Delhi District Court
Ashok Narang vs . State 2012 (1) Jcc 482, (B) Kansa ... on 20 April, 2012
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IN THE COURT OF SH. T.S. KASHYAP
ADDITIONAL SESSIONS JUDGE-04, NORTH-EAST DISTT
KARKARDOOMA COURTS, DELHI
FIR No. : 813/05
Under Section : 342/323/302/201/34 IPC &
120-B IPC
Police Station : Nand Nagri
Sessions Case No. : 157/08
Unique I.D. No. : 02402R0105942006
In the matter of
STATE
Vs.
1. VINOD KUMAR S/o Tej Ram Singh, R/o Plot No. 4,
Madhuvan Duplex, Milan Garden, Delhi.
2. AJEET SINGH S/o Mahi Chand, R/o Village Teela Sahbadpur,
PS Loni, District Ghaziabad, U.P. (Already Discharged vide order on
charge dated 01.08.2006)
3. KAPIL S/o Harbir Singh, R/o Village Beenpur, PS Gangoh,
District Saharanpur, U.P.
4. RAKESH SINGH S/o Rambir Singh, R/o Village Chhajjupura,
PS Dholana, District Ghaziabad, U.P.
5. SANDEEP S/o Harbir Singh, R/o Village Beenpur, PS Gangoh,
District Saharanpur, U.P.
......Accused Persons
Date of Institution : 30.01.2006
Date of committal : 21.02.2006
Date of reserving judgment : 20.04.2012
Date of pronouncement : 20.04.2012
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JU D G M E N T
1. Brief facts of the prosecution case are that an information
through DD No. 30, dated 02.11.2005 at about 05.45 p.m., from
GTB Hospital regarding admission of injured Subodh s/o
Mukandi Singh, r/o F-77/F-3, Shalu Appartments, Shalimar
Garden, Sahibabad, Ghaziabad, U.P., and injured Udit Maan s/o
Inder Pal Singh, r/o F-236 A, MIG Flats, GTB Enclave, Opposite
GTB Hospital, Dilshad Garden, Delhi, by father of injured Subodh
was received. ASI Jalvir Singh and SI Ajay Negi reached the
hospital. SI Ajay Negi collected MLC No. A-4821/05 in respect of
injured Subodh Kumar S/o Mukandi Singh on which Doctor had
made endorsement (brought dead). MLC No. A-4822/05 in
respect of injured Udit Maan was also collected, on which doctor
had made endorsement 'fit', u/o blunt'. Body of deceased Subodh
was kept in mortuary and statement of Udit Maan was recorded
who stated as under:-
"I am residing at Flat No. 236 A, MIG Flats,
GTB Enclave, opposite GTB hospital and
running stationery shop at A-125, Dilshad
Colony and during the day, I work with BSNL
Courier Company. About 6 years back, I
became friend with Subodh Kumar s/o Sh.
Mukandi Singh, R/o Plot No. A-77/F-3, Shalu
Appartments, Shalimar Garden, Sahibabad,
Ghaziabad, U.P.Yesterday, on 01.11.2005, at
about 08.00 p.m., Subodh came to my shop on
his motorcycle and asked me to accompany
him to Bank Colony and I alongwith him went
to the Bank Colony on the motorcycle as
Subodh had to collect his stitched clothes from
FIR No. : 813/05, PS : Nand Nagari Page 2 of 57
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tailor's shop but the clothes were not ready.
Thereafter, Subodh told that he had to deliver
sweets to someone at Madhuban Duplex and
accordingly Subodh and myself went to
Madhuban Duplex at about 08.45 p.m. Subodh
asked me to wait at Milan Garden Road and
leaving me there, he himself went inside the
flat of Madhuban Duplex. After about 15
minutes, one boy came on motorcycle from
Madhuban Duplex. He hit his head on my
head. In the meantime, two other boys came
and took me to flat No. 6, ground floor,
Madhuban Duplex in a room where Subodh
was already lying unconscious in injured
condition. Inside, all those 3 boys started
giving me beatings with belts, dandas and
thapki. Out of these 3 boys, names of 2 boys
were Sandeep and Kapil which I came to know
during their talks. They went on beating
Subodh and me alternately and also continued
to abuse us for about 3 hours while giving
beatings to us. They were repeatedly saying
that we should stop following Kumari Rashmi,
daugther of Dr. Vinod Sharma. At about 01.00
midnight, Dr. Vinod Sharma also came and
gave beatings to us. In between, another boy
came in the room and Kapil said that Vivek you
also beat Subodh, on which he also started
beating Subodh. Subodh said to him that
brother you should not beat him and after
giving beatings, he left the room. Thereafter,
Doctor Vinod Sharma told all the 3 persons to
make us run away and somehow on our
motorcycle we reached at some unknown
place, at Saboli where with the mobile phone
of some unknown person, Subodh called his
brother Manoj at Shalimar Garden and
accordingly, Manoj came to us and took us at
the house of Subodh at Shalimar Garden
where Subodh told his father Sh. Mukandi
Singh that Dr. Vinod and his 3 associates have
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given beatings to him. The condition of Subodh
started deteriorating and thereafter we were
taken to GTB Hospital and while we were on
the way to hospital, Subodh died. Dr. Vinod
alongwith his associates namely Kapil, Vivek
and 2 others gave merciless beatings to us for
about 3 hours with dandas, belts and thapki
due to which Subodh has died and I have
received injuries. Legal action be initiated
against them. I can identify Dr. Vinod, Kapil,
Vivek and his 2 associates on seeing them."
2. SI Ajay Singh Negi alongwith ASI Jalbir went to the address of
Udit Maan at Flat No. 6, Madhuvan Duplex, Sewa Dham Road,
Delhi and when the kunda of that flat was opened. On checking
floor, it was found freshly cleaned. However, blood stains
alongwith one broken danda, etc., were lying. SI Ajay Singh Negi
sent rukka through ASI Jalbir Singh for getting the FIR u/s
342/302/201/323/34 IPC registered at the PS Nand Nagri, Delhi.
It was also requested that crime team and photographer be also
sent at the spot. Senior Officers be informed through special
messenger. The case FIR was registered and investigation was
assigned to Inspector Bahori Singh, Addl. SHO, who during
investigation, recorded statement of witnesses, inspected the
spot, prepared site-plan, got the spot photographed, got the
postmortem conducted on the dead body of deceased Subodh,
collected postmortem report on which doctor had given opinion
that 'cause of death was shock due to extensive bruising
produced by blunt force impact. All injuries were antemortem in
nature and sufficient to cause death collectively in ordinary
course of nature'. IO also got the exhibits lifted with assistance of
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crime team which were sent to CFSL Kolkata. The accused
persons were arrested who made disclosure statements and the
charge sheet was filed pending receipt of FSL report. After the
completion of the investigation, charge-sheet U/s
342/323/302/201/34 IPC & 120-B IPC was filed against the
accused persons namely Vinod Kumar, Ajeet Singh, Kapil and
Rakesh. Later on, supplementary charge-sheet against accused
Sandeep was received on 30.05.2006.
3. Ld. Metropolitan Magistrate after supplying the necessary copies
to the accused persons, committed the case to the court of
sessions vide order dated 21.02.2006.
4. My Ld. Predecessor, vide order dated 01.08.2006, charged
accused persons namely Vinod Kumar, Kapil, Rakesh Singh and
Sandeep for offences punishable U/s 323/34 IPC and 302/34
IPC, to which, they pleaded not guilty and claimed trial. Vide the
same order, my Ld. Predecessor has discharged accused Ajeet
Singh of all the charges. On behalf of accused Rakesh Singh,
criminal revision No. 677/06 was preferred, which was allowed by
Hon'ble High Court setting aside the order on charge dated
01.08.2006 against all the accused persons and the matter was
remanded back for hearing and consideration of framing of
charge afresh. My the then Ld. Predecessor vide order dated
30.10.2007 had again passed the Order on charge for framing
the charge against accused persons including accused Rakesh
Singh for offence U/s 323/34 IPC and U/s 302/34 IPC and
further, recorded that since the charge had already been framed,
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the case be put up for Prosecution Evidence.
5. The prosecution in support of their case examined as many as
21 witnesses.
6. The prosecution examined following material witnesses:-
1) PW-1 Udit Maan is the complainant of this case. He
deposed that on the day of Deepawali in the year 2005 on
31st, he was accompanying the deceased Subodh Kumar at
Sewa Dham where deceased was being given beatings by
some persons and when he tried to save Subodh, he was
also given beatings by them. He alongwith Subodh were
taken to GTB hospital but on the way to hospital Subodh
died and was declared 'brought dead' at the hospital.
However, he did not identify the accused persons present
in the court namely Vinod Kumar, Kapil, Rakesh Singh and
Sandeep and therefore partly resiled from his statement
Mark PW1/A which was read over to him where it was not
so recorded.
2) PW-2 Smt. Roop Wati is the mother of deceased Subodh.
She deposed that before death, her son Subodh told her
that he was given beatings by Vinod uncle alongwith 7-8
persons namely Sandeep, Kapil, Rashmi Aunti, one Khan
and Ajit, son of Dr. Vinod etc., and also by one police
official. She partly resiled from her statement recorded u/s
161 Cr.PC.
3) PW-3 Manoj Kumar is the elder brother of deceased
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Subodh who reached at the place of occurrence and found
Subodh and Udit Maan lying there in injured condition and
had taken them to his house from where they were
removed to the hospital. According to this witness,
deceased had narrated him as to how the deceased got
injuries. He identified the dead body vide his statement
Ex.PW3/A and received the dead body after postmortem
vide receipt Ex.PW3/B.
4) PW-4 Mukandi is the father of deceased who alongwith his
wife had removed the deceased from his house to the
hospital where the deceased was declared brought dead.
He had identified the dead body vide his statement Ex.
PW-4/A and received the dead body after postmortem vide
receipt Ex. PW-3/B, wrongly recorded as Ex. PW4/B in the
testimony of the witness.
7. The prosecution also examined following formal witnesses :
1) PW-5 Dr. S. Lal, the then Sr. Demonstrator in UCMS,
Mortuary, GTB Hospital has proved the PM Report No.
1069/05S regarding postmortem conducted on 02.11.2005
on the dead body of deceased Subodh Kumar who was
declared brought dead vide MLC No. A-4821/05 dated
02.11.2005 at 05.30 AM. He proved the cause of death as
'shock due to extensive bruising produced by blunt force
impact'. He proved his detailed report Ex. PW-5/A, all
injuries were antemortem in nature and were sufficient to
cause death collectively in ordinary course of nature and
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time since death was about 12 hours.
