State vs Manoj Kumar on 4 January, 2010

[Cites 22, Cited by 0]

Delhi District Court

State vs Manoj Kumar on 4 January, 2010

                                     -::1::-                  FIR No 226/08
                                                               PS: Timarpur


          IN THE COURT OF SHRI RAJ KUMAR CHAUHAN
       ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
               TIS HAZARI COURTS:(WEST) DELHI

                               FIR no. 226/08
                          Police station Timarpur
                     U/s 302 IPC and 25/54/59 Arms Act
                          State V/s Manoj Kumar


     1. Session Case no.         :             SC no. 11/08
     2. Name of the accused : Manoj S/o Shri Sripat R/o B-55,
     and parentage            Gokul Puri, Delhi.
     3. Date of commission of :                .06/05/2008
     offence
     4. Arguments concluded :                  14/12/2009
     on
     5. Date of Judgment         :             24/12/2009
     6. Date of final order      :             .04/01/2010


JUDGMENT

1) The prosecution in brief is that on 6/5/2008 at about 8.30PM complainant Deshraj while returning from his office of Nokia Company, Pitampura Delhi went to house of his sister at F- 195, Gali no. 6, Wazirabad Delhi; at about 10.15 PM he went to call his brother-in-law from the outside street for having dinner and found that one Manoj residing in the same street at Wazirabad was abusing his brother-in-law by saying that he was objecting to his stay at Wazirabad; his brother-in-law was objecting to the said behaviour of Manoj and in the meantime Manoj became agitated -::2::- FIR No 226/08 PS: Timarpur and aggressive; Manoj brought out a knife from his trouser's pocket and attacked his brother-in-law with it by saying that he would finish him; the knife blow was given at left upper leg of his brother-in-law Sanjiv Kumar who fell down and blood was spread all around; he raised alarm and Manoj fled away from the spot; many people from the locality gathered and one person Suresh helped Sanjiv to sit on his motorcycle and one Abid gave support him by sitting on his back and rushed him to hospital; Sanjiv was declared brought dead in the hospital. In the meantime complainant Deshraj also reached in the hospital. On his statement case u/s 302 IPC was registered. The spot of incident was inspected by mobile crime team and photographs were also taken; at the instance of complainant the site plan was prepared. On 14/5/2008 accused Manoj was surrendered before the court where he was interrogated and arrested. During police custody remand he has made a disclosure statement and led the police party to the Ganda Nala Wazirabad near outer Ring road bus stand road and got recovered the weapon of knife from the bushes. After completion of investigation a challan was filed.

2) On 13/2/2009, charge under section 302 IPC and under -::3::- FIR No 226/08 PS: Timarpur section 25 and 27 Arms Act, 1959 was framed against the accused to which he pleaded not guilty and claimed trial.

3) In support of its case the prosecution has examined in total 27 witnesses.

4) The brief summary of the deposition of the prosecution witnesses is as under:-

I. FORMAL WITNESSES PW4 Ashok Kumar is the brother-in-law of deceased Sanjiv who identified his dead body in the mortuary and his statement was recorded by the police which is proved as Ex.

PW4/A. PW5 Ct. Manoj Kumar has deposed that on 6/5/2008 he was posted at Police Control Room, Police Headquarter from 8.00PM to 8.00AM and in the night at about 22.41 hours he received a call that at Gali no. 6, house no. 195, near Modern school, Wazirabad Village one person was stabbed with knife and he was taken to Trauma Center; he written the information on the PCR form and passed the same on the Net and proved the same as -::4::- FIR No 226/08 PS: Timarpur Ex.PW5/A. PW7 Ct. Rajender Singh is the DD writer who deposed that on 6/5/2008 at about 10.43 PM he had received a message from the wireless operator that one person was stabbed with knife in the Gali no. 6 house no. 195, Wazirabad village, near Modern school and sent to Trauma center; he has recorded the DD no. 85 Ex.PW7/A and informed SI Bhupender Singh on wireless. He further deposed that in the night at about 11.42PM Duty Constable Subhash from Trauma Centre Hospital informed on telephone that Sanjeev Kumar S/o Shri Narain Dass R/o F-195 Gali no. 6, Wazirabad Village got admitted in an injured condition by Abid S/o Nazir Ahmad has been stabbed with knife; he has recorded the DD no.91 and passed the said information to SI Bhupender Singh on wireless set, the true copy of DD no. 91 B Ex.

PW7/B. PW8 HC Sunder Lal who is photographer deposed that on 7/5/2008 he had gone to Gali no. 6, F-Block, Wazirabad alongwith Incharge Crime team SI Brahm Singh and had taken eight photographs on the pointing out of the Investigating Officer. He has proved the negatives which are Ex. PW8/1 to Ex.PW8/8 and positives Ex. PW8/9 to Ex. PW8/16.

