welfare Officer SI Sandeep from Police Station and mother of Birbal @ Lapeta. He has proved that one mobile phone of LG model 6210 without any SIM and memory card was recovered from the possession of accused Vinod @ Nehru, which mobile phone was sealed with the help of cloth pullanda sealed with the seal of JP and the same was seized vide memo Ex.PW21/C. Witness has further deposed that both persons were interrogated by him and they confessed about their involvement in the murder of deceased in this case and meanwhile SI Sandeep and mother of Birbal reached there after which Birbal was taken into custody vide St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 38 Ex.PW21/D, his personal search was conducted vide Ex.PW21/E after which the version of Birbal was also recorded vide Ex.PW21/F and mother of Juvenile Birbal put her thumb impressions on all the documents. He has testified that clothes of Birbal i.e. white pant and checkdar shirt were also sealed in a cloth pullanda by him with the seal of JP and were seized vide memo Ex.PW21/G and mother of the accused put her thumb impressions. Witness has further deposed that accused Vinod was arrested vide memo Ex.PW21/H, his personal search was taken vide Ex.PW21/I and his disclosure statement was recorded vide Ex.PW21/J. According to the witness the clothes of accused Vinod i.e. pant of grey colour and checkdar shirt were also kept in a cloth pullanda sealed with the seal of JP and seized the same vide memo Ex.PW21/K. He has proved that both the accused pointed out the place of incident and accused Vinod pointed out the place of incident vide Ex.PW21/L whereas Juvenile Birbal@ Lapeta pointed out the place of incident vide Ex.PW21/M. He has testified that he deposited the seized articles in the malkhana of the Police Station by him and recorded the statements of witness. Witness has further deposed that accused Vinod was produced before the Court and was sent to Judicial Custody whereas the Juvenile Birbal was sent to Observation Home. The witness has proved having collected the receipt of the mobile phone of the deceased from his wife and seized the same vide seizure memo Ex.PW13/A and the original receipt which is Ex.PW13/B. Witness has also deposed that he collected the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 39 call details with locations of the mobile phone of deceased and his wife Seema Sikri and the mobile phone of juvenile Birbal @ Lapeta which was in the name of his mother Basanti and also collected the certificate U/s 65 B of Indian Evidence act which are Ex.PW24/F­1 to Ex.PW24/F­17. He has also deposed that he obtained the subsequent opinion of the Autopsy Surgeon about the weapon of offence which is Ex.PW17/B and collected the PCR form, Crime team report, photographs and the Duty Roaster of the PCR officials and also got prepared the scaled site plan. He has testified that he recorded the statements of witnesses and after completion of investigations he submitted the charge sheet against the accused Vinod @ Nehru. According to the witness he also submitted charge sheet against juvenile Birbal @ Pappu @ Lapeta before the Juvenile Justice Board and collected the FSL results and submitted the supplementary charge sheet against the accused Vinod.

(59) He has correctly identified the accused Vinod @ Nehru in the Court and also correctly identified the case property i.e. one mobile phone of brown colour LG 6210 bearing IMEI No. A0000021B21B22 made in China as the same which was recovered from the possession of accused Vinod @ Nehru which mobile is Ex.P­1; one buttondar knife with two edged blades alongwith a torch as the same as recovered from the possession of Juvenile Birbal @ Lapeta which knife is Ex.P­2; a multicolored blood stained thaila as the same which had been seized by him at the spot lying near the cycle which is Ex.P4; one cycle make Atlas of black color which St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 40 lying at the spot which was seized by him which is Ex.P5; one pant of white colour and one checkdar shirt which was recovered from the possession of juvenile Birbal @ Lapeta @ Pappu which pant is Ex.P­6 and shirt is Ex.P­7; one pant of grey colour and one checkdar shirt as recovered from the possession of accused Vinod @ Nehru which pant is Ex.P­8 and the shirt is Ex.P­9.