2) PW-7 M.K. Majumdar, Sr. Scientific Assistant, CFSL,
Kolkata, proved his detailed report Ex. PW7/A with respect
to the forensic examination conducted by him on different
sealed parcels. He proved that Ex. 2a, 2b, 3, 5 to 8 & 10 to
12 were found positive for blood test and Ex. 9 was found
negative for blood test and Ex. 13 was found human hair.
3) PW-8 B. Singh, Sr. Scientific Officer, CFSL Chandigarh,
proved the viscera report Ex. PW-8/A regarding viscera
exhibits of deceased Subodh Kumar, male, aged 21 years,
PMR No. 1069/05, dated 02.11.05 sent to this witness in a
sealed wooden box by DCP, North-East Delhi vide Memo
No. 3458, dated 28.12.2005. He opined that no common
poison could be detected in the case samples.
4) PW-9 Inspector Vinita Tyagi from CAWC, North-East Distt.,
Delhi, was the Duty officer on 02.11.2005 from 08.00 AM to
04.00 PM and on receipt of Rukka from ASI Jalbir sent by
SI Ajay Singh Negi, recorded FIR of this case u/s
342/302/201/323/34 IPC, copy of which is Ex.PW-9/A. She
made her endorsement on the Rukka Ex.PW-9/B and after
registration of the FIR, through constable, she sent the
copy of FIR and Rukka to Inspector Bahauri Singh for
investigation.
5) PW-11 Ct. Khurshid Ahmed proved the seizure memos Ex.
PW-11/A and Ex. PW-11/B. On 02.11.2005, he was posted
as Constable at PS Nand Nagri and on receipt of DD No.
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30, went to GTB hospital and handed over the said DD to
ASI Jalbir at hospital. He identified Ex. PW-11/Article-1.
6) PW-13 Dr. Parmeshwar Ram, CMO, GTB Hospital, proved
Ex. PW-13/A which is MLC (bearing No. A-4821/2005) of
deceased Subodh (who was brought dead), prepared by
Dr. Gilley Bhutia in handwriting. He identified the
handwriting of Dr. Gilley Bhutia being a colleague. This
witness was also recalled u/s 311 Cr.PC and proved Ex.
PW-13/B which is the MLC of Uditman, bearing MLC No.
4822/2005.
7) PW-16 ASI Harpal Singh was posted as MHC(M) on
02.11.2005 at PS Nand Nagri. He proved Ex. PW-16/A (6
pages) which are the entries of having received sealed
parcels and viscera petti from the IO. He sent the parcels
to CFSL, Calcutta through Ct. Narayan vide RC No.
384/21/81. He received the FSL report on 05.09.2006
viscera report on 10.12.2006 and handed over the same to
the IO. He proved the copy of receipt and RC Ex. PW-16/B.
8) PW-18 HC Sunder Lal proved photographs of injured Ex.
PW-15/DX-4, Ex. PW-15/DX-5, Ex. PW-18/P-1 and
photographs of spot Ex. PW-15/DX-1 to DX-3 and
PW-18/P-2 to P-10. He also proved negatives of
photographs Ex. PW-18/N-1 to N-22.
9) PW-19 HC Bhoop Singh is the witness of arrest of accused
Sandeep who surrendered before the court and with the
permission of the court, IO had interrogated him and
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arrested him vide memo Ex. PW-1.
10) PW-21 Sh. Rajesh Kumar Singh, Ld. MM had conducted
TIP proceedings of accused Sandeep Kumar wherein
witness Udit Mann failed to identify the accused Sandeep
Kumar. He proved the TIP proceedings Ex. PW-21/A,
certificate Ex. PW-21/B, regarding correctness of the same
and original application Ex. PW-21/D, moved for
conducting TIP. He handed over copy of TIP proceedings
to the IO on his application Ex. PW-21/C.
8. The prosecution also examined following witnesses of arrest and
investigation :
1) PW-6 Ct. Devender Kumar is the witness of arrest of accused
Kapil and Rakesh and proved their Arrest Memos Ex. PW-6/A
& Ex. PW-6/B, Personal Search Memos Ex. PW-6/C & Ex.
PW-6/D, disclosure statements Ex. PW-6/E & Ex. PW-6/F. He
also proved their pointing out memos Ex. PW-6/G & Ex.
PW-6/H. He identified the accused Kapil and Rakesh. His
statement was recorded by IO.
2) PW-10 Ct. Ashok has joined the investigation on 31.12.2005
and alongwith IO/Inspector Bahuri Singh had arrested the
accused Kapil and Rakesh from near the gate of Sarvodaya
Super Hospital, Sewa Dham Road, Krishna Vihar, Loni,
Ghaziabad. He identified both these accused persons in the
court and proved their arrest memos Ex. PW-6/A & Ex.
PW-6/B, their personal search memo Ex. PW-6/C & Ex.
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PW-6/D, their disclosure statements Ex. PW-6/E & Ex.
PW-6/F.
3) PW-12 ASI Jalbir was posted as ASI at PS Nand Nagri, P.P.
Harsh Vihar, on 02.11.2005 and on receipt of DD No. 30, he
reached at GTB Hospital. He proved DD No. 30 as Mark
PW-12/PA. SI Ajay Negi recorded the statement of injured
Uditman, endorsed the same and handed over the same to Ct.
Suhash who alongwith SI Ajay Negi got the FIR registered. Ct.
Khurshid was deputed to guard the dead body for
postmortem. He was also accompanied by SI Ajay Negi while
inspecting the spot. SI Ajay Negi got the spot inspected and
photographed and IO Bahuri Singh conducted the further
investigation. He proved seizure memo Ex. PW-12/A.
4) PW-14 SI Ajay Kumar is the initial IO. On 02.11.2005 he was
posted as Chowki Incharge at PP Harsh Vihar, PS Nand Nagri
and at about 6.00 p.m., on receipt of information of DD No. 30
from Duty Officer that two boys in injured condition were
admitted in GTB Hospital and one was declared brought dead,
he reached at the GTB Hospital where ASI Jalbir and Ct.
Khurshid were already sent to attend the said DD. He
collected the MLC No. A-4821 vide which injured Subodh was
declared brought dead. He also collected MLC No. A4822 of
injured Udit Mann wherein doctor had declared him fit for
statement. He sent dead body of Subodh to Mortuary, GTB
Hospital for postmortem and directed Ct. Khurshid to guard
the same. He recorded statement Mark PW-1/A of Udit Mann.
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Thereafter, alongwith ASI Jalbir and injured/complainant Udit
Mann, he reached at the place of occurrence i.e. flat No. 6,
Madhuban Duplex, Sewadham Road, Delhi. As instructed by
SHO on telephone, he made his endorsement Ex. PW-14/A
on the statement of complainant/injured Uditman and handed
over it to ASI Jalbir Singh to get the FIR registered who later
on reached back at the spot and handed over the Rukka and
copy of FIR to the IO. Further investigation was assigned to
Inspector Bhori Singh who alongwith SHO and other police
officials reached at the spot. He proved the seizure memos
Ex. PW-12/A, Ex. PW-12/DB, Ex. PW-12/DD, Ex. PW-12/DC.
Thereafter, he alongwith IO, complainant and Ct. Rameshwar
reached at the GTB hospital. IO got conducted the
postmortem upon the dead body of deceased and thereafter
dead body was handed over to the relatives of deceased for
cremation. He was also a member of the police party who
apprehended the accused Vinod from the roof of Sarvodaya
Clinic/Nursing Home at Krishna Vihar, Sewadham Road, Loni,
U.P., and proved Ex. PW-14/B arrest memo of accused Vinod,
Ex. PW-14/C his personal search memo, Ex. PW-14/D his
disclosure statement. IO recorded his statement. On the same
day, at 11.45 p.m., he alongwith IO reached at Shalu
Apartment, Ghaziabad where IO recorded the statement of
mother of deceased. He identified the accused Vinod present
in the court. He also identified case property
Ex.PW-14/Article-1, Ex.PW-14/Article-2, Ex.PW-14/Article-3,
Ex.PW-14/Article-4, Ex.PW-14/Article-5, Ex.PW-14/Article-6 &
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Ex.PW-14/Article-7,
5) PW-15 Inspector Bahori Singh was the IO of case. He also
proved the seizure memos as proved by PW-14. He prepared
the site plan Ex. PW-3/DA. He recorded the statement of ASI
Jalbir Singh who handed over the copy of FIR and original
Rukka to him after getting the FIR registered. He prepared the
inquest paper for conducting postmortem on the body of
deceased and proved Ex. PW-15/P1 and Ex. PW-15/P2. He
proved Ex. PW-4/A statement of Mukandi Lal (father of
deceased) and Ex. PW-3/A statement of Manoj Kumar
(brother of deceased), recorded by him regarding identification
of dead body. He also recorded their statements u/s 161
Cr.PC. He proved seizure memo Ex. PW-11/B. After
postmortem, he handed over the dead body of deceased to
Mukandi Lal (father of deceased) Manoj Kumar (brother of
deceased), for cremation vide receipt Ex. PW-3/B. He
alongwith his police team, apprehended accused Dr. Vinod
from the roof of Sarvodaya Nursing Home. He interrogated
him and arrested him vide arrest memo vide Ex. PW-14/B,
conducted his personal search memo vide Ex. PW-14/C and
recorded his disclosure statement vide Ex. PW-14/D. Accused
Dr. Vinod led the police party at the place of occurrence and
pointed out the same vide pointing out memo Ex. PW-15/A.
He proved the seizure memo Ex. PW-11/A. He recorded the
statement of Ct. Khurshid and SI Ajay Negi. He also recorded
the statement of wife of Mukandi Lal u/s 161 Cr.PC. He also
apprehended accused Ajit, interrogated and arrested him vide
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arrest memo Ex. PW-15/B, conducted his personal search
vide memo Ex. PW-15/C, recorded his disclosure statement
vide memo Ex. PW-15/D. Accused Ajit led the police party to
the place of occurrence vide pointing out memo Ex. PW-15/E.
On 30.11.2005, he received the postmortem report alongwith
viscera petti from the hospital and seized the same through
seizure memo Ex. PW-15/F. He also apprehended accused
Kapil and Rakesh and identified them in the court. He arrested
accused Kapil and Rakesh vide arrest memos Ex. PW-6/A
and Ex. PW-6/B, conducted their personal search vide memos
Ex. PW-6/C and Ex. PW-6/D and proved their disclosure
statement Ex. PW-6/E and Ex. PW-6/F. Both the accused
persons led the police party to the place of occurrence vide
pointing out memos Ex. PW-6/G and Ex. PW-6/H. IO
prepared the charge-sheet on behalf of SHO and thereafter
the case was transferred to District Investigation Unit, (DIU)
North-East, Delhi. Accused Sandeep was arrested by the IO
of DIU, who prepared supplementary charge-sheet and filed
the same in the court. He identified the case property Ex.