-::5::- FIR No 226/08

PS: Timarpur PW10 SI Brahm Singh has deposed that on 6/5/2008

-07/5/2008 at about 1.25 AM on receiving a wireless message from Control Room he had reached at house no. F-195, near Transformer, Gali no. 6 Wazirabad alongwith crime team and came to know that injured Sanjiv Kumar was already removed to the trauma center; he found blood near the transformer, electric pole and empty boundary wall of an open plot and examined the site and got it photographed by HC Sunder Lal and he prepared the report Ex.PW10/A. PW13 HC Ashok Kumar deposed that on 7/5/2008 he was posted as duty officer from 12.00 am (night) to 8.00 AM; on that day at about 12.45 AM he received a rukka through Ct.Devender sent by SI Bhupender and he recorded the FIR and proved the computerised copy of the same as Ex. PW13/A and also made endorsement on the rukka Ex. PW13/B. He has proved the DD no. 4A regarding Kayami and the DD no. 5A Bandi Kayami dated 7/5/2008 which was recorded by him which are Ex. PW13/C and Ex. PW13/D. PW14 Ct. Surender Kumar deposed that on 7/5/2008 he was posted at Police Station Timarpur as DD writer from 12.00AM to 8.00AM; on that night he received a call from Trauma -::6::- FIR No 226/08 PS: Timarpur Center hospital from Duty Constable Subash regarding death of Sanjiv Kumar who was admitted in the hospital and he recorded the DD in that regard at serial no. 3B and proved the true copy of the same as Ex. PW14/C. PW15 Ct. Subhash deposed that on 7/5/2008 in the night duty officer handed over to him the copy of the FIR for delivering the same to the Senior officers and he delivered the same.

PW16 Ct. Jitender has corroborated the version as deposed by PW12 regarding surrender, arrest and disclosure statement and medical examination of the accused.

PW17 HC Bijender deposed that on 7/5/2008 he was posted as MHC(M) and on that day Inspector Ram Avtar Meena had deposited four sealed parcels alongwith sample seal vide entry no. 3343 Ex. PW17/A. He further deposed that on 15/5/2008 Inspector Ram Avtar Meena deposited one sealed parcel sealed with the seal of RA vide entry at serial no. 3353 in register no. 19 Ex.PW17/B and on 27/6/2008 he handed over five sealed parcels alongwith two sample seals to Ct. Chiranji Lal for depositing the same to FSL, Rohini vide RC no. 106/21 and proved the entry in that regard Ex. PW17/C; on 8/11/2008 he handed over four sealed -::7::- FIR No 226/08 PS: Timarpur parcels alongwith one envelope sealed with the seal of FSL, Delhi to the new MHC(M) Anish Kumar who had taken over the charge from him and made entry in this regard Ex. PW17/D. He further deposed that on 22/5/2008 one parcel sealed with the seal of RA was handed over to Inspector Ram Avtar Meena for getting opinion vide entry Ex.PW17/E and on the same day the sealed parcels alongwith sample seal of AAA I/C CMO Subzi Mandi was received from Inspector Ram Avtar Meena vide entry in register no. 19 Ex. PW17/F; he has also proved the photocopy of RC no.106/21 as Ex. PW17/G and photocopy of acknowledgment of case acceptance as Ex.PW17/H. He further deposed that so long the sealed parcels remained in his possession same were intact and not tampered with in any manner.

PW19 ASI Udey Vir Singh has proved the DD no. 17 dated 22/5/2008 which was recorded by Inspector Ram Avtar Meena in his own handwriting which is proved as Ex. PW19/A and on the same day DD no. 21 was also recorded by Inspector Ram Avtar Meena in his own handwriting in the Rojnamacha-A and proved the same as Ex. PW19/B. PW20 HC Subash of Police Station Gokul Puri deposed that he has working in the Police Station as Record Muhorar and -::8::- FIR No 226/08 PS: Timarpur proved his detailed report Ex. PW20/A regarding involvement of accused in 9 cases in different Police Station.

PW22 Inspector Ram Pal Singh has deposed that on 05/8/2008 he was posted as SHO and on that day he had recorded statement of Shri Deshraj u/s 161 CrPC and after completion of investigation he has prepared the challan. He was again examined as PW25 on 04/12/2009 and his cross-examination also conducted.

PW23 SI Manohar Lal, draftsman deposed that on 24/6/2008 he alongwith Investigating Officer visited the place of occurrence and on the pointing out of complainant he prepared the rough notes of the site on the basis of which he prepared scaled site plan which is proved as Ex. PW23/A. PW24 Shri Nanak Chand, LDC Home department (Press Branch), Delhi Secretary has proved the copy of the notification of Delhi Administration dated 29/10/1980 Ex.PW24/A. II. MATERIAL WITNESSES PW1 Deshraj is the complainant and deposed that on 06/5/2008 at about 8.30 PM he had gone to his sister's house at F-195, Gali no. 6, Wazirabad while returning from his job; he was -::9::- FIR No 226/08 PS: Timarpur sitting at her sister's house and after preparing dinner by her at about 10.00 PM his sister asked him to call his brother-in-law from the street outside; he saw that one boy namely Manoj was arguing and abusing his brother-in-law Sanjiv; Manoj was saying that Sanjiv had objected him to reside in Wazirabad and wanted him to live in Gokulpuri and he was saying his brother-in-law that "main aaj tera kaam tamaam kar deta hoon"; accused Manoj brought out a knife from his pant's right pocket and gave a blow to his brother-in-law Sanjiv on his left thigh; his brother-in-law started bleeding heavily and he was perturbed (ghabra gaya); his brother-in-law fell down on the ground and he raised alarm on which accused ran way from the spot; in the mean time one Suresh and Abid resident of the same area came there; Suresh brought his motorcycle and helped his brother-in-law Sanjiv and went to Trauma Center near ISBT; many public persons gathered on the spot and he went inside the house of his sister and took some money and went to trauma center on his bike; he reached at Trauma center at about 11.00PM and he came to know that his brother-in-law Sanjiv had expired; at about 11.30PM police reached in the Trauma Center and he told about the incident to the police official Bhupender who recorded his statement -::10::- FIR No 226/08 PS: Timarpur Ex.PW1/A; on the next day, he went to Subzi Mandi mortuary for taking dead body after postmortem and identified the dead body vide memo Ex.PW1/B and he has also proved the handing over memo Ex.PW1/C regarding dead body. He further deposed that on the next day police came to his sister's house and asked him about the place of incident; he pointed out the place of incident and his statement was record; on 14/5/2008 at about 5.00PM police officials along with accused came to his sister's house and asked about the accused and on seeing him he told that he was the boy who had inflicted injury to his brother-in-law on 06/5/2008; accused Manoj took the police near Transformer on the corner of the street and pointed out the place of incident and his statement was recorded by the police; on 05/8/2008 he received the telephonic message from the police officer Ram Avtar Meena and he reached at the spot and pointed out the place of incident and the police officer recorded his statement and prepared the site plan.