(60) In his cross examination by Ld. Defence counsel, witness has deposed that he did not made any separate DD when he went to the spot after receiving the copy of FIR and original rukka. According to the witness, he reached the spot alone by his vehicle and no public person was found at the spot and has voluntarily explained that Ct. V. Suresh met him at the spot. According to the witness some persons who were passer­byes passed through the area but he did not stop any one of them to make inquiries and has voluntarily explained that there were all on their vehicles and were not relevant. He has admitted that the incident took place at night and it was dark and has voluntarily explained that there was sufficient street light. According to the witness he has shown the pole in the site plan. Witness has denied the suggestion that it was total darkness at the spot of the incident there being no electricity pole or street light. Witness has further deposed that he did not obtain the initials of Ct. V. Suresh on the site plan and SI Krishan reached the spot after 10­15 minutes of his reaching there. He is unable to tell the denominations of the currency notes recovered from the personal search of the deceased. He has deposed that the details of the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 41 deceased came to be known from his LIC policy which was in his pocket which details were then conveyed to the police station from where information was sent to his family. According to the witness, he personally did not inform the family of the deceased about the incident and has voluntarily explained that it was the Duty Officer who had informed the family of the deceased. He has also deposed that he remained at the spot till about 6:00 AM in the morning and did not meet any family member of the deceased during this period. Witness has admitted that the personal search articles of the deceased were not handed over to SI Krishan in his presence. He has also deposed that the secret information was not given to him in writing by HC Narender. The witness has further deposed that he informed about the secret information to SHO of Police Station Jahangirpuri and they reached at behind the Prayas on his vehicle i.e. Santro car. He has testified that he had asked some public witnesses to join the proceedings but he is unable to tell the names and addresses of the persons who had refused. He has also deposed that he did not gave any notice to the said public persons who had refused to join the proceedings. He has denied the suggestion that he deliberately did not join any public witnesses despite opportunity because the accused Vinod @ Nehru was lifted from his house and falsely implicated in the present case. According to the witness he is not aware of any previous involvement of Vinod @ Nehru. Witness has further deposed that Ct. Mukesh met him at police station Jahangirpuri at about 8:30 AM on 29.07.2012 when they were going towards the Prayas. He is not aware about St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 42 the other cases against Birbal @ Pappu @ Lapeta. He has testified that he did not call any officials from Prayas to join the investigations. The witness has further deposed that SI Sandeep came at the spot after 30­45 minutes of the apprehension of the above said persons Vinod and Birbal. He has also deposed that mother of the Birbal reached at the spot when they prepared the seizure memo of the mobile phone recovered from the possession of accused Vinod @ Nehru and has voluntarily explained that they conducted the proceedings separately in respect of the adult accused Vinod and in respect of the juvenile Birbal @ Lapeta. According to the witness he did not obtain the signatures of the mother of the Birbal on the seizure memo of the mobile phone recovered from the accused Vinod nor on the disclosure statement of the accused Vinod. Witness has also deposed that father of Vinod was informed about the arrest of accused Vinod through mother of the Birbal but father of Vinod did not reach the spot with mother of Birbal and has voluntarily explained that father of Vinod met them when they were going for pointing out at the instance of accused Vinod. The witness has further deposed that he did not obtain the signatures of father of Vinod on the pointing out memo prepared at the instance of accused Vinod and has voluntarily explained that at that time he had already left the place. According to the witness no other person came at the spot along with mother of Birbal and it was mother of Birbal who went to her house to bring the clothes for both the persons. He has testified that mother of Birbal took about 45­50 minutes on foot. Witness has further deposed that he did not St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 43 inform family members of the deceased on 29.07.2012 when he was going to conduct a raid about arrest of the accused persons.

(61) He has denied the suggestion that accused Vinod was lifted from his house or that falsely implicated in this case or that nothing was recovered from the possession of accused Vinod and mobile and clothes were falsely planted upon him. Witness has denied the suggestion that no knife or clothes were recovered from the possession of the Birbal or that he did not conduct the investigations fairly or that he has wrongly charge sheeted the accused persons.

STATEMENT OF THE ACCUSED / DEFENCE EVIDENCE:

(62) After completion of prosecution evidence the statement of the accused Vinod @ Nehru was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him which he has denied. He has stated that he is innocent and was lifted by the police from his house and falsely implicated in this case. He has stated that his signatures were obtained by the Investigating Officer on blank papers which later later on converted into various memos including his disclosure statement. However, the accused has preferred not to examine any witness in his defence.

FINDINGS:

(63) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus Curiae for the accused. I have also gone through the written memorandum of arguments filed on behalf of St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 44 the accused and the material on record. My findings are as under:

Medical Evidence:

(64) Dr. Neeraj Chaudhary (PW19) has proved the MLC of the deceased Vinod Kumar Sikri which is Ex.PW19/A according to which the injured Vinod Kumar was brought to the casualty of the hospital and Dr. Deepak Gupta examined him and found a stab injury of about 4 cm x 2 cm and about 6 cm in depth. He has further proved that Dr. Deepak Gupta declared the injured as brought dead after which the the dead body of Vinod Kumar Sikri was handed over to the Investigating Officer for taking the same to the mortuary.