PW-14/Article-1 to Ex. PW-14/Article-7. He also identified Ex.
PW-15/Article-1 (colly).
6) PW-20 N.S. Panwar was posted as Inspector DIU on
19.04.2006 when present case was marked to him for
investigation. He with the permission of Ld. MM before whom
accused Sandeep had surrendered, arrested him vide arrest
memo Ex. PW-19/A. He also got conducted the TIP of
accused Sandeep on 19.04.2006, collected the copy thereof
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and placed the same on record. He recorded statements of
PWs, prepared supplementary charge-sheet and filed the
same in the court through SHO.
9. In their separate statements u/s 313 Cr. PC, incriminating
evidence against accused persons was put to them wherein they
denied the prosecution evidence and claimed innocence.
10. Accused Vinod Kumar in his statement U/s 313 Cr.P.C has
stated that he has been falsely named by PW-4 and PW-2
Mukandi and his wife respectively as they wanted to marry their
son (deceased) Subodh with his daughter and since his daughter
was highly qualified and of more age than the deceased and that
their caste was different and the marriage was not possible, they
had refused to marry their daughter with the deceased Subodh.
During the course of his arrest, it was conveyed by Mukandi and
his wife to them that his name has been falsely taken by them in
this case and if he and his family can give them Rs. 5 lacs, then
they will not make statement against them. He told this matter to
his nephew Sh. Arun Kumar Sharma. Mukandi and his wife had
also come to the jail to meet him and to convey this to him. His
nephew has paid Rs.1 lac to Mukandi but he wanted entire
money to be paid by them before the start of the case which they
did not agree and his above said nephew arranged for sting
operation by Star News. The Star News people arranged for sting
operation and in their presence, Rs.10,000/- were given to
Mukandi in presence of his wife. Mukandi also gave an affidavit
written in his own hand to his nephew and whatever deliberation
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had taken place during the sting operation, the photographs
thereof have already been filed on record. They will produce the
person who had done that sting operation. It was a day of Diwali
and crackers were being burst by the duplex resident in the
ground opposite the flats and no such incident as alleged had
ever taken place in Flat No.6 otherwise the residents of the
locality would have known about such incident. About the quarrel
which had taken place between the deceased and the cracker
bursting people outside at Milan Garden has been explained by
PW-1 Udit Mann in his statement. No blood was found by the
police on the sofa on which the deceased was made to lie. The
entire story against them is a concocted story out of enmity. They
have been falsely implicated in this case. He opted to lead
evidence in his defence.
11. Accused Kapil in his statement U/s 313 Cr.P.C has stated that he
is innocent. He and his brother Sandeep have been falsely
implicated in this case by figuring their name in the FIR in the
statement of Udit Mann at the instance of ASI Jalbir who has
enmity with him and his brother being residents of same village.
He and his brother Sandeep have no concern with the family of
deceased Subodh and girl Rashmi. They are innocent and have
been falsely implicated in this case at the instance of ASI Jalbir
Singh on account of enmity with the ASI Jalbir Singh. He opted to
lead evidene in his defence.
12. Accused Rakesh in his statement U/s 313 Cr.P.C has stated that
he is innocent and has been falsely implicated in this case. He
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does not have any concern with Dr. Vinod and family of
deceased. He opted to lead evidene in his defence.
13. Accused Sandeep in his statement U/s 313 Cr.P.C has stated
that he is innocent. He and his brother Kapil have been falsely
implicated in this case by figuring their name in the FIR in the
statement of Udit Mann at the instance of ASI Jalbir who has
enmity with him and his brother being residents of same village.
He and his brother Kapil have no concern with the family of
deceased Subodh and girl Rashmi. They are innocent. He opted
to lead evidene in his defence.
14. In their defence, accused persons examined as much as 9
witnesses i.e. DW-1 Ct. Neel Kamal, DW-2 Radhey Shyam,
DW-3 Kritpal Singh, DW-4 Yashpal Singh, DW-5 Raj Kumar,
DW-6 Ved Prakash, DW-7 Ct. Neel Kamal, DW-8 Vimal Kaushik,
Crime Head, India TV and DW-9 Arun Kumar Sharma.
15. I have heard submissions from Ld. Addl. PP for the State and
also from Ld. Defence counsels. I have also gone through the
record.
During the Arguments, Ld. Defence Counsel for accused Vinod
sought permission from the Court to play Video CD to display the
Sting Operation carried by Star News and the said VCD was
played in the Court with permission of the Court on the laptop
and accessories, arranged by Ld. Defence Counsel.
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16. On behalf of the State, it has been submitted by Ld. Addl. P.P.
that PW-2 Roop Wati (mother of the deceased), PW-3 Manoj
Kumar (brother of the deceased) and PW-4 Mukandi Singh
(father of the deceased) are the material and reliable witnesses
of this case and they have fully supported the prosecution
version and also proved the circumstances and the motive of the
accused persons to commit the murder of deceased Subodh. It
has also been submitted that case is beyond reasonable doubt
against the accused persons. Therefore, accused persons be
convicted.
17. On behalf of accused Sandeep and Kapil, it has been submitted
by Chaudhary Rajender Singh, Ld. Defence counsel that DD No.
30 was sent from GTB Hospital which was received by ASI Jalbir
Singh who was having enmity with accused Kapil and Sandeep
as they hail from same village Beenpur, Distt. Saharanpur. These
accused persons do not belong to the family of accused Vinod or
of Mukandi Lal, father of the deceased. At the time of cross-
examination of ASI Jalbir Singh, the fact of enmity could not be
put to him and subsequently, application moved on behalf of
accused persons was allowed by the court but ASI Jalbir Singh
was suffering from cancer and therefore, he could not appear in
the court and the fact of enmity between these two accused and
ASI Jalbir Singh could not be put to him. Both the said two
accused persons have examined DW-4 Yashpal to prove on
record that ASI Jalbir Singh was having enmity with accused
Kapil and Sandeep. PW-1 has turned hostile and accused
Sandeep was not identified by the witness in the TIP. It is
FIR No. : 813/05, PS : Nand Nagari Page 18 of 57
19
submitted that both these accused persons namely Kapil and
Sandeep have been falsely implicated.
18. On behalf of accused Rakesh, it is submitted by Sh. R.K.
Sharma, Ld. Defence Counsel that since role of accused Ajeet
and Rakesh was almost similar, while accused Ajeet has been
discharged and accused Rakesh is facing trial. Accused Rakesh
was not named by PW Udit Maan in his statement u/s 161
Cr.PC. PW-15 Inspector Bahori Singh had stated that on
30.11.2005, complainant sent one person to the PS who
informed him that accused Kapil and Rakesh will come to
Sarvodaya Nursing Home at Sewadham Road, Loni, Ghaziabad,
and on the same day, they were arrested but their disclosure
statements Ex. PW6/E and Ex. PW6/F were recorded on
31.12.2005, whereas their arrest has been shown on 30.11.2005
itself. Disclosure statements do not bear signatures of
complainant Udit Maan. Disclosure statement Ex. PW6/E of
accused Kapil does not bear the signatures of accused Kapil
whereas it bears signatures of accused Rakesh and similarly
disclosure statement Ex. PW6/F of accused Rakesh bears the
signatures of accused Kapil instead of accused Rakesh. PW-6
Ct. Devender Kumar in his cross-examination admits that no
public person was requested to join the investigation at the time
of arrest of accused. He admits that he does not remember the
clothes which the accused Rakesh was wearing at the time of his
arrest, whereas he has stated so in his statement u/s 161 Cr.PC.
PW-4 Mukandi in his cross-examination has stated that he did
not know other accused other than Dr. Vinod before the date of
FIR No. : 813/05, PS : Nand Nagari Page 19 of 57
20
incident and he came to know about accused Rakesh and Kapil
only subsequent to the statement of Udit Maan. PW-5 Dr. S. Lal,
in his cross-examination has admitted that there was no external
extensive bleeding on the body of deceased. PW-14 SI Ajay
Kumar Negi admits in the cross-examination that he did not visit
the village of accused Rakesh and therefore, no information of
arrest of accused Rakesh was given to any of his family member.
He submitted that accused Kapil and Rakesh were working in the
same factory and the accused Rakesh was called at the PS
through accused Kapil and since they were working together,
accused Rakesh went to the PS where he was arrested. PW-12
ASI Jalbir in his statement has admitted that he had stated name
of Kapil and of one boy who was his brother but name of that boy
was not disclosed and if accused Rakesh was involved, ASI
Jalbir being of the same village would have named accused
Rakesh earlier instead of merely stating that one boy the brother
of Kapil (as has been deposed by PW-12 ASI Jalbir). It is further
submitted by Ld. Defence Counsel that no rough site-plan is
there on record. On behalf of accused Rakesh, Sandeep and
Kapil, it has been submitted that they are neither the family
members nor the relatives of main accused Dr. Vinod Kumar and
no motive has been attributed to them to commit the alleged
offence in furtherance of their common intention with accused
Vinod Kumar. Therefore, they are entitled to be acquitted.
19. On behalf of accused Vinod Kumar, Sh. B.K Sharma, Ld.
Defence Counsel has submitted that the material Prosecution
Witness is PW-1 Udit Maan who has not supported the
FIR No. : 813/05, PS : Nand Nagari Page 20 of 57
21
prosecution story and has resiled from the statement recorded by
the IO. PW-2 Roopwati has claimed that the police has recorded
her statement in which, she has disclosed that her deceased son
Subodh had told her that he was given beatings by accused
Vinod alongwith seven-eight persons namely Sandeep, Kapil,
Vishnu, Aunti, one Khan, Ajeet S/o Dr. Vinod and one police
official but when she was confronted with her statement
Ex.PW2/DA it was not so recorded. She had admitted that she
did not show any Driving License to the police nor produced the
Driving License of her deceased son in the court and therefore,
the prosecution has failed to prove on record that the deceased
was having any Driving License. She claimed that she
accompanied her injured son Subodh to the hospital in the
vehicle belonging to her neighborer called Dhama Ji but she
does not remember whether she stated to the police that her son
was removed to the hospital in the vehicle of Dhama Ji.
According to her, there was no bleeding of her son from the
wound except few drops on the ear and no drop of blood fell in
the vehicle. She denied the suggestion that police had recorded
her statement on 02.11.2005 but on confrontation with statement
Ex.PW2/DA, it was found that her statement was recorded on
02.11.2005. She denied the suggestion that her husband
Mukandi Singh demanded Rs. 5 lakhs 25 thousand from the
accused persons to compromise the case. She admitted that
she alongwith her husband visited accused Dr. Vinod in jail.