In his cross-examination by Ld defence counsel he has stated that he used to visit to his sister's house once or twice in a week; he always used to visit during night; when he was on weekly leave, he used to visit during the day; on the day of incident, his -::11::- FIR No 226/08 PS: Timarpur sister asked him to call his Jija Sanjiv from outside for dinner; she asked him to call his Jija from the place on the corner of the street where he used to sit on and off with his known friends; he did not try to intervene Manoj while he was abusing his brother-in-law because when he was saying that his brother-in-law was objecting to his staying in Wazirabad, in the meanwhile he brought out a knife from his pocket and stabbed his brother-in- law; he was at a distance about 3-4 steps when he stabbed his brother-in-law; he was at a distance of 3-4 steps when he (accused) stabbed his brother-in-law; he knew the accused earlier because on the Holi day before the incident when he alongwith his brother-in-law and other family members were enjoying the Holi by dancing and singing, accused Manoj came there drunk and took quarrel and abused them. He further stated in cross-examination that the spot of incident was not visible from the house of his sister and it can be seen only after coming in to the street; the light was coming from an electric pole on the spot of the incident; he did not chase the accused after seeing him having stabbed his brother-in-law as he was supposed to look after his Jija and not to chase the assailant; the accused had already run away before the crowd of 30-40 people gathered on the spot; after the -::12::- FIR No 226/08 PS: Timarpur incident he went to the house of his sister and then went to hospital on bike and reached at hospital by 11.00pm; in the hospital his brother-in-law Jaspal Singh and his friend Rohit met him and he had told them that Manoj had given knife blow to Sanjiv; after seeing the accused stabbing his brother-in-law, he became nervous and raised alarm;

PW2 Suresh Kumar has deposed that on 06/5/2008 at about 10.20 PM he was in his house and heard a noise outside and came out and saw that Sanjiv who was residing in the same street was lying on the ground and crowd was gathered and he was bleeding heavily; he immediately made a call at number 100 from his mobile phone; he informed the police control room that he was taking the injured to Trauma Center; he took the injured on his bike alongwith Abid neighbour of Sanjiv to Trauma Center; they reached to Trauma Center at about 10.40 PM; Deshraj also reached there; he alongwith Abid returned to their home and police enquired from them. He further deposed that on 7/6/2008 in the morning police came to him and enquired about taking the injured to the hospital. He has correctly identified the accused saying that he used to live in the same area.

In his cross-examination by Ld counsel for the accused -::13::- FIR No 226/08 PS: Timarpur he had denied the suggestion that Deshraj (PW1) had not reached in the hospital in his presence and categorically stated that "Deshraj was present even at the place of incident and told us that you go to hospital and he will be coming shortly".

PW3 Abid has deposed that on 6/5/2008 at about 10.15PM wife of Sanjiv came to his house and said someone has caused injury with knife to her husband and he immediately rushed outside the house and saw that Sanjiv was sitting on the ground on the corner of the street; he covered the place of injury with a cloth (patti Bandh di); Suresh other neighbour had immediately brought his motorcycle and helped Sanjiv to sit on the motorcycle between him and Suresh and then took him to hospital; relatives of the Sanjiv reached at the hospital.

In his cross-examination he has stated in reply to a court question that he knew Deshraj who was brother-in-law of Sanjiv and he had met Deshraj in the hospital; he had not seen Deshraj on the spot; the house of Sanjiv was very near to the spot of incident; there was light from the pole at that time.

PW6 Ct. Raj Kumar deposed that on 15/5/2008 he joined the investigation with SI Bhupender and Ct. Joseph in the present case; accused Manoj present in the court was taken to -::14::- FIR No 226/08 PS: Timarpur Police Custody remand by the Investigating officer; in the morning he was interrogated by the Investigating officer and he told that he had thrown the knife in the bushes in Wazirabad near Ganda Nala; they reached there and got recovered the knife; accused had also made disclosure statement to the Investigating officer Ex. PW6/A; the knife was taken to police possession vide memo Ex. PW6/B; he brought the knife from the bushes and the Investigating officer took the same from the accused; Investigating officer prepared the sketch of knife as Ex.PW6/C; the length of knife was 24 cm; length of the edge was 11cm; length of handle was 13 cm which was having a button in middle; knife was kept in a cloth pullanda by Investigating officer and sealed with his seal; accused was thereafter taken to Aruna Asaf Ali hospital for his medical examination. He has also identified the knife as Ex. P3 stating that it was recovered by the accused from the bushes in Wazirabad Village.