(65) Dr. Bhim Singh (PW17) has proved the postmortem report of the deceased which is Ex.PW17/A according to which there was one incised stab wound 3 cm x 1 cm into chest cavity deep, right side of chest, just lateral to mid­line, in fourth inter­coastal space, obliquely placed, lower outer angle obtuse, inner upper angle was acute. He has further proved that on internal witness chest cavity shows cut in fourth inter­coastal space, cutting the skin, muscles, enters into right side chest cavity cutting the medial part of right lung upper lobe, enters into left side of chest by cutting the aorta, posterior aspect, i.e. 0.7cm through and through, enters into upper part of left lung, direction of bone towards right to left, slightly upwards, depth approximately 13 cm, chest cavity full of clotted and fluid blood about two liters. He has proved having opined that the death was due to St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 45 haemorrhagic shock consequent upon stab injury via injury no.1 which was antemortem in nature, fresh in duration, caused by simple sharp edged weapon like knife and was sufficient to cause death in ordinary course of nature. Dr. Bhim Singh has further proved that time since death was about 12 hours. The Autopsy Surgeon Dr. Bhim Singh has also proved the subsequent opinion on the weapon of offence i.e. knife (which was recovered from the possession of the juvenile accused - Birbal @ Lapeta) on the application of the Investigating Officer and has proved that the knife was having two single edged blades. He has proved that after examination he was of the opinion that the injury no.1 mentioned in Postmortem Report Ex.PW17/A was possible by the weapon of offence Ex.P­2. (66) In view of the above, I hereby hold that the cause of death is compatible to the stabbing of the deceased but I may note that the said weapon of offence was recovered from the possession of the juvenile accused Birbal @ Lapeta and not the present accused Vinod @ Nehru.

Forensic Evidence:

(67) The accused has not disputed the biological and serological examination reports in respect of the exhibits which reports are Ex.PX1 & Ex.PX2. Even otherwise, Dr. Dhruw Sharma (PW11) Assistant Director (Biology), FSL, Rohini has proved the the biological examination report in respect of the exhibits which is Ex.PX1 according to which blood was St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 46 detected on exhibit 1 (bicycle), 2 (blood stained cotton), 3 (concrete/ road material), 5 (Blood stained cotton), 6 (concrete/ road material), 7 (earthy material), 8a (carry bag), 8b (plastic container), 9a (pant with belt), 9b (T­shirt), 9c (Banian), 9d (underwear), 9e (pair of sandle) -

[belonging to the deceased], 10 (blood stained gauze), 12a (pant), 12b (one shirt) - [belonging to juvenile Birbal @ Lapeta], 13a (pant),13b (shirt)­[belonging to accused Vinod @ Nehru] and Ex.14 (knife). Dr. Dhruw Sharma has also proved the Serological Report which is Ex.PX2 according to which human blood of 'B' Group was found on Ex.9a,9b,9c,9d and Ex.10 and in so far as exhibit 1,2,3,6,7,8a,8b,9e,12a,12b,13a,13b and 14 are concerned there was no reaction in the ABO Group and examination of exhibit 5 showed inclusive grouping.

(68) It is evident from the above that the blood group of the deceased was 'B' Group and the clothes belonging to the accused Vinod @ Nehru only showed the presence of Human Blood but not ABO grouping reaction. Further, the knife recovered from the possession of juvenile Birbal @ Lapeta also showed the presence of human blood (with which recovery the accused Vinod @ Nehru has nothing to do). Therefore, I hereby hold that the forensic evidence does not conclusively connect the accused Vinod @ Nehru with the alleged offence of stabbing the deceased.

St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 47 Electronic Evidence:

(69) The case of the prosecution is that on the date of incident i.e. 27.7.2012 after the deceased Vinod Kumar Sikri left his shop and reached near MCD dumping ground, Shah Alam Bandh Road, Jahangir Puri he had last spoken to his wife on telephone and informed her that he was on the way and would be shortly reached and thereafter the alleged incident had taken place wherein his mobile phone make LG 6210 bearing IMEI No. A0000021B21B22 (which mobile is Ex.P­1) was robbed and it is this mobile which was found in possession of the accused Vinod @ Nehru which possession he has not been able to explain.