She has also admitted her photograph as well as of her husband
Ex.PW2/DX1. She also admitted the photograph of Arun Kumar
FIR No. : 813/05, PS : Nand Nagari Page 21 of 57
22
nephew of Dr. Vinod Kumar is Ex.PW2/DX2 which also depicts
the photograph of her husband. She could not admit or deny
whether in the photograph Ex.PW2/DX2, her husband is shown
receiving money from Arun Kumar, nephew of accused Dr.
Vinod. She admitted that in photographs Ex.PW2/DX3,
Ex.PW2/DX4 and Ex.PW2/DX5, her husband is shown counting
money in the portion encircled as A-1, A-2 and A-3. She
voluntarily added that her husband was lifted on way but
admitted that she did not lodge any report of her husband having
been lifted on the way. She also admitted the photograph of her
husband in portion encircled as A4 and A5 in photographs
Ex.PW2/DX6 and Ex.PW2/DX7. The photographs Ex.PW2/DX8
shows Arun Kumar giving money to her husband who is counting
money in portion encircled A-6. She further admitted that in
portion encircled A-7 on photograph Ex.PW2/DX9, her husband
has been shown counting money. She admits that portion
encircled A8 in photograph Ex.PW2/DX10 shows her husband
taking wade of currency notes and her husband has been shown
in portion encircled A9 in photograph Ex.PW2/DX11 having
currency notes which he was putting in his pocket of shirt in the
portion encircled A-10 in photograph Ex.PW2/DX12. VCD was
played on laptop during the recording of cross-examination of
PW-2 before my Ld. Predecessor, wherein, it was recorded that
the CD shows husband of the witness receiving money from
Arun Kumar and also writing some documents by reading the
same, stating that, Dr. Vinod has no role in the death of his son.
The CD was proved as Ex.PW2/DX14. Ld. Defence Counsel
FIR No. : 813/05, PS : Nand Nagari Page 22 of 57
23
submitted that PW-3 Manoj Kumar in his examination-in-chief
has deposed that some portion of his statement recorded by the
police was not his correct statement and they are exaggerated.
He claims to have received a telephone call to immediately
remove Subodh from near house of the caller. Otherwise, he will
call the police on 100 number but he has not disclosed the name
or telephone number of the caller nor the police has done any
investigation in this regard. This witness further claims that he
had gone to the place of occurrence on a motorcycle but brought
from the place of occurrence the motorcycle which was taken by
injured Subodh, leaving the motorcycle on which he had gone
there but has not produced the documents of ownership of his
vehicle or the other vehicle. He was cross-examined by Ld. Addl.
P.P , wherein he denied that he had stated to the police in his
statement that he had received telephone call at 1:00 AM (night)
from his brother that he had sustained injuries and was present
at Sewa Dham Road and asked him to take him from there and
he immediately understood that his brother had gone to
Madhuban Duplex where Dr. Vinod was residing and when he
reached at the main gate of Milan Garden, Sewa Dham Road, he
saw many public persons including accused Dr. Vinod, his son
Vivek and his wife, gathered there and he stopped his
motorcycle. Dr. Vinod saw him and he got angry and told the
witness to trace Subodh (Ashiq) who must have died now. On
which, the witness got frightened and when he reached to Faneh
Khan Road, he found his brother and his friend Udit lying on the
ground but on confrontation with his statement Mark PW3/A from
FIR No. : 813/05, PS : Nand Nagari Page 23 of 57
24
portion A to A, it was found so recorded. In his further cross-
examination by Sh. B.K Sharma, Advocate for accused persons,
he admitted that police has exaggerated his statement, stating
that, if the said portion was added in his statement, it will make
the case against accused persons stronger. PW-3 claimed to
have made some more statement to the IO but on confrontation
with his statement Ex.PW3/A, it was not found so recorded. The
motorcycle left by PW-3 has not been seized by the police as it
was not found there. The place from where the call was received
by PW-3 was Faneh Khan Road but no site plan of that place
was prepared by the IO. There is no evidence of skidding of the
motorcycle. The story propounded by PW-3 is doubtful and
unbelievable whereas, the statement made by PW1 Udit Maan
appears to be consistent and believable as he also had suffered
injuries and was got admitted in the GTB hospital while Subodh
died on the way. PW3 Manoj has deposed that he brought the
injured from the place of occurrence, whereas, PW-2 Roopwati
has deposed that besides Udit Maan, some other person helped
Udit Maan to lift injured Subodh which is in contradiction with the
prosecution version. This witness deposed that on receipt of call
from unknown caller, he had gone to the place of occurrence but
he has not named the caller nor disclosed the telephone number
from which the call was received. He also deposed that he
brought the injured on the motorcycle which deceased Subodh
had taken and was lying at the place of occurrence leaving the
motorcycle on which PW-3 had gone there but he has not
disclosed the registration No. of the vehicle nor he has produced
FIR No. : 813/05, PS : Nand Nagari Page 24 of 57
25
any documentary evidence. He has deposed that deceased
Subodh was unconscious and was not in a position to get up and
sit on the motorcycle on his own. He also claims that from his
residence, both the injured were taken to GTB Hospital in the
vehicle of a neighborer but neither the neighborer has been cited
as witness nor the IO has recorded his statement and details of
the vehicle of the neighborer have not been given by him. Ld.
Counsel for the accused persons further submitted that PW-4
has claimed that the injured persons including Subodh were
brought by PW-3 on his motorcycle who climbed the stairs upto
first floor on his own which is in contradiction to the testimony of
PW3. He also deposed that the injured were taken to hospital in
the vehicle of neighborer but name of neighborer and details of
the vehicle have not been given by this witness. This witness has
also admitted to have executed an affidavit Ex.PW4/DA in his
own handwriting but claimed that the same was obtained by Mr.
Arun, nephew of accused Dr. Vinod and his 'bhanja' and
'behenoi' whose names PW4 has not disclosed but has also
admitted that he had not made any complaint to any authority in
this regard. This witness also admits the photographs
Ex.PW2/DX1 to Ex.PW2/DX13 which depict him in the
photographs alongwith his wife, photograph of Arun, nephew of
accused Dr. Vinod, he is holding currency notes given by Arun
and is counting them and he is also signing the affidavit. He
admitted that he has not made any complaint against the
accused persons or Mr. Arun regarding any threat pressure or
coercion under which his photographs were taken. PW-4 has
FIR No. : 813/05, PS : Nand Nagari Page 25 of 57
26
also admitted that he alongwith his wife had gone to Tihar Jail to
meet accused Dr. Vinod but voluntarily added that he was
forcibly taken there. However, he had not made any complaint in
this regard.
20. Ld. Defence Counsel further submitted that the prosecution has
not produced any evidence to prove that the blood of deceased
was compared with any belonging of the accused persons nor
the alleged hair recovered from the place of occurrence has been
got compared with the hair of deceased Subodh. The disclosure
statement made by the accused is not admissible as nothing has
been recovered pursuant to the alleged disclosure. It has been
submitted by Ld. Defence Counsel that the main witness PW1
has resiled and there are inherent inter-se contradictions in the
testimonies of PW2, PW3 and PW4. PW2 and PW4 have been
caught in sting operation which has been proved by DW8 Vimal
Kaushik, Crime Head, India TV. The relevant VCD has been
played in the court, entire episode has been proved on record,
from which, it is established on record that the accused persons
have been falsely implicated and therefore, accused persons are
entitled for acquittal.
21. Ld. Defence Counsel has relied upon authorities reported as (a)
Ashok Narang Vs. State 2012 (1) JCC 482, (b) Kansa Behera,
Appellant Vs. State of Orissa" AIR 1987 Supreme Court 1507,
(c) Divakar Neelkantha Hegde & Ors. Vs. The State of
Karnataka JT 1996 (7) S.C. 63, (d) Lal Mandi Vs. The State of
West Bengal JT 1997 (10) SC 586.
FIR No. : 813/05, PS : Nand Nagari Page 26 of 57
27
22. A well settled principle has been incorporated in section 101 of
Indian Evidence Act, 1872 that onus to prove the fact is on the
person who substantially asserts the same in affirmative and not
on the person who denies it, as negative is usually incapable of
proof. Therefore, it is the duty of prosecution to prove the facts by
leading cogent, consistent and creditable evidence through
trustworthy and reliable witnesses to prove the charge against
the accused beyond reasonable doubt without dilating on the
defective or diametrically different stands taken by the defence.
23. In order to establish an offence of murder, it is incumbent upon
the prosecution to prove following ingredients :-
(1) death of a human being,
(2) that it was caused by the accused persons,
(3) that the act by which the accused persons caused it was
done:-
(a) with an intention of causing death; or
(b) with the intention of causing such bodily injury as
the accused persons knew to be likely to cause the
death of the person to whom the harm was caused;
or
(c) with the intention of causing injury to the
deceased person and the injury intended to be
inflicted was sufficient in the ordinary course of
nature, to cause death, or
(d) with the knowledge that the act was so imminently
FIR No. : 813/05, PS : Nand Nagari Page 27 of 57
28
dangerous that it must, in all probabilities, cause
death or such bodily injury as is likely to cause death
and committed such act without any excuse of
causing death or such injury as aforesaid.
24. In order to see whether the above ingredients have been
established by the prosecution on record, the facts have to be
appreciated. It has to be first seen whether the prosecution has
been able to prove on record the death of injured Subodh.
25. PW-1 Udit Maan (the complainant) has deposed that on the
day of Deepawali in the year 2005 on 31st, he accompanied
Subodh Kumar and reached at Sewa Dham where deceased
was being given beatings by some persons and when he tried
to save Subodh, he was also given beatings by them. He
alongwith Subodh were taken to GTB hospital but on the way
to hospital Subodh died and was declared 'brought dead' at
the hospital. PW-4 Mukandi (father of the deceased) deposed
that on the way to the GTB Hospital, his son asked for water
from them and snatched water bottle from his hand and put
the same on his head and thereafter, he breathed his last in
the vehicle before they reached at GTB Hospital. Thereafter,
they reached GTB Hospital in Emergency, where the doctor
after examining him, declared him (Subodh) 'brought dead'
while injured was taken to hospital he died on the way. PW-3
Manoj Kumar (brother of the deceased) also deposed that the
doctor at the Hospital declared Subodh 'brought dead'.
26. PW-13 Dr. Parmeshwar Ram, CMO, GTB Hospital, proved the
FIR No. : 813/05, PS : Nand Nagari Page 28 of 57
29
MLC of injured Subodh Kumar vide Ex. PW-13/A which was
prepared by Dr. Gilley Bhutia. As per the MLC, Subodh was
'brought dead'.