In his cross-examination by Ld counsel for accused he has stated that the distance between the place of recovery and the Police Station was about 1KM; he cannot say if Investigating Officer had taken any fingerprints from the knife got recovered as he was busy in some other work; they went to the spot in TATA-407 a -::15::- FIR No 226/08 PS: Timarpur government vehicle bearing no. DL-1D-5116 and the vehicle was stopped at a distance of 5 yards from the place of recovery; the writing work including site plan of the place of recovery was prepared while sitting by the side of the road; it took about 1½ hours at the spot for carrying out the proceedings; Investigating Officer has prepared the recovery memo Ex. PW6/B in his own handwriting.

PW11 Ct. Chiranji Lal deposed that on 07/5/2008 he alongwith Inspector Ram Avtar Meena went to Village Wazirabad regarding DD no.5A; on reaching there the blood lying on the spot was taken as a sample in a plastic container by Investigating officer Inspector Ram Avtar and converted into a cloth parcel and sealed with the seal of RA and seized vide memo Ex. PW11/A; the earth control sample was also taken from the spot and converted into a cloth parcel and sealed with the seal of RA and seized the same vide memo Ex. PW11/B; SI Bhupender handed over one sealed parcel alongwith sample seal which was seized vide memo Ex. PW11/C by the Investigating officer; thereafter he alongwith Inspector Ram Avtar and SI Bhupender went to the Trauma Centre where proceedings u/s 174 CrPC were conducted by the Investigating officer; after postmortem, the dead body was handed -::16::- FIR No 226/08 PS: Timarpur over to its relatives and one sealed parcel along with sample seal containing the blood sample of the deceased was seized by the Investigating officer vide memo Ex. PW11/D; the sealed parcels were deposited in the malkhana by the Investigating officer. He further deposed that on 27/6/2008, five sealed parcels alongwith 2 sample seals received from the MHC(M) HC Bijender were taken and deposited to FSL, Rohini vide RC no. 106/21 and after depositing the sealed parcels at FSL, Rohini the received copy of RC was handed over to the MHC(M).

PW12 Ct. Joseph has deposed that on 14/5/2008 he was posted at Police Station Timarpur as Constable; on that day he joined the investigation with Inspector Ram Avtar and reached in court room no. 41, Tis Hazari Courts, Delhi from where accused Manoj was taken on one day Police Custody remand by the Investigating Officer and thereafter accused was taken to Aruna Asaf Ali hospital for medical and then he led them to Ganda Nala, Wazirabad and disclosed that he had thrown the knife used in the murder of Sanjiv Kumar in the Ganda Nala but no recovery was effected; thereafter accused led them to Wazirabad village at the place of the incident and pointed out the place where he had stabbed Sanjiv Kumar vide pointing out memo Ex. PW1/D; -::17::- FIR No 226/08

PS: Timarpur accused was brought to the Police Station and was kept in the lockup. He further deposed that on 14/5/2008 he had recorded disclosure statement Ex. PW12/A made by the accused; on 15/5/2008 accused disclosed that he had thrown the knife in the bushes situated at Wazirabad, Outer Ring Road, near Ganda Nala; he joined the investigation with Investigating Officer Inspector Ram Avtar, SI Upender Kumar and Ct. Raj Kumar and on reaching there accused got recovered one buttondar knife from the bushes; Investigating Officer took measurements of the knife and prepared the sketch and converted the same in the cloth parcel and sealed with the seal of RA; accused was arrested vide memo Ex.PW12/B and his personal search was conducted vide memo Ex.PW12/C. He has duly identified the knife Ex P3 stating that it was recovered at the instance of the accused.

PW21 Ct.Devender deposed that on 06/5/2008 he accompanied SI Bhupender on receiving DD no. 75B; on receiving DD no. 85B at about 10.43 PM they reached in Gali no. 6 Wazirabad near Transformer; and noticed that blood was lying on the road there they came to know that the injured was taken to the hospital; meanwhile on receiving DD no. 91B, he alongwith SI Bhupender reached at Trauma Center hospital; where -::18::- FIR No 226/08 PS: Timarpur Investigating officer received the MLC of the injured and injured was declared "unfit for statement" by the doctor; in the hospital Deshraj met them and his statement was recorded by the Investigating officer on which Investigating officer made endorsement and the rukka was handed over to him for registration of case; he went to the police station alongwith rukka and after registration of FIR he came back to the hospital and handed over the rukka and copy of the FIR to the Investigating officer; the information regarding the death of the injured Sanjiv Kumar was received by the Investigating officer vide DD no.3B; his statement was recorded by the Investigating officer .