(70) Sh. Israr Babu (PW10) has proved the Customer Application Form of mobile No. 9711348862 which in the name of Seema Sikri which customer application form is Ex.PW10/A; ID proof in the form of election ID card photocopy of which is Ex.PW10/B and call detail of the said mobile number for the period of 01.07.2012 to 28.07.2012 which are Ex.PW10/C (running into four pages). He has also proved the Customer Application Form of mobile No. 8447556173 in the name of Basanti copy of which customer application form is Ex.PW10/D; ID proof in the form of election ID card photocopy of which is Ex.PW10/E; call detail of the said mobile number for the period of 01.07.2012 to 28.07.2012 which are Ex.PW10/F (running into four pages).

St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 48 (71) Sh. Rajeev Sharda (PW12) has proved the copy of customer application form in respect of mobile No.9310762592 which is in the name of Vinod Kumar S/o Jagdish Rai, R/o D­14A, Lord Krishna Road, Adarsh Nagar, Delhi which is Ex.PW12/A and the call details for the period 01.07.2012 to 27.07.2012 which are Ex.PW12/B. The original customer Application Form has not been produced and is reported to be missing. (72) I have perused the call details record in respect of the above mobile numbers and I may observe that the last call received by the deceased Vinod Kumar Sikri on his mobile phone i.e. 9310762592 was from his wife Mrs. Seema Sikri (PW13) who was using the mobile No. 9711348862. The said call was received by the deceased at 20:41:11 (i.e. 8:41 PM) while he was present in the area of Indira Vikas Colony, Nirankari Colny after which the mobile was found switched off which fact finds due corroboration not only from the testimony of Seema Sikri (PW13) but also from the electronic evidence on record.

Ocular Evidence / Statement of Ct. Mukesh (chance Witness) is not trustworthy:

(73) Ocular evidence/ eye witness count is the best evidence in any case. Unfortunately in the present case there is no eye witness and the only witness sought to be relied upon by the prosecution is the chance witness Ct.

Mukesh (PW18) the Beat Constable of the area according to whom on 27.7.2012 at about 10:15 PM he was patrolling in the area of Kaushal St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 49 Cinema / Adarsh Nagar and while he reached near the MCD Office he had seen the accused Vinod @ Nehru along with juvenile Birbal @ Lapeta in a distorted condition with blood stains on their clothes on which he suspected but soon thereafter the accused went away. Interestingly this witness Ct. Mukesh (PW18) does not mention this fact in the Daily Diary / Roznamcha nor brings the same to the notice of his senior officers including the SHO and it is for the first time after two days i.e. on 29.7.2012 that he alleged brought this fact to the notice of the Investigating Officer. The relevant portion of Ct. Mukesh (PW18) is as under:

"......... On 27.07.2012 I was posted at police station Jahangirpuri. On that day I was on patrolling duty in the area of Kushal Cinema/ Adarsh Nagar crossing on my official motorcycle bearing No. DL1S­N­3986. At about 10:15 PM while I reached near going from Kushal Cinema to Adarsh Nagar crossing and on reaching near the MCD office I saw two boys running who were coming from MCD dumping ground towards Adarsh Nagar crossing. I noticed that one of the said boy was Birbal @ Lapeta and the other boy was Vinod @ Nehru(present in the court and correctly identified by the witness) both of whom I had known previously because Birbal @ Lapeta was the local criminal of the area of which I was the beat constable and Vinod who was commonly known as Nehru in the area used to remain in the company of Birbal @ Lapeta and roam around with him. Both of them reside in the H Block jhuggies. Both of them appeared to be distorted (ghabray hue). Birbal was wearing a white pant and check shirt, Nehru was wearing a grey pant and a check shirt. I noticed blood St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 50 on the clothes of both these boys. Hence I became suspicion and asked these boys to stopped but instead of stopping they started to run towards the H block jhuggies. I followed them to the jhuggies but the motorcycle could not enter inside the jhuggie area therefore I could not enter the H Block jhuggie cluster and hence I returned back to my patrolling. Thereafter, after completing my duty I went back to my home.

On 28.07.2012 when I joined my duties at 9AM in the briefing I came to know that there was some vardat/incident at Shah Alam road, Jahangirpuri near the MCD Dumping ground in the night hours of 27.07.2012 at around 10 PM where some cyclist had been stabbed and that his mobile phone had been looted/robbed. It was on 29.07.2012 that I informed the IO of the case about what I had seen on the night of 27.07.2012......"