27. PW-5 Dr. S. Lal, had conducted the postmortem examination on
the dead body of deceased Subodh Kumar vide PM Report No.
1069/05 which is Ex.PW5/A. He proved the cause of death as
'shock due to extensive bruising produced by blunt force impact'.
All injuries were antemortem in nature and were sufficient to
cause death collectively in ordinary course of nature and time
since death was about 12 hours.
28. PW-15 Inspector Bahori Singh deposed that he alongwith SI Ajay
Singh Negi, Complainant Udit Mann and police staff left the spot
for GTB Hospital, where father of the deceased and his relatives
met them. He prepared the inquest paper for conducting the
postmortem on the dead body of deceased. The brief facts and
form No. 25.35 are Ex.PW-15/P1 and Ex.PW-15/P2. He recorded
statement of father of deceased Sh. Mukandi Singh and his
brother Manoj regarding identification of dead body which are
Ex.PW-4/A and Ex.PW-3/A respectively.
29. PW-3 Manoj Kumar deposed that he identified the dead body of
his brother at the hospital vide his statement Ex.PW3/A and
received the dead body after the postmortem vide receipt
Ex.PW3/B which bears his signatures at point A. PW-4 Sh.
Mukandi (father of the deceased) also deposed that he had
identified the dead body of his son at GTB Hospital vide his
FIR No. : 813/05, PS : Nand Nagari Page 29 of 57
30
statement Ex.PW4/A and after the postmortem, received the
dead body of his son Subodh vide receipt Ex.PW3/B which bears
his signatures at point B.
30. The death is also not disputed by Ld. Defence Counsels.
Therefore, from the testimonies of public witnesses, police
officials and doctors, the death of deceased Subodh stands
proved on record.
31. The prosecution was further required to prove that the death of
Subodh was caused by the accused persons persons namely Dr.
Vinod Kumar, Kapil, Sandeep and Rakesh Singh :
(a) with an intention of causing death, or
(b) with the intention of causing such bodily
injury as the accused persons knew to be likely
to cause death of the person to whom the harm
was caused, or
(c) with the intention of causing injury to the
deceased person and the injury intended to be
inflicted was sufficient in the ordinary course of
nature to cause death, or
(d) with the knowledge that the act was so
imminently dangerous that it must in all
probabilities cause death or such bodily injury as
is likely to cause death and committed such act
without any excuse of causing death or such
injury as aforesaid.
32. As per the prosecution case, PW-1 Udit Maan is the eye-witness
of the alleged occurrence. This witness himself was also injured
and he alongwith the injured Subodh (who later died on way to
FIR No. : 813/05, PS : Nand Nagari Page 30 of 57
31
GTB Hospital) were taken to GTB Hospital from where intimation
vide DD No. 30 dated 02.11.2005 Mark PW12/PA was received
at Police Post Harsh Vihar, PS : Nand Nagri Delhi. The deceased
Subodh was got admitted by his father Sh. Mukandi Singh, as
per the information sent. On receipt of information, ASI Jalbir
Singh and S.I Ajay Singh Negi went to the GTB Hospital. S.I Ajay
Negi collected the MLCs in respect of the injured/deceased. S.I
Ajay Singh Negi recorded the statement of injured Udit Maan
(PW-1) on which, he made endorsement Ex.PW14/A and rukka
for registration of the FIR was sent through ASI Jalbir Singh.
However, PW-1 Udit Maan in his examination-in-chief has not
fully corroborated the contents of his statement Mark PW1/A. In
the court, he has deposed that on the day of Deepawali of year
2005, on 31st in the evening time, Subodh Kumar (deceased)
came to his shop. He asked him to go to Sewa Dham as he had
a work there and he accompanied him and they reached at Sewa
Dham. There they saw that some persons were bursting
crackers. They stopped their motorcycle on the road. Subodh
asked those persons as to why they were bursting crackers
there. On this, altercation took place between Subodh and those
persons and they started beating Subodh. When, PW-1 tried to
save him, they also gave beatings to him. Two-three persons
came there who saved them. Thereafter, PW-1 alongwith Subodh
went inside a flat and concealed themselves. They remained
there for some time and thereafter, came out from where, they
went to Sewa Dham on motorcycle. They had just gone upto
distance of 1 km from Sewa Dham where their motorcycle
FIR No. : 813/05, PS : Nand Nagari Page 31 of 57
32
skidded and they fell from the motorcycle. Neighborers gave
water to them. Subodh telephoned to his brother about
sustaining injuries but his brother did not come. Rather, asked
Subodh to come to his house at Shalimar Garden. He alongwith
Subodh went to the house of Subodh at Shalimar Garden with
the help of a man. Subodh became unconscious. He alongwith
Subodh were taken to GTB Hospital and on way to hospital,
Subodh died. He was medically examined and Subodh was
declared 'brought dead'. Accused persons present in the court
namely Vinod Kumar, Kapil, Rakesh Singh and Sandeep are not
the same persons who gave beatings to his friend Subodh and
him (PW-1). Since, this witness did not support the contents of
his statement Mark PW1/A, on which, the FIR was registered, he
was cross-examined by Ld. Addl. P.P. but he disowned the
material facts. He has specifically denied that three boys gave
beatings to him with bat, dandas and thapi. He also denied the
suggestion that accused Sandeep and Kapil were amongst the
three boys who gave beatings to them. He also denied the
suggestion that accused Dr. Vinod Sharma had asked other
three assailants namely Kapil, Sandeep and Rakesh to go out of
room and made them run away. He denied the suggestion that
he has been won over by the accused persons, as such, he was
not identifying the accused persons.
33. PW-2 Roopwati is not an eye-witness and has not deposed
anything in her examination-in-chief except that deceased
Subodh was having love affair with Kumari Rashmi (daughter of
accused Vinod Kumar Sharma). Ld. Addl. P.P. with the
FIR No. : 813/05, PS : Nand Nagari Page 32 of 57
33
permission of the Court, cross-examined PW2, wherein, PW2
stated that deceased Subodh did not tell her as to where he was
going. However, she claimed that after coming back, he told that
in the night of 1st November 2005, he was called by Rashmi. In
the cross-examination by Ld. Defence Counsel (for accused Dr.
Vinod Kumar), PW2 stated that she does not remember the date
when the police had recorded her statement and claimed that in
her statement, she had stated that before death of her son, he
had told her that he was given beatings by Vinod Uncle alongwith
7/8 persons namely Sandeep, Kapil, Rashmi, Aunty, one Khan
and Ajit as well as one police official. She was confronted with
her statement Ex.PW2/DA, where, it was not so recorded.
Similarly, in her further cross-examination, she stated that she
does not remember if she had stated in her statement to the
police that her son had also told her that he had requested one
Khan that he should not have given beatings to him as he was
like his brother. She made some more statements regarding the
love affair of her deceased Son with Kumari Rashmi but all such
statements made by her were found not so recorded in her
statement Ex.PW2/DA, with which she was confronted. She
admits that when her son came to her house, PW1 Udit Maan
had also accompanied him but she denied that her son Subodh
was unconscious. She also denied the suggestion that he was
not in a position to speak and did not state anything. She claimed
that Subodh was taken to hospital after 20 minutes in the vehicle
of neighborer and at that time, Subodh was not bleeding except
that he had a few drops on his forehead. According to PW-2, the
FIR No. : 813/05, PS : Nand Nagari Page 33 of 57
34
motorcycle on which deceased Subodh had gone with PW-1 Udit
Mann belonged to her husband. She denied the suggestion that
her deceased son was not having Driving License but no Driving
License was produced in the court. According to her, PW-1 Udit
Mann and her son Subodh reached at her house at about 1.45
AM (night) and they remained there for about 15 to 20 minutes
and both were having many injuries. She has claimed that they
had taken the injured to the hospital in the vehicle of her
neighborer called Dhama Ji. However, said Dhama Ji has neither
been examined by the IO nor cited as a witness and no
description of the vehicle was given by PW2. She denied the
suggestion that deceased Subodh gave a telephonic call through
mobile of some-one on the mobile of his brother (brother of
deceased Subodh). However, she admitted that a telephonic call
was received by her at her house and her other son had also
spoken to deceased Subodh. She again stated that Subodh firstly
spoke to his brother and thereafter, he spoke to her. She admits
that Subodh told her over the phone that he has sustained
injuries and he was not in a position to move and drive. She
admitted that there was another person apart from Subodh and
Udit Mann who came but she does not know him. She again
stated that there were only three persons Subodh, Manoj and
Udit Mann and there was no other person who was not known to
her. From this statement, it is apparent that the deceased had
called PW2 and his brother PW3 Manoj on telephone informing
them having sustained injuries. However, PW-2 has not deposed
that Subdh informed her that the injuries have been caused to
FIR No. : 813/05, PS : Nand Nagari Page 34 of 57
35
him by the accused persons but no such information has been
claimed to have been given by him to PW2 and PW3. This
witness has also admitted that she alongwith her husband visited
the Jail once to meet Dr. Vinod (accused). She admitted the
photograph Ex.PW2/DX1 showing her and her husband (PW4).
She also admits photograph Ex.PW2/DX2 showing the
photograph of Arun Kumar at point encircled A and it depicts the
photograph of her husband but could not admit or deny whether
in the said photograph, her husband was shown receiving money
from Arun Kumar (nephew of accused Dr. Vinod). She admitted
that in the photograph Ex.PW2/DX3, Ex.PW2/DX4,
Ex.PW2/DX5, Ex.PW2/DX6, Ex.PW2/DX7 and Ex.PW2/DX9 her
husband has been shown counting money in portion encircled
A-1, A-2, A-3, A-4, A-5 and A-7. She also admitted that the
photograph Ex.PW2/DX8 shows Arun Kumar giving money to
her husband and her husband is counting money. She admits
that the photograph Ex.PW2/DX10 shows a wade of currency
notes being taken by her husband in portion encircled as A-8 and
similarly Ex.PW2/DX11 shows her husband having currency
notes in portion encircled as A-9. She admits that photograph
Ex.PW2/DX12 shows her husband putting currency notes in the
pocket of his shirt in the portion encircled as A-10. She admits
that the photograph Ex.PW2/DX13 shows her husband writing
with a pen in his hand in portion encircled as A-11. The relevant
CD Ex.PW2/DX14 has been played in the court in the present of
the witness. In reply to the suggestion given to her regarding the
above-photographs showing her husband receiving and counting
FIR No. : 813/05, PS : Nand Nagari Page 35 of 57
36
money from Arun Kumar and her visit to accused Dr. Vinod at
Central Jail Tihar, PW2 had taken the plea that the accused had
threatened them to compromise the matter but no complaint in
this regard has been made to police or any other authority.