PW26 SI Bhupender has deposed that on 06/5/2008 he was on emergency duty from 8.00PM to 8.00AM; on receiving DD no.85B he alongwith Ct. Devender reached at the spot and noticed that blood was lying near the transformer and came to know that the injured was shifted to Trauma hospital; he tried to trace an eye witness but not found the same and thereafter he alongwith Ct.Devender reached at the Trauma Center; on reaching there he collected MLC of injured Sanjiv Kumar; the injured was declared unfit for statement; in the hospital complainant Deshraj met them and he recorded his statement -::19::- FIR No 226/08 PS: Timarpur Ex.PW1/A; he made endorsement on his statement Ex. PW26/A and sent Ct. Devender to the Police Station for registration of the case and he went to the spot; after sometime Inspector Ram Avtar Meena alongwith Ct. Chranji Lal and Ct.Devender reached at the spot; the crime team was also reached there and inspected and photographed the spot; Investigating Officer prepared the site plan at the instance of complainant Deshraj; the blood sample and earth control sample was taken from the spot and converted into a cloth parcel sealed with the seal of RA; the seal after use handed over to Ct. Chiranji Lal; the sample were seized vide memo Ex.PW11/A and Ex.PW11/B; he reached trauma center and collected the MLC of injured and one pajama as he was declared dead by the doctor; the sealed pullanda of the pajama of the deceased alongwith sample seal was handed over to Inspector Ram Avtar Meena which he received from the hospital and seized vide memo Ex. PW11/C bears my signature at point-B. Inspector Ram Avtar Meena had recorded the statements of members of crime team. Ct. Devender was deputed at the spot and he alongwith Investigating Officer, HC Chiranji Lal went to Trauma center there the inquest papers, form no. 25.35 (1) (B) Ex.PW26/B was prepared by him and it was signed by the Investigating -::20::- FIR No 226/08 PS: Timarpur Officer. The dead body was taken to Subzi Mandi mortuary for its postmortem; the form of request for postmortem on the dead body was filled by him which was signed by the Investigating Officer Ex. PW18/B; the statements of the witnesses for the identification of the dead body was recorded by him and were signed by the Investigating Officer Ex. PW4/A and Ex. PW1/B; after postmortem the dead body was handed over to its relatives vide receipt Ex.PW1/C; the sealed blood sample of the deceased in an envelope was received vide memo Ex. PW11/D; they tried to trace the accused and again reached at the spot on reaching there the statement of Deshraj and other witnesses namely Abid and Suresh were recorded. From the spot they came back to the Police Station; the case property was deposited in the malkhana by the Investigating Officer in intact condition and his statement was also recorded by the Investigating Officer. He further deposed that on 14/5/2008 the accused surrendered before the court and on the directions of the court he was interrogated and arrested in the present case vide memo Ex. PW12/B and his personal search was conducted vide memo Ex.PW12/C. The disclosure statement Ex.PW12/A made by the accused was recorded; the accused was taken on one day Police Custody remand and he was medically -::21::- FIR No 226/08 PS: Timarpur examined thereafter the accused led them to Wazirabad, near drain at Choraha; there at the instance of the accused they tried to trace out the knife but the same could not be traced on that day; thereafter the accused led them to the place of occurrence and on the pointing out of the accused Investigating Officer prepared the memo Ex.PW1/D bears his signature at point- A and stated that it was the place where he had committed the offence; they continuously enquired from the accused about the weapon of offence but he misled them; on 15/5/2008 the accused was again interrogated and his supplementary disclosure statement was recorded Ex. PW6/A bears his signature at point-B; the accused led them to the bushes situated near the drain at Wazirabad and the accused got recovered one knife lying in the bushes; the knife was opened and the sketch of the same was prepared vide Ex. PW6/C; the total length of the knife was 24 cm; the length of the edge was 11 cm and the length of the handle was 13 cm. The knife was converted into a cloth parcel and sealed with the seal of RA; the seal after use was handed over to him; the knife was seized vide seizure memo Ex. PW6/B; knife was a buttondar; from the place of recovery of knife they came back to the Police Station along with the accused; the accused was again medically -::22::- FIR No 226/08 PS: Timarpur examined and was produced before the Court and he was sent to Judicial custody.

In his cross-examination by Ld counsel for the accused he has stated that on 15/5/2008 the public persons were asked to join at the time of recovery of knife; the place of recovery of knife was at a distance of about 25 steps from the road; the fingerprints of the accused were not lifted from the knife despite that the knife was lifted by the accused and was handed over to the Investigating Officer .