(74) It is writ large from the above that the possibility of Ct. Mukesh being a planted witness cannot be ruled out Firstly for the reason that his Duty Roaster showing that he was on Patrolling Duty or was on Beat Duty has not been placed on record.

(75) Secondly he admits that on seeing the distorted condition and blood stains on the clothes of the accused persons he did not go to the Police Station or informed the Duty Office or even the SHO about the same nor he made any entry in his Roznamcha regarding this fact. This behaviour and conduct of Ct. Mukesh is not natural and probable. Being a responsible police officer and Beat Officer, I am sure if he had seen the accused Vinod St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 51 @ Nehru in distorted condition with blood stains on his clothes, he would have certain informed his senior officers, which he has not done. (76) Thirdly even on the next day i.e. 28.7.2012 Ct. Mukesh did not inform either the Duty Officer or the SHO during the morning briefing or mention this fact in the Roznamcha entry for the day or even during the evening briefing about seeing the accused Vinod @ Nehru in a distorted condition with blood stained clothes which is despite the fact that murder of the victim had taken place in an area which fell under his beat duty which conduct of the witness Ct. Mukesh does not appear to be probable or natural.

(77) Lastly it is for the first time on 29.7.2012 at about 8:00­8:30 AM that Ct. Mukesh informed the SHO that he had seen the accused Vinod @ Nehru on the night of 27.7.2012 in a distorted condition, which fact again does not find any mention in any of the official document maintained in the Police Station in ordinary course of nature. Vinod @ Nehru appears to be having no previous criminal record that it would have recognized or identified him.

(78) Hence, it is writ large that the testimony of this witness Ct. Mukesh (PW18) is not credible, probable and truthful and it is not safe to rely upon the same with corroboration from any independent source which unfortunately in the present case is not forthcoming. St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 52 Recovery of the stolen mobile phone from the possession of accused Vinod @ Nehru:

(79) The case of the prosecution is that a secret information was received that the assailants who had committed the murder of deceased Vinod Sikri were were attempting to sell the stolen mobile phone in the area behind the office of NGO Prayas. Pursuant to the same on 29.7.2012 Investigating Officer Inspector J.P. Meena along with other members of the police reached the said spot where both the accused i.e. Birbal @ Lapeta (Juvenile) and Vinod @ Nehru were apprehended at about 9:15 AM out of whom Birbal @ Lapeta (Juvenile) was known to them as he was a habitual offender of the area. From his search a buttondar knife was recovered and from the search of the present accused Vinod @ Nehru a mobile phone make LG­6210 having IMEI No. A0000021B21B22 but there was no SIM or memory card in the same after which the said mobile was seized vide memo Ex.PW21/C and during interrogation the accused Vinod @ Nehru confessed about his involvement in the present case. Further, the clothes which the accused Vinod @ Nehru was wearing were also taken in to possession since they were having blood stains and therefore the said clothes were seized vide memo Ex.PW21/K. (80) Ld. Addl. PP for the State has vehemently argued that the factum of recovery of the mobile phone of the deceased from the possession of the accused Vinod is a strong pointer towards his guilt whereas on the other hand it is argued by the Ld. Amicus Curiae that the disclosure St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 53 statement of the accused is hit by the provisions of Section 27 of Evidence Act and cannot be read against him. Further, in so far as the recovery of the mobile phone is concerned no public witness had been joined at the time of conducting the search of the accused and it is writ large that the same has been planted upon him only to work out the blind murder case. (81) I have considered the rival contentions. I may observe that in so far as the disclosure statement of the accused Vinod @ Nehru is concerned the same being hit by the provisions of Section 27 of Evidence Act is inadmissible in evidence there being no discovery of fact pursuant to the said statement. In so far as the recovery of the stolen mobile phone make LG ­ 6210 belonging to the victim/ deceased from the personal search of the accused Vinod @ Nehru is concerned. I may observe Firstly that the wife of the deceased namely Smt. Seema Sikri (PW13) has proved the handing over of the bill of the mobile phone which is Ex.PW13/B to the police. The said bill conclusively establishes that the mobile phone make LG­6210 bearing IMEI No. A0000021B21B22 (Ex.P­1) of brown and black colour had been purchased by the deceased and belonging to him. (82) Secondly it further stands established from the electronic evidence on record that the deceased Vinod Sikri was using the SIM No. 9310762592 on the said mobile set.