34. PW3 Manoj Kumar is the brother of deceased Subodh who
deposed that some portion of his statement recorded by the
police was not his correct statement and they were exaggerated.
He deposed that on 01.11.2005, the day of Deepawali Festival,
his deceased brother had borrowed his motorcycle for bringing
the stitched clothes from Tailor. He has not mentioned the
Registration No. of the motorcycle nor produced any document to
prove that motorcycle belonged to him, whereas, PW2 has
deposed that the motorcycle belonged to her husband, which is a
contradiction. PW3 has deposed that his deceased brother was
having a love-affair with a girl namely Rashmi. According to PW3,
he reached at his house at 12.30 AM (night) and at that time, his
mother i.e. PW2 was frightened who told him that she received a
phone call from some-one that in front of his house, Subodh was
lying in injured condition. PW3 was trying to retrieve the
telephone no. from the land-line but in the meantime, another call
was received from some person who told the PW3 to remove
Subodh from near his house, otherwise, he will call police on 100
number. The name, address and telephone number of that caller
have not been mentioned by PW-3 and there is no explanation
how PW3 went to the place of alleged occurrence to bring the
injured Subodh and Udit Maan. It is also pertinent to mention that
PW2 Roopwati (mother of PW3) has deposed that the call was
FIR No. : 813/05, PS : Nand Nagari Page 36 of 57
37
received from injured Subodh, whereas, PW3 has stated that the
call was received from some unknown person, which is a
material contradiction. PW3 has further deposed that his brother
Subodh was lying on the stairs outside the house of a person
who made a call on telephone, whereas, injured Udit Maan was
lying on the opposite side on the ground and both were having
blood on their bodies. He also claims to have spoken to the
person who opened the door of his house while PW3 was in the
process of picking his brother but he has not explained why he
did not ask the name and telephone number of the caller as well
as his address. These details have not been given by PW3 nor
collected by the IO. The IO has also not made any inquiry in this
regard. PW3 has further deposed that the motorcycle which the
deceased Subodh had taken was lying on the road but PW3 left
his own motorcycle on which he had gone and lifted the
motorcycle which was taken by injured Subodh but has not given
any reason for doing so. PW3 has not mentioned the Registration
Nos. of those motorcycles and it does not appeal to reason why
he left the motorcycle on which he had gone and lifted the
motorcycle on which injured Subodh had gone. PW3 has further
deposed that he made his brother (Subodh) sit on the motorcycle
with the support of wall and thereafter, tried to lift Udit Maan as
his brother was not in a position to get up himself. He further
claimed that he made his brother (Subodh) sit in between himself
and Udit but this statement has not been corroborated by PW1
Udit Maan. PW3 claims that on way back to their house, he
enquired from Subodh who told him that he had gone to the
FIR No. : 813/05, PS : Nand Nagari Page 37 of 57
38
house of accused Dr. Vinod Kumar where he was called but was
allegedly assaulted by the accused persons. However, these
facts have not been corroborated by PW1 who had actually gone
with deceased Subodh. Moreover, it cannot be believed that if the
deceased Subodh was not in a position to get up on his own to
sit on the motorcycle, he could have been in a position to narrate
the facts to PW3 while the motorcycle was running. PW3 further
deposed that he took his brother with the help of Udit Maan to his
house which is located at 2nd floor where Subodh was made to lie
down on a sofa but his entire body was turning blue and
therefore, they borrowed the Ambassador Car of their
neighborer. He has not clarified whether the Ambassador Car
was taken alongwith the driver or some other driver was
engaged. The name of driver has not been disclosed nor any
such person has been examined by the IO nor cited as a
witness. PW3 has further deposed that his parents accompanied
Subodh to hospital and he followed them on motorcycle and the
doctors at the hospital declared him 'brought dead'. PW3
identified the dead body and received the same vide receipt
Ex.PW3/B. He also proved his statement Ex.PW3/A but since,
he was resiling, he was cross-examined by Ld. Addl. P.P.,
wherein, he denied the suggestion that he had stated to the
police in his statement that he had received a telephonic call at
1.00 AM of his brother that he had sustained injuries and was
present at Sewa Dham road and asked him to bring him from
there and he immediately understood that his brother would have
gone to Madhuban Duplex, where, Dr. Vinod Kumar was residing
FIR No. : 813/05, PS : Nand Nagari Page 38 of 57
39
and when he reached at the main gate of Millan Garden, Sewa
Dham Road, he saw many public persons were gathered which
included Dr. Vinod Kumar(accused) and his son Vivek and wife
and that when he stopped his motorcycle and Dr. Vinod saw him,
he got angry and told him to trace his son Subodh Ashiq, he
must have died now and he frightened and returned and when he
reached from Sewadham Road to Fanekhan Road, he found his
brother and his friend Udit lying on the ground. In the cross-
examination by Ld. Defence Counsel, PW3 admits that police
has exaggerated the portion of his statement by recording that he
had gone to the house of Dr. Vinod Kumar where Dr. Vinod
Kumar, his wife, his son Vivek and some other persons were
present and Dr. Vinod Kumar told him to search his 'Ashiq'
brother who might be lying dead somewhere. He added that the
police had stated to him, if the said portion was added in his
statement, it will make the case against the accused persons
strong. He further asserted that he had stated to police that he
reached his house after meeting his friend at about 12.30 AM;
when he reached at his house, he saw his mother in a frightened
condition, who told her that she had received a phone call from
some person; that he was trying to take out the landline number
from ID call details and in the meantime, bell of his landline
phone again rang up and that his brother was lying over the
stairs in front of the house of telephone caller but on
confrontation with his statement Ex.PW3/A, these facts were not
found so recorded. In further cross-examination, PW3 could not
tell the number of the house in front of which his brother was
FIR No. : 813/05, PS : Nand Nagari Page 39 of 57
40
lying in injured condition. In further cross-examination, PW3
stated that his brother was not in conscious state at that time and
again said, that he was not conscious, so that he could get up. A
court question was put to him, to clarify this fact, to which, he
replied that he meant to say that he (Subodh) was not in a
position to talk but was not having strength to get up. This
answer of the witness clearly shows that the deceased Subodh
while he was injured and was allegedly carried by PW3 on
motorcycle, was not in a position to talk and therefore, he could
not have narrated the facts to PW3 while they were travelling on
motorcycle back to the house of deceased Subodh and if the
injured Subodh was not able to speak at the time when he was
lifted from the place of occurrence and since no treatment was
given to him before he was taken to his house, it cannot be
believed that he could have narrated the facts to PW3 Manoj on
way back and also to his family members i.e. PW2, PW3 and
PW4 at their house. This version has not been corroborated by
PW1 Udit Maan, the alleged eye-witness. PW3 has further stated
that he has no conversation with Udit Maan during the transit and
this reply is very strange because he was the best person who
could have narrated the facts to PW3 but strangely, he did not
have any conversation with him. PW3 even does not remember
the registration No. of the motorcycle on which he had gone. It
cannot be believed that if a vehicle is owned by a person, he will
not remember its Register Number. Therefore, the claim of these
witnesses that the deceased Subodh had narrated the facts to
them that accused persons had assaulted him cannot be
FIR No. : 813/05, PS : Nand Nagari Page 40 of 57
41
believed.
35. PW-4 Mukandi Singh is not an eye-witness of the alleged
occurrence. He has deposed that his son Subodh had left the
house saying that he was going to bring his stitched clothes from
tailor at Mandoli at about 7.30 PM but he did not return till
12.30/1.00 AM (midnight). Thereafter, he sent his elder son
Manoj PW-3 to Bank Colony to the shop of tailor and to his
friend's shop to search his son but his elder son returned back at
12.30 Midnight, having failed to trace deceased Subodh. He
claims to have received a telephonic call at 1 Midnight from his
deceased son Subodh which was heard by his wife PW-2 to
whom, his deceased son had told that he was in a bad condition
and was unable to move and that he was confined in a room by
Dr. Vinod, his wife, Rashmi, Vivek, ASI Jalbir Singh and three
other persons namely Kapil, Sandeep and Rakesh Pehlwan who
are real nephews of ASI Jalbir and had given beatings. However,
PW2 and PW3 have deposed that they had received the phone of
some unknown caller and not the phone call from Subodh, as
such, there is material contradiction in the testimonies of PW2,
PW3 and PW4. The statement was also objected to being hear-
say. This witness further deposed that his wife sent her son to
the place from where he had made the telephonic call i.e. Saboli
Road Sewa Dham and his son at about 1.30 AM, came back
alongwith son Subodh and his friend Udit Maan. These facts are
not corroborated by PW2. He has further deposed that his son
Subodh himself climbed upto the flat which is on the 1st floor
where he was laid down on a sofa and he narrated that he had
FIR No. : 813/05, PS : Nand Nagari Page 41 of 57
42
gone to the house of Dr. Uncle referring to accused Vinod,
where, wife of Dr. Vinod Kumar inquired as to who else has
accompanied him and he told that Udit Maan was standing
outside the main gate. Thereafter, she put a latch on the door of
the room from inside and accused Dr. Vinod, his wife, Kapil,
Sandeep and Rakesh Pehlwan who were armed with danda,
rubber of bus tyre, hockey and gave beatings to him. Thereafter,
he was taken to room No. 6, where, he was given further
beatings and his friend Udit Maan was also brought and he was
also given beatings. He fell down on Subodh to save him and
thereafter, he fell sleepy and rest of the version would be told by
Udit. Since the condition of his son was worsening, his wife went
to the neighborer and requested him to take his son to the
hospital on his vehicle, in which, his son (deceased) Subodh
breathed his last on the way to the hospital. These facts have not
been corroborated by PW1 who has admittedly remained present
with deceased throughout. The doctor after examining him also
declared him 'brought dead'. He identified the dead body of his
son and made statement Ex.PW4/A and received the dead body
vide receipt Ex.PW3/B, wrongly recorded as Ex. PW4/B in the
testimony of the witness. In cross-examination, by Sh. B.K
Sharma, Advocate for accused Vinod, this witness admitted that
his deceased son had accompanied Udit Maan on his motorcycle
and he did not get the clothes as same were not ready. He had
asked his son to come at earliest who came at 1.30/1.45 AM
(night). This witness had not seen the tailor's shop nor he was
aware as to where his son had gone from the Tailor's shop
FIR No. : 813/05, PS : Nand Nagari Page 42 of 57
43
before coming to the house. He denied the suggestion that PW-1
Udit Maan had told them that some boys were bursting crackers
at Sewa Dham, on account of which, his son had stopped the
motorcycle and asked the boys not to fire crackers on the road.