PW27 ACP Ram Avtar Meena has deposed that on 7.5.2008 he was posted at Police Station Timarpur as Inspector Investigating Officer; on that day Ct. Devender at 1.30AM in the night handed over to him a rukka and a copy of FIR for further investigation; after receiving the same he alongwith Ct. Chiranji Lal reached at Gali no.6 Wazirabad village near Transformer; on reaching there SI Bhupender met him and the mobile crime team was also present there; the site was inspected by the crime team and the photographs were also taken at the spot; the report by the crime team was prepared and handed over to him Ex.PW10/A; he recorded the statement of the members of crime team; complainant Deshraj met him and on his pointing out he -::23::- FIR No 226/08 PS: Timarpur prepared the site plan Ex. PW26/DA; the blood sample and earth control sample was taken from the spot and were seized vide memo Ex.PW11/A and Ex. PW11/B and converted into a sealed parcel and sealed with the seal of RA; the seal after use was handed over to Ct.Chiranji Lal; SI Bhupender produced one sealed pullanda containing pajama of the deceased alongwith the sample seals which was seized vide memo Ex. PW11/C; Ct.Devender was deputed at the spot and they tried to trace the accused; thereafter, he alongwith SI Bhupender and Ct. Chiranji Lal went to the Trauma Center where the inquest papers 25. 35 (1)(B) were prepared and the brief facts and inquest papers Ex.PW26/B; the dead body was taken to Subzi Mandi Mortuary for its postmortem; the request form for conducting the postmortem on the dead body was filled vide Ex.PW18/B; the statement of the witnesses for the identification of the dead body were recorded vide Ex. PW4/A and Ex. PW1/B; after postmortem the dead body was handed over to its relatives vide receipt Ex.PW1/C; the sealed blood sample alongwith sample seal was received vide memo Ex. PW11/D; they tried to trace the accused and again reached at the spot where Deshraj and other witnesses Abid and Suresh met him and he recorded their statements; from the spot they came back -::24::- FIR No 226/08 PS: Timarpur to the Police Station and the case property was deposited in the malkhana in intact condition and he also recorded the statement of the police witnesses; on 14/5/2008 the accused surrendered before the court and on the directions of the court he was interrogated and he was arrested in the present case vide memo Ex. PW12/B and his personal search was conducted vide memo Ex. PW12/C; the disclosure statement Ex. PW12/A made by the accused was recorded; the accused was taken on one day Police Custody remand on his application dated 14.5.2008 Ex. PW27/BA and he was medically examined thereafter the accused led them to the Wazirabad, near drain at Choraha; there at the instance of the accused they tried to trace out the knife from the drain with the help of divers but the same could not be traced on that day; thereafter the accused led them to the place of occurrence and on the pointing out of the accused and he prepared the memo Ex.PW1/D; at that place the accused stated that it was the place where he had committed the offence; they continuously inquired from the accused about the weapon of offence but he misled them; they came back to the Police Station; on 15/5/2008 the accused was again interrogated after taking him from the lock up and his supplementary disclosure statement Ex. PW6/A was -::25::- FIR No 226/08 PS: Timarpur recorded; the accused led them to the bushes situated near the drain at Wazirabad and the accused got recovered one knife lying in the bushes; the knife was opened and the sketch of the same was prepared which is Ex. PW6/C; the total length of the knife was 24 cm; the length of the edge was 11 cm and the length of the handle was 13 cm; the knife was converted into a cloth parcel and sealed with the seal of RA; the seal after use was handed over to SI Bhupender; the knife was seized vide seizure memo Ex. PW6/B; it was a buttondar knife; from the place of recovery of knife they came back to the Police Station along with the accused and the case property was deposited in the malkhana in intact condition; the accused was again medically examined and was produced before the Court and he was sent to Judicial custody; he recorded the statement of the witnesses U/s 161 CrPC; on 22.5.2008 he obtained the sealed parcels of knife from the malkhana for getting opinion from the concerned doctor and after receiving the opinion the knife was again deposited in the malkhana which was sealed with the seal of Subzi Mandi Mortuary; his application in that regard Ex.PW27/A; DD entry in that regard is Ex.PW19/A and Ex.PW19/B was recorded in the DD register; he also recorded the statement of the MHC(M) in this regard; the site plan Ex. -::26::- FIR No 226/08

PS: Timarpur PW26/DA was prepared at the place of recovery; the scaled site plan Ex.PW23/A was got prepared by the draftsman SI Manohar Lal; the exhibits were sent to the FSL through Ct. Chiranji Lal and the result was obtained later on Ex.PW27/B and further investigation was handed over to SHO Ramphal.

In his cross-examination by Ld counsel for the accused he has stated that he has prepared the site plan Ex. PW26/DA and had used more than one pen in preparing it because the ink of one pen was exhausted; he has also prepared the site plan Ex.PW26/DA regarding recovery of knife; the signature of accused were not obtained on Ex. PW26/DA; he had made efforts to arrest the accused because of their efforts to apprehend him the accused had surrendered in the court; after the commission of the murder till the arrest of the accused he had tried to enquire from other persons than Deshraj about the incident but none came forward to disclose anything; the place of recovery was near drain and was on busy road visited by public persons; he had asked passers-by to join the investigation but none agreed saying that they did not want to engage in the police work; the knife was got recovered from the bushes by the accused; no fingerprints was lifted from the knife because at that time it was having dust etc and there were no -::27::- FIR No 226/08 PS: Timarpur chances of fingerprints; they did not take the chance prints from the knife after it was lifted from the accused and handed over to him. III. MEDICAL WITNESSES PW9 Dr. Karan Singh who was working as Senior Medical hospital at Sushrut Trauma center on 06/5/2008 and deposed that on that day Sanjiv Kumar S/o Narain Dass was brought in the hospital at 10.45PM by Abid with the alleged history of physical assault; on examination:- he found the patient was drowsy state; his pulse rate 120 per minute, B.P. 60/40 patient was a febrile in tough, cold periphery, CVS per abdomen, normal in clinically, on history of seizure ENT bleed and vomiting, chest bilateral air entry decrease, conducted sound positive, pupil bilateral sluggish on reaction. Local examination:-

1. Stab wound on over the left thigh, measuring approx.

3X1.5cm, 9" from the interior superior illiac side of thigh,

2. Abrasion over the right eye, Patient was referred to General surgery for the further management. He has proved the MLC Ex. PW9/A; the injuries were mentioned on the diagram on the back side of the MLC Ex.PW9/B. The gray colour pajama was sealed and handed over to -::28::- FIR No 226/08 PS: Timarpur the Investigating Officer.