(83) Thirdly Daljeet Kumar Sikri (PW15) and Madan Gopal Sikri (PW16) who are the brothers of the deceased, have both identified the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 54 mobile phone Ex.P­1 and have proved that the deceased was using the said mobile phone and corroborates the testimony of Seema Sikri (PW13) the wife of the deceased to this extent.

(84) Fourthly the fact that no public witness was joined at the time of conducting the search of the accused would not be fatal to the case of the prosecution in view of the fact that the Investigating Officer Inspector J.P. Meena (PW24) has specifically stated that he had made efforts to join the public witness but they refused and left after expressing their inability. I may observe that it is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on the part of public to join such proceedings. This position of law was reiterated in the case of Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. It was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish Vs. State reported in 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in A. Bhai Vs. State reported in AIR 1989 SC 696, wherein it was held that the Court cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 55 them, without any commensurate benefit. Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of Mobile phone belonging to the deceased from the possession of the accused Vinod @ Nehru. Their testimony cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State reported in (1996)3 SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police force. It was observed in Aner Raja Khima Vs The State of Saurashtra, reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof. These two authorities were also relied upon by Hon'ble High Court in Aslam & Ors (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. (85) Lastly the factum of recovery of mobile phone bearing IMEI No. A0000021B21B22 (Ex.P­1) from the possession of the accused Vinod @ Nehru being established it was for the accused to account for his possession, that is, to explain how he got hold of the stolen property. Unless he can reasonably account for its possession, specially when he is found in possession of the stolen property soon after it was stolen, it is only reasonable to conclude not only that he was in possession knowing or having St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 56 reasons to believe it to be stolen property but also he acted dishonestly in receiving or retaining such property. The gravamen of the offence under Section 411 Indian Penal Code is 'Possession' of the stolen property by the accused. Though the term 'Possession' is a polymorphous term having different meanings in different contexts, by the use of the term 'Possession' in Section 411 Indian Penal Code, the legislators never wanted that possession must be a subsisting possession, it is sufficient if the accused is proved to have been in possession of that property at any point of time after it was stolen.

(86) Applying these settled proposition of law to the facts of the present case, it was for the accused Vinod @ Nehru to explain how the stolen mobile phone of the deceased came into his possession which the accused has not been able to explain. The accused did not offer any justification or explanation for the same, rather gave a vague reply stating that the mobile phone has been planted upon him by the police in order to connect him with the offence.

(87) This being so, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Vinod @ Nehru of having dishonestly receiving or retaining the stolen mobile phone make LG, Model LG­6210 knowing or having reasons to believe the same to be a stolen property for which he is held guilty of the offence under Section 411 Indian Penal Code.

St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 57

Prosecution has not been able to prove and establish the allegations against the accused under Section 392,394 & 302 IPC:

(88) The case of the prosecution is that the accused Vinod @ Nehru along with his associate Birbal @ Lapte had committed the robbery of the mobile phone upon the victim and thereafter fatally stabbed the victim Vinod Sikri. However, the entire evidence as adduced by the prosecution is silent on this aspect and does not directly or even remotely connect the accused Vinod @ Nehru with the stabbing of the deceased. I may observe that it is case of the prosecution that the clothes worn by the accused Vinod @ Nehru were taken into custody since they were containing some blood stains. To my mind it appears to be absolutely improbable that a person who had committed the murder of some person would roam in the area wearing same blood stained clothes for almost two days. Therefore, not much importance can be placed to the seizure of the clothes worn by the accused which according to the prosecution was containing blood spots more so when the FSL report does not prove any grouping on the said clothes. The only incriminating evidence against the accused is the possession of the stolen mobile phone belonging to the deceased and his disclosure statement. I may observe that as already observed herein above the disclosure statement of the accused made to the police is inadmissible in evidence and recovery of the mobile belonging to the deceased is not pursuant to his disclosure statement but was recovered in the personal search of the accused. There is nothing on record which connects the accused Vinod @ Nehru with the offence of St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 58 robbery and murder of the deceased Vinod Kumar Sikri. (89) In view of the above I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Vinod @ Nehru of having committed robbery of mobile phone belonging to Vinod Kumar Sikri from his possession and while committing the robbery voluntarily caused hurt upon Vinod Kumar Sikri by stabbing him on his chest and thereby caused the death of Vinod Kumar Sikri for which he is hereby acquitted of the charges under Sections 392/394 & 302 IPC.