Due to which, a quarrel took place. He denied the suggestion that
PW1 took his son Subodh in unconscious condition to GTB
Hospital but he voluntarily added that besides Udit Maan this
witness, his wife and his elder son had gone alongwith Udit Maan
in Maruti Car of Dhama Ji. It is pertinent to mention that PW3
Manoj S/o PW-4 Mukandi had stated that the make of the car
was Ambassador, whereas, PW2 had not stated the make of car.
He had claimed that the said car was driven by Dhama Ji but the
said Dhama Ji was neither examined by the IO nor cited as a
witness. PW3 had claimed that deceased Subodh was not in a
position to even sit on a motorcycle but PW4 had stated that
Subodh in injured condition had gone on his own upto first floor
through stairs. He admits that Udit Maan was also medically
examined by the doctors. This witness admits that the time of
admission of his son and Udit Maan was changed by the police
but he did not make any complaint to any authority in this regard.
He admits that Dr. Vinod Kumar had come to his house to make
his son understand but voluntarily stated that they had
threatened him. He denied that he had demanded Rs. 5 lakhs
from nephew of doctor Vinod Kumar (accused) assuring him of
not taking action against them as they had not committed any
offence. He admits that he had given an affidavit in writing
Ex.PW4/DA which bears his signatures at point A and in his own
FIR No. : 813/05, PS : Nand Nagari Page 43 of 57
44
handwriting. He claimed that the same was got signed forcibly
from him on gun point by Arun Nephew of Dr. Vinod Kumar, his
bhanja and bhenoi whose names he does not know. He admits
that he had not made any complaint to any authority or to court
that his affidavit was got signed or written by him on gun point.
He admits that photo Mark X2 shows nephew of accused Dr.
Vinod Kumar and photograph Ex.PW2/DX1 bears his as well as
his wife's photograph which was taken at his residence and
photo Ex.PW2/DX2 bears his as well as the photograph of Arun
nephew of accused Dr. Vinod Kumar. This witness further admits
that Ex.PW2/DX2 depict that he was holding currency notes in
his hand which were given to him by Arun but voluntarily added
that the currency notes were given on gun point. He admits that
he did not make any complaint to any authority or to court in this
regard. He further admits that Ex.PW2/DX4, 5 and 7 depict that
he was counting the currency notes and photograph
Ex.PW2/DX6 depict the photograph of his deceased Son and he
was shown there to be counting notes. He also admits that in
photographs Ex.PW2/DX8, 9. 10 and 12, he has been shown to
be counting the notes. He admits that the photograph
Ex.PW2/DX13 shows him signing the affidavit but he has not
made any complaint to any authority or to court in that regard.
He further stated that he and his wife were forcibly taken to Tihar
Jail to meet Dr. Vinod Kumar. He denied the suggestion that he
had demanded money from Dr. Vinod Kumar in jail as he was
innocent. He voluntarily added that he was forcibly taken by
Arun. He admits that accused Ajit has been discharged by the
FIR No. : 813/05, PS : Nand Nagari Page 44 of 57
45
court and he had given the affidavit Ex.PW4/DB in his own
handwriting to accused Ajit but voluntarily added that it was
forcibly got signed. He admits that his wife had given affidavit
Ex.PW4/DC to accused Ajit. He has voluntarily stated that these
affidavits were got forcibly written and signed but he had not
made any complaint to any authority in this regard. He admitted
that he came to know about the other accused persons except
accused Dr. Vinod Kumar only when they were attending the
court and Udit Maan had told him about them. However, Udit
Maan himself has resiled and has not identified the accused
persons and has not corroborated the prosecution version.
36. The plea taken by PW4 Mukandi Singh that his photographs and
his wife's photographs were taken forcibly under threat; that his
own and his wife's signatures were taken under threat and they
had been forcibly taken to Central Jail Tihar to meet accused
Doctor Vinod Kumar, does not appeal to reason as he had not
made any complaint in this regard to any authority and there was
no reason for not doing so.
37. DW-1 Ct. Neel Kamal has been examined by accused persons,
who has produced the file containing the complaint of Sh.
Mukandi Singh addressed to DCP Crime Branch Lodhi Garden
Delhi dated 16.06.2008. He has proved on record the photocopy
of same Ex.DW1/A running into 8 pages. He also deposed that
his complaint was sent by DCP Crime and Railways to DCP N/E
vide letter Ex.DW1/B from where it was further sent to ACP
Seemapuri with endorsement Ex.DW1/C and was assigned to
FIR No. : 813/05, PS : Nand Nagari Page 45 of 57
46
IO/SI Ajay Singh Negi who after inquiry submitted the report
Ex.DW1/D. In fact, this witness was also examined as DW-7,
wherein, he proved the summoned record with respect to the
complaints made by Dr. Vinod Kumar Sharma to the DCP which
is Ex.DW7/A and the inquiry report Ex.DW7/C (2 pages).
38. The said report Ex.DW1/D, submitted by the IO/SI Ajay Singh
Negi shows that he had reported that a major development took
place during the trial of the case when the complainant Mukandi
Singh (PW4) was caught on camera by the stingers of Star News
when he was taking Rs. 5 Lacs for deposing in favour of
accused persons. The recording was telecast in Star News
several times. The complainant again started giving such
complaints to create pressure on the accused persons. The State
is not responsible at any stage regarding the said developments
as (PW4) Mukandi himself had destroyed the case. The IO had
also written in his report that all the accused persons namely Dr.
Vinod Sharma, Kapil, Ajeet and Rakesh @ Pehlwan were
arrested in this case and all were present on bail as all the
material witnesses including the complainant turned hostile
during their evidence in the Court. If the complainant PW4
Mukandi Singh could make the complaint Ex.DW1/A running into
8 pages to DCP Crime and Railway, then it cannot be perceived
that he could not make any complaint against the accused
persons with respect to the alleged taking of photographs of
complainant Mukandi Singh and his wife, writing and signing
their affidavits under any threat or pressure from the accused
persons and taking them to the Central Jail Tihar to meet
FIR No. : 813/05, PS : Nand Nagari Page 46 of 57
47
accused Dr. Vinod Kumar Sharma. The plea taken by PW4
appears to be baseless and it cannot be said that he had not
voluntarily written and signed the affidavit, had not appeared for
photograph willingly and he and his wife had not visited the
Central Jail Tihar out of their own volition.
39. DW-8 Vimal Kaushik Crime Head, India TV has been examined
by the accused persons, who has deposed that on 03.10.2006, a
call was received by him from his office informing to call one
Arun Sharma on phone No. 9810932244, as he wants to give an
information that his relative has been falsely implicated in murder
case. He called Arun Sharma who told him that father of the
deceased was demanding Rs. 5 Lacs and he could produce him
before him for inquiry and accordingly, he met said Arun Sharma
who called Mukandi Singh and he heard the conversation on
speaker phone, wherein, Mukandi Singh had said that he had
already taken Rs. 1 Lacs and requires the balance amount. He
asked Arun Sharma to fix the time after two-three days at his
residence. Accordingly, the date was fixed as 05.10.2006 for
meeting at residence of Arun Sharma and he went to his
residence and fixed hidden cameras in his house, where,
Mukandi Singh came at about 5.30 PM. He recorded the
conversation in which Mukandi Singh said that he had already
received Rs. 1 Lac and wanted Rs. 1 Lac more and balance after
release of accused persons on bail. He also took out a paper
from his pocket, on which, it was written that Dr.Vinod and other
accused persons were not at fault and were not involved in the
murder of his son. He also told that if Dr. Vinod was guilty
FIR No. : 813/05, PS : Nand Nagari Page 47 of 57
48
himself, Mukandi Singh and his wife would not have gone to
meet Dr. Vinod Kumar in Jail. Mukandi Singh also told that his
son has died in some accident. He also proved the photograph
Ex.PW2/DX4, identifying Mukandi Singh. Mukandi Singh also
called Udit Maan on telephone who also came and sat there and
DW8 identified said Udit Maan in the photograph Ex.DW8/D1 and
said Udit Maan told that he did not know Dr. Vinod Kumar earlier
and due to injury, he does not know what statement had been
given by him but accused Dr.Vinod Kumar and other accused
were not involved in the murder of son of Mukandi Singh. He
proved the photograph Ex.DW8/D2, showing the anchor of
Sansani namely Sh. Shrivardhan Triwedi. He filed the Sting
Operation in the office Bag Films to telecast the said Sting
Operation on Star News, which, they did and a live telecast was
also done in which, he had appeared and told everything. He also
proved the CD Ex.DW8/D3. He was also cross-examined by Ld.
Addl. P.P. but his testimony could not be impeached.
40. DW-9 Arun Kumar Sharma has also corroborated the version of
DW-8 and their testimonies corroborate the facts of PW4
Mukandi Singh and his wife visiting the accused Dr. Vinod Kumar
in Central Jail Tihar as well as the fact that they were
photographed in the Sting Operation and PW-4 Mukandi Singh
was receiving money from Arun Sharma DW-9.
41. The testimonies of DW8 and DW9 are also entitled to be given
equal treatment and have to be treated with same respect as
given to the Prosecution Witnesses. The authority cited as Ashok
FIR No. : 813/05, PS : Nand Nagari Page 48 of 57
49
Narang Vs. State 2012 (1) JCC 482, relied by Ld. Defence
Counsel, is fully applicable in this case.
42. PW-21 Sh. Rajesh Kumar Singh, the then Ld. M.M. has been
examined as PW-21 who has proved the TIP proceedings
Ex.PW21/A alongwith his certificate Ex.PW21/B in respect of
accused Sandeep conducted by him at Central Jail Tihar, where,
the alleged eye-witness Udit Maan failed to identify accused
Sandeep.
43. Dr. Parmeshwar Ram, CMO has been examined as PW-13 who
has proved the MLC Ex.PW13/A in respect of deceased Subodh
Kumar prepared by Dr. Gilley Bhutia. He was cross-examined on
30.09.2011 and my Ld. Predecessor made following observation :
"There are three impressions on the
summoned record of the MLC No. A-4821/05,
out of which one is of the MLC NO.A-4821/05
of the deceased Subodh, and second is of MLC
No. A-4820/05 and the third impression is
having some particulars which not found
preceding 10 MLCs. The MLC which is
concerned with the present case when
compared with its carbon copy brought, certain
differences were noticed. In the middle of MLC
words 2.11.2008- and 5.35 is not mentioned
and at the bottom words PENDING
INVESTIGATION are also not mentioned.