PW18 Dr. S. Lal, Specialist Forensic Medicines, Subzi Mandi Mortuary, Delhi has conducted the postmortem on the dead body of Sanjiv Kumar on 7/5/2008 brought by Inspector Ram Avtar Meena, Police Station Timar Pur with alleged history of assault and brought to Sushtra Trauma Centre vide MLC no. 98587 on dated 6.5.2008 at 10.45 PM; after that he was expired during treatment on dated 7.5.2008 at 12.05 a.m; the dead body was wrapped in white sheet wearing no clothes, rigor mortise present all over body, postmortem staining present on back and fixed except over pressure area. He has further deposed as under:-

"ANTI MORTEM INJURIES 1 Redish abrasion 2.5 X 0.5 cm present over right side forehead placed 1.5 cm above the eye brow and 4 cm. right to midline.

2 Redish abrasion 3X 2.5 cm present over right side face placed 1 cm outer to angle of eye. 3 Redish abrasion 1.5 X 0.4 cm present over right side bridge nose .

4 Radish abrasion 3 x 2cm over chin placed just below the lower lip.

5 Superficial incised wound 6.0 X 1.5 cm X muscle deep over right arm on lower medial aspect placed 2 cm above the elbow joint.

-::29::- FIR No 226/08

PS: Timarpur 6 Surgically stitch stab wound 2.8 X 0.5 cm X Thigh Muscle deep with four no. of stitches present in the lateral front and middle of left thigh, obliquely placed, 80 cm below the anterior superior Iliac spines and 15 cm from the base of penis. Outer lower angle of wound is acute and other angle is blunt. the wound enter the thigh muscles in horizontally and backward direction upto femur bone and cutting underline femoral vessels , total dept of the wound is about 8.5 cm.

In internal examination the viscera was found pale and stomach contain semi digested food material.

OPINION The cause of death was haemorrhagic shock due to antemortem injury to femoral vessels and sufficient to cause death in ordinary course of nature. Injury no. 1 to 4 were produced by blunt force impact and injury no. 5 and 6 produced by sharp edged weapon. Time since death about 12 hours Deceased blood soaked down in gazue piece under seal of CMO Incharge AAAGH and handed over to IO along with sample seal. the postmortem report Ex.PW18/A which is in my handwriting and bears my signatures at point A. I had handed over 13 inquest papers alongwith the postmortem report to the Investigating Officer. Inquest papers bearing my -::30::- FIR No 226/08 PS: Timarpur initials at point A. The inquest papers are collectively Ex.PW18/B(1 to 13);

on 22.5.2008 on the application moved by the Investigating Officer Ram Avtar, Police Station Timarpur dated 22.5.2008 is marked 18 along with all inquest papers and sealed parcels containing weapon of offence in respect of the deceased Sanjiv Kumar postmortem no. 550/08 conducted by me. The sealed parcels containing the 3 no. of seal of RA and written case FIR no.226/08 under section 302 IPC and 25 Police Station Timarpur and signatures of Investigating Officer. After opening the parcels a metalic knife recovered and examination and diagram at point A was made on the back of the postmortem report. After examination of weapon of offence (knife) and going through the postmortem report findings , I opined that injury no. 5 and 6 could be possible to be caused by the weapon of the offence produced before me and injury no. 1 to 4 could be caused by blunt force impact. The weapon of the offence resealed alongwith the original covering with the seal of CMO Incharge AAA GH and handed over to the Investigating Officer along with the sample seal. The opinion given by me on the weapon of offence is Ex.PW18/C bears my signatures at point- A. I can -::31::- FIR No 226/08 PS: Timarpur identify the knife that is weapon of offence on which I had given my opinion if shown to me.

At this stage, one sealed envelop seal with the seal of court is produced by the MHC(M) which is opened and taken out one open cloth parcel sealed with the seal AAA Aruna Asaf Ali Hospital baring the particulars of the case. The same is Ex. P-1 on which the witness identified the signatures at point A. Another empty cloth parcel bearing the particulars of the case and seal impression of RA is Ex. P2. The knife recovered from the pullanda is Ex. P3 shown to the witness who has identified the same stating that it was the same knife on which I had given my opinion."

5) Accused was examined u/s 313 CrPC in which he has stated that he was innocent and falsely implicated by the police. He did not desire to lead evidence stating that he has been falsely implicated in this case; he was arrested on 22/5/2008 at about 10.45 AM when he was going to his place of work at DMS booth in front of RPF gate for doing his job and nothing was recovered at his instance.

6) I have heard Shri Naveen Gaur Ld counsel for the accused -::32::- FIR No 226/08 PS: Timarpur who has argued that the presence of PW1 Deshraj the only eye witness to the commission of offence is not reliable because his presence on the spot is highly doubtful for the following reasons:-

I. PW1 has mentioned the name of the accused in the complaint which is unusual because he was not living in the locality and as such there was no occasion for him to know the name of the accused. II. According to PW1 only one stab injury was given on the thigh of the injured with knife but PW18/Dr. S. Lal who has conducted the postmortem of the deceased has stated that injury no. 5 and 6 were possible by weapon of offence and both the injuries are stated to be stab injuries inflicted by a sharp edged and pointed weapon.

III. The postmortem report is showing four blunt injuries and two sharp injuries whereas eye witness PW1 has stated only about one injury on the thigh by stabbing, the eye witness must tell approximate facts otherwise his testimony becomes doubtful. IV. The eye witness PW1 has cleverly misguided the police by saying that he did not accompany the injured to hospital as he went to the house of his sister to arrange money.

V. The site plan Ex. PW23/A has shown the distance of about five meters between point-A where accused has stabbed the deceased and the point-B from where complainant Deshraj has witnessed the -::33::- FIR No 226/08 PS: Timarpur occurrence and there was no visibility and as such witness could not see the spot of occurrence.

Ld counsel has referred and relied upon the case of Raj Kumar Vs. State reported as 68 (1997) DLT 77 Delhi High Court. In this case the report of the CFSL suggested that on the knife Ex. P1 which was the weapon of offence, human blood was found but the blood group of the same could not be ascertained; doctor who conducted the postmortem examination has not been examined as a witness and the weapon of offence Ex. P1 was not shown to the doctor in the court so as to know whether that weapon could have caused the injury noted in the postmortem report; the only eye witness PW1 was not found to be wholly reliable and trustworthy, especially considering his conduct soon after the occurrence of not removing the injured to the hospital and waiting for PW8 to come, keeping the injured at the corner of the gali in injured state, not revealing to PW8 the name of the assailant. It was held that the prosecution was not said to have established the guilt beyond all reasonable doubt and the conviction was set-aside.

Ld counsel has further referred the case of High court of Punjab and Haryana reported as Vipin Kumar Vs. State of Punjab, 2002(1) CC cases (HC) 96. In this case the presence of the eye -::34::- FIR No 226/08 PS: Timarpur witnesses was found extremely doubtful and they appeared to have not deposed in a bona-fide manner because one of the eye witness knowingly mentioned the name of Har Charan Singh to be an offender in a murder case and PW2 Kashmir Singh has not been able to advance any reason as to why he did not mention the name of Har Charan Singh initially. The witness was unable to mention the seats of the injuries in this alleged brief occurrence where so many people were not allegedly involved.

7) Ld Addl. PP for the state has submitted that the presence of eye witness PW1 has been established beyond any reasonable doubt because he has successfully with stood the test of the cross-

examination regarding his presence on the spot. His presence on the spot has also been proved by PW2 when he has categorically stated in his cross-examination that Deshraj was present even at the place of incident and told them to go to hospital and he would be coming shortly. PW2 successfully denied the suggestion that PW1 Deshraj had not reached in the hospital in his presence.

8) I have considered the rival submissions in that regard and after going through the evidence of PW1 Deshraj it is found that he -::35::- FIR No 226/08 PS: Timarpur is consistent and reliable in his deposition regarding his having witnessed the occurrence of stabbing of his brother-in-law Sanjiv by accused Manoj. He has deposed that the accused was saying his brother-in-law " main aaj tera kaam tamam kar deta hoon"

and brought out a knife from his pant's right pocket and gave a blow to his brother-in-law Sanjiv on his left thigh as a result his brother-in-law started bleeding heavily and fell down on the ground; on seeing this he (PW1) was perturbed and raised alarm on which accused ran away from the spot. Regarding his not accompanying the injured to hospital, he has stated that Suresh and Abid took the injured to trauma center and many public persons gathered on the spot and he went inside the house of his sister, took some money and then went to trauma center on his bike and reached there at about 11.00PM. Even in his cross

-examination he has clarified that on the date of incident his sister asked him to call his Jija from the place on the corner of the street which was at a distance of about 40 steps from the house.

He has further confirmed in his cross-examination about the stabbing of his brother-in-law by accused saying that he did not intervene Manoj (accused) when he was abusing his brother-in-law because when accused was saying that his brother-in-law was -::36::- FIR No 226/08 PS: Timarpur objecting to his (accused) staying in Wazirabad, in the meanwhile he (accused) brought out a knife from his pocket and stabbed his brother-in-law; he was at a distance of about 3-4 steps when he stabbed his brother-in-law.

9) Regarding the mentioning of the name of the accused in the FIR by PW1 and the objection of the Ld defence counsel that it was unusual to know the name of the accused, PW1 in his cross-

examination stated that he knew the accused and his name because whenever he used to visit his sister's house, he came to know about the boys in the neighbourhood and he knew the accused earlier because on the Holi day before the incident when he alongwith his brother-in-law and other family members were enjoying the Holi by dancing and singing, accused Manoj came there drunk and took quarrel and abused them. There is no substance in the arguments of the Ld defence counsel that the witness was not able to see the occurrence from a distance of about 5 meters as there was no visibility. PW1 in his cross- examination has clarified that he has seen the stabbing from 3-4 steps and light was coming from an electric pole on the spot of incident. His this deposition is corroborated by site plan Ex.PW23/A wherein electric poles have been shown at point-C -::37::- FIR No 226/08 PS: Timarpur and D and there position is not far away from the spot of occurrence and both these electric poles were having mercury bulb which were capable of illuminating the spot of occurrence making the visibility on the spot. The position of eye witness at point- B is shown at a distance of about 4 meters from the place of occurrence shown by point-A.

10) The contention of Ld defence counsel regarding ocular evidence of PW1 about only one injury having been caused to the deceased being contrary to the medical evidence of Dr.S.Lal/PW18 who has mentioned two stab injuries in his postmortem report Ex.PW18/A, I am of the considered opinion that there is no contradiction as such in the ocular and medical evidence. The incident of stabbing has occurred within a span of few seconds and after seeing the stabbing of his brother-in-law the PW1Deshraj became perturbed (ghabra gaya) and raised alarm