FINAL CONCLUSIONS:

(90) In the case of Sharad Birdhichand Sarda ­vs­ State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 59

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(91) Applying the above principles of law to the present case, on the basis of the evidence on record the following facts stand established:

➢ That the deceased Vinod Kumar Sikri was residing at D­14, Lord Krishna Road, Adarsh Nagar, Delhi along with his family. ➢ That the deceased Vinod Kumar Sikri was having three brothers namely Daljeet Singh Sikri, Madan Gopal Sikri and Surender Kumar Sikri who are residing in the same premises i.e. D­14, Lord Krishna Road, Adarsh Nagar, Delhi.

➢ That Vinod Kumar Sikri along with his handicap brother Surender Kumar Sikri were residing on the ground floor, Madan Gopal on the first floor and Daljeet Singh Sikri reside on the second floor of the said premises.

➢ That the deceased Vinod Kumar Sikri was running a tea shop in Gandhi Vihar, near Indira Vikas Colony, Nirankari Colony, Jahangir Puri.

➢ That on 27.7.2012 at about 8:45 PM the wife of the victim Vinod Sikri namely Smt. Seema Sikri made a telephone call to her husband on his mobile phone No. 9310762592 from her mobile phone No. 9711348862 to inquire as to in how much time he was St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 60 reaching home.

➢ That Vinod Kumar Sikri informed her that he had started to proceed for home from the shop.

➢ That thereafter Seema Sikri could not get contacted to her husband on his mobile phone when he did not reach home.

➢ That at about 10:30 PM Satya Nand Thakur (a doctor by profession having his clinic at Main Road, Bhagwan Park, Hardev Nagar) along with his brother Kritya Nand Thakur were going home on a motorcycle and when they reached near Shah Alam Bagh, near the MCD Kuredan he noticed the injured Vinod Kumar Sikri lying in a pool of blood.

➢ That Satya Nand Thakur immediately made a PCR call from his mobile No. 9910425768.

➢ That pursuant to the said call, PCR Incharge ASI Baldev Singh along his staff reached the spot and shifted the injured to BJRM Hospital but the injured was declared brought dead by the doctors. ➢ That in the meanwhile the local police was informed pursuant to which SI Krishan first reached the spot where he found a bicycle, a thaila / bag and blood there after which he reached BJRM Hospital and collected the MLC of the deceased.

➢ That the family members of the victim were informed after which the wife of the deceased namely Smt. Seema Sikri informed the police that her husband was having a mobile phone make LG­6210 St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 61 and also produced a bill of the same which was seized by the Investigating Officer.

➢ That postmortem examination on the body of the deceased was got conducted and the cause of death was opined to be haemorrhagic shock consequent upon stab injury which was antemortem in nature, fresh in duration, caused by simple sharp edged weapon like knife and was sufficient to cause death in ordinary course of nature. ➢ That on 29.7.2012 pursuant to a secret information the accused Vinod @ Nehru was apprehended along with his associate Birbal @ Lapeta (juvenile).

➢ That the clothes which Vinod @ Nehru and Birbal @ Lapeta (juvenile) were wearing at the time of their apprehension, were having blood stains and hence their clothes were seized by the police.

➢ That mobile phone belonging to the deceased was recovered from the possession of the accused Vinod @ Nehru.

(92) The prosecution has however not been able to prove that on 27.7.2012 at about 10:15 PM Ct. Mukesh had seen the accused Vinod @ Nehru and Birbal @ Lapeta (juvenile) in a distorted condition with their clothes having blood stains. It does not stand established that the accused Vinod @ Nehru was present along with the juvenile Birbal @ Lapeta at the spot. The forensic evidence does not conclusively establish the blood stains St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 62 on their clothes were belonging to the deceased (ABO Grouping not found on the same). Therefore, the only evidence as against the accused Vinod @ Nehru is the recovery of the mobile phone belonging to the deceased which he has not been able to account for.

(93) In so so far as the provisions of Sections 392, 394 & 302 Indian Penal Code are concerned, I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the guilt of the accused persons. The material brought on record by the prosecution are insufficient so as to hold that accused Viod @ Nehru was guilty beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the accused. Crucially, the material and evidence on the record do not bridge the gap between "may be true" and must be true" so essential for a court to record a finding of guilt of an accused, particularly in cases based on circumstantial evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Vinod @ Nehru, beyond reasonable doubt and hence, benefit of doubt is being given to him who is acquitted of the charges under Section 392, 394 & 302 Indian Penal Code. (94) However, in so far as the provisions of Section 411 Indian Penal Code are concerned, the prosecution has proved the identity of the St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 63 accused, place of commission of the offence, the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial and the witness of the prosecution have been able to built up a continuous link.

(95) This being the background, I hereby hold the accused Vinod @ Nehru guilty of the offence under Section 411 Indian Penal Code for which he is accordingly convicted.

(96) Case be listed for arguments on sentence on 28.5.2013.

Announced in the open court                                 (Dr. KAMINI LAU)
Dated: 21.5.2013                                            ASJ­II(NW)/ ROHINI




St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri                   Page No. 64 

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Session Case No. 117/12 Unique Case ID No.: 02404R0305882012 State Vs. Vinod @ Nehru S/o Gulshan Kumar R/o Jhuggi No. 1818, G­Block, Jahangir Puri, Delhi (Convicted) FIR No.: 187/2012 Police Station: Jahangir Puri Under Sections: 302/394/411/34 IPC & 25/27 of Arms Act Date of Conviction: 21.5.2013 Arguments heard on: 28.5.2013 Date of sentence: 01.6.2013 APPEARANCE:

Present: Sh. Sukhbeer Singh, Addl. Pubnlic Prosecutor for the State.

Convict Vinod @ Nehru in Judicial Custody with Ms. Sunita Tiwari Advocate/ Amicus Curiae.

ORDER ON SENTENCE:

As per the allegations on 27.7.2012 at about 9:00­1:00 PM near MCD dumping ground, Shah Alam Bandh Road, Jahangir Puri the accused St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 65 Vinod @ Nehru along with Pappu @ Birbal @ Lapeta (juvenile) in furtherance of their common intention committed robbery of mobile phone belonging to Vinod Kumar Sikri from his possession and while committing the robbery they voluntarily caused hurt upon Vinod Kumar Sikri. It is also alleged that the accused Vinod @ Nehru along with his associate Pappu @ Birbal @ Lapeta (juvenile) committed the murder of Vinod Kumar sikri by giving stab injuries to him. Further, as per the allegations at open field of Delhi Jal Board, Jahangir Puri the accused Vinod @ Nehru dishonestly received or retained the stolen mobile phone make LG, Model LG­6210 knowing or having reasons to believe the same to be a stolen property.

However, on the basis of the testimonies of the various witnesses examined by the prosecution this Court has acquitted the accused Vinod @ Nehru of the charges under Sections 302/392/394 Indian Penal Code and held him guilty only for the offence under Section 411 Indian Penal Code for which he has been accordingly convicted.

Heard arguments on the point of sentence. The convict is stated to be a young boy of 25 years having a family comprising of father only. He is 5th class pass and at the time of his arrest was doing a job in a Saree Shop at Jahangir Puri. Ld. Amicus Curiae has vehemently argued that the convict Vinod @ Nehru is a first time offender and is not involved in any criminal case. She has argued that the convict is the only son of his father and belong to a very poor family. She requests that a lenient view be taken against the convict.

St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 66

On the other hand the Ld. Addl. PP for the State has prayed for a strict punishment for the convict Vinod @ Nehru keeping in view the allegations involved.

I have considered the rival contentions and I may observe that the convict Vinod @ Nehru is a young boy having clean antecedents. He has already remained in Judicial Custody for about ten months. The convict is the helping hand of his aged father and any strict view at this stage, would be detrimental to the young convict. This being the background a lenient view is taken against the convict Vinod @ Nehru who is sentenced to Rigorous Imprisonment for a period of One Year and fine to the tune of Rs.2,000/­ for the offence under Section 411 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of One Month.

Benefit of Section 428 Cr.P.C. shall be given to the convict for the period undergone by him during the trial.

The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an Advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri Page No. 67

Copy of the judgment and order on sentence be given to the convict free of costs and another be attached with his jail warrants.

File be consigned to Record Room.

Announced in the open court                                  (Dr. KAMINI LAU)
Dated: 1.6.2013                                             ASJ­II(NW)/ ROHINI




St. Vs. Vinod @ Nehru, FIR No. 187/2012, PS Jahangir Puri                 Page No. 68