There is cutting at the portion where words
FIR No. : 813/05, PS : Nand Nagari Page 49 of 57
50
dead body sent to mortuary, A/E is mentioned
over to. The second impression is of the MLC
which is immediately previous to the MLC No.
A-4821/05 which is at the portion where
alleged h/o assault and one line below is
mentioned. There is third impression with
respect to some other case where the father's
name is written as Mahesh Chand, aged (sic)
is written as 25 and brought by is written as Ct.
Karan Pal 519/NE/PS Seemapuri, the address
of the patient is also written as C-252, Old
Seelampur, and it appears that the lighter
impress (sic) is with respect to that MLC which
is below the dark impression of this MLC in the
entire MLC. However, the said particulars could
not be found in ten preceding MLCs. The MLC
which is immediately previous to this MLC is
having time of 2:30 a.m. in the name of Ashok
s/o Ram Babu, R/o H. No. 386, Phase-V,
Karawal Nagar, Delhi and subsequent MLC is
of Udit Mann and time of the same is 6:08 a.m.
The reduced copy of the carbon MLC No.
A-4821/05 is retained in the judicial file which is
Ex.PW-13/A1 and original carbon copy which is
in register is signed by court. The reduced copy
of the carbon MLC No. A-4822/05 of patient is
also retained in the judicial file which is
FIR No. : 813/05, PS : Nand Nagari Page 50 of 57
51
Ex.PW-13/B1.
Court Q. : The doctor is asked, can you explain
the lighter impression of which MLC ?
Ans. : I cannot say as I have not prepared the
same.
The word at place of timing is 5:35 and the digit
'5' according to me is '5'. It is correct that digit
'5' mentioned in other place is different. I
cannot say the digit '2' is altered to make it as
digit '5'
Court Observation. : It appears that the in
running hand while writing it was written as 2
but simultaneously it was changed to 5.
It is incorrect to suggest that this 5 has been
made subsequently after writing 2 at the
instance of some outsider agency."
44. A careful comparison of original MLC No. A-4821/2005
Ex.PW13/A (in fact on the original document Exhibit No. has not
been mentioned) and the reduced carbon copy of MLC No.
A-4821/05 Ex.PW-13/A1 in respect of deceased Subodh Kumar
shows that many changes have been made by some unknown
person in the later document. It may be noted that as per the
prosecution case, both the injured Subodh and Udit Maan were
taken to GTB Hospital at same time. However, the MLC No.
A-4822/05 of Udit Maan Ex.PW13/B shows that he was
examined at 06.08 AM on 02.11.2005, whereas, the MLC No.
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52
A-4821/05 in respect of Subodh is shown to have been prepared
on same day before Udit Maan. The time has been mentioned in
such a way that it gives the impression that attempt has been
made to change the time from 2.35 AM to 5.35 AM and there is
possibility of tempering of this document as my Ld. Predecessor
had recorded the observations regarding the changes in the main
MLC and the reduced carbon copy of MLC in respect of
deceased Subodh Kumar.
45. DW-4 Yashpal Singh has deposed that accused Sandeep and
Kapil were residents of his village and ASI Jalbir was also
resident of their village and were related to each other. ASI Jalbir
was uncle of accused Sandeep and Kapil and Sh. Raghu Nath
brother of Jalbir sells illegal liquor in village who is neighborer of
accused Sandeep and Kapil. There used to be quarrel between
Sandeep, Kapil and Raghunath on the sale of liquor and once the
dispute escalated and resulted in beatings and a panchayat was
held. When the matter was sough to be resolved but ASI Jalbir
threatened in the panchayat that he was ASI in Delhi Police and
will see the accused Kapil and Sandeep. They have been falsely
implicated in this case by ASI Jalbir as they both were at their
village on Diwali day i.e. the date of alleged occurrence. He is not
related to the accused persons. He has denied the suggestion
given by Ld. Addl. P.P. that accused persons were not present at
the village on the Diwali day. No evidence regarding presence of
any of these accused at the place of occurrence at the time of
alleged occurrence has been adduced by the prosecution. No
oral or documentary evidence has been adduced by the
FIR No. : 813/05, PS : Nand Nagari Page 52 of 57
53
prosecution to establish that accused Sandeep, Kapil and
Rakesh are related to accused Dr. Vinod Kumar. None of them
was arrested from the spot at the time of alleged occurrence.
PW-15 IO/Inspector Bahori Singh has deposed that accused
Kapil and Rakesh were arrested at the instance of Udit Maan but
Udit Maan himself has turned hostile and has not identified these
accused to be those who had assaulted the deceased or even
Udit Maan. The prosecution has claimed that they were residing
at Plot No. 6, Madhuban Duplex, Milan Garden, Delhi but no
documentary evidence has been placed on record, to establish
that either they were owner or living in the said premises as
tenants. No oral evidence has been adduced by the prosecution
to even suggest that they were actually residing in above-said
property and their arrests have been shown from outside
Sarvodaya Super Hospital, Sewa Dham Road, Krishna Vihar,
Loni, Ghaziabad. PW-15 IO/Inspector Bahori Singh had deposed
that on 30.11.2005, the complainant had sent one person at the
Police Station to inform that accused person were available at
Sarvodaya Nursing Home from there, they were arrested but the
arrest memo Ex.PW6/A and PW6/B in respect of accused Kapil
and Rakesh respectively show the date of their arrest as
31.12.2005 and not 30.11.2005, which suggest that these
documents have prepared to show the completion of the
investigation.
46. The Serological Report Ex.PW7/B indicates the blood group as
AB but there is no comparative serological test report that blood
group of deceased Subodh was AB, whereas, on the other
FIR No. : 813/05, PS : Nand Nagari Page 53 of 57
54
exhibits, the blood group test was reported as inconclusive.
47. The main eye-witness i.e. PW1 Udit Maan has turned hostile and
has not named the accused Dr. Vinod Kumar, Kapil, Rakesh and
Sandeep. In fact, in the TIP proceedings Ex.PW21/A in respect of
accused Sandeep, PW Udit Maan has stated that the offender
was not amongst the persons shown to him (in the TIP
proceedings). PW-1 Udit Maan has not supported the
prosecution version. He turned hostile and was cross-examined
by Ld. Addl. P.P but he did not support the prosecution case.
PW2, PW3 and PW4 are the relatives of deceased Subodh, they
are not eye-witnesses nor are witnesses of last seen. They have
claimed that deceased Subodh had given dying declaration to
them, however, all of them are interested witnesses being
relatives of the deceased. The dying declaration has to be
appreciated with due care and caution. In authority reported as
'Sharad Birdhichand Sarda, Appellant Vs. State of
Maharashtra, Respondent, AIR 1984 Supreme Court 1622',
Hon'ble Supreme Court has held that :-
"In view of the close relationship and affection any person in the position of the witness would naturally have a tendency to exaggerate or add facts which may not have been stated to them at all. Not that this is done consciously but even unconsciously the love and affection for the deceased would create a psychological hatred against the supposed murderer and therefore, the court has to examine such evidence with very great care and caution. Even if the witnesses were speaking a part of FIR No. : 813/05, PS : Nand Nagari Page 54 of 57 55 the truth or perhaps the whole of it, they would be guided by a spirit of revenge or nemesis against the accused person and in this process certain facts which may be imagined to have been stated unconsciously by the witness in order to see that the offender is punished. This is human psychology and no one can help it."
48. There are inherent contradictions in the testimonies of PW2, PW3 and PW4. PW2 and PW3 have claimed that they had received a call from some unknown persons. Whereas, PW-4 has claimed that PW2 and PW3 had received a call from Subodh while he was in injured condition, which is a material contradiction. PW4 has himself not received the call. None of them has claimed that deceased Subodh had informed them on phone that he was assaulted by the accused persons but they have merely claimed that they have received information that he was lying in injured condition. PW2 and PW3 have deposed that they received the information from some person on phone but name of that person, his telephone no. and address has not been disclosed by any of them. IO has not examined any such person. PWs 2 and 3 have not disclosed that the said person had told them the place where the injured Subodh was lying. PW3 has claimed that he brought injured Subodh with the assistance of PW1 Udit Maan, whereas, PW1 has deposed that injured Subodh was brought by him with the assistance of some other person. PW2, PW3 and PW4 have also claimed that from their residence, the injured was taken to hospital in the car of the neighborer but neither the said neighborer has been examined by the IO nor he has been summoned in the court to depose that FIR No. : 813/05, PS : Nand Nagari Page 55 of 57 56 his car was actually used in shifting injured Subodh to GTB Hospital. PW2 and PW4 have admitted their affidavits and their photographs in the Sting Operation in which, PW4 has also admitted to be counting money purported to have been given by DW9 Sh. Arun Sharma. The plea taken by PW2 and PW4 that they were threatened or pressurized to do so, cannot be believed because they have admittedly not made any complaint in this regard, although, they were free to do so. PW2 and PW4 would not have executed the affidavits in favour of accused Dr. Vinod Kumar nor they would have gone to Central Jail Tihar to meet him and also to receive money from nephew of Vinod Kumar Mr. Arun Sharma, if accused Dr. Vinod Kumar was the person who alongwith other accused persons had assaulted deceased Subodh. Therefore, the testimonies of PW2, PW3 and PW4 appear to be dubious and does not inspire confidence. In authority reported as "Kailash Gour & Ors. Vs. State of Assam" AIR 2012 Supreme Court 786, Hon'ble Supreme Court has reiterated the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion; howsoever, strong can never take the place of proof. There is indeed a long distance between accused 'may have committed the offence' and 'must have committed the offence' which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. The prosecution was required to prove on record the guilt of the accused persons FIR No. : 813/05, PS : Nand Nagari Page 56 of 57 57 beyond all reasonable doubt but the prosecution has failed to discharge its obligation. PW-1 Udit Maan has also denied that accused persons had caused injury to deceased Subodh or to PW-1 Udit Maan himself. The testimonies of PW2, PW3 and PW4 does not inspire confidence and cannot be relied upon to record conviction. Therefore, in my considered view, the accused persons are entitled to be benefit of doubt and acquittal. Accused persons namely Vinod Kumar, Kapil, Rakesh Singh and Sandeep are accordingly acquitted from all the charges U/s 323/34 IPC and 302/34 IPC giving benefit of doubt. They are already on bail in this case. Their bail bonds are cancelled. Sureties are discharged. Case property, if any, be destroyed, after the expiry of the period of appeal. File be consigned to Record Room.
Announced in the open court T.S. KASHYAP
today i.e on 20.04.2012 ASJ-04/NORTH-EAST/DELHI
FIR No. : 813/05, PS : Nand Nagari Page 57 of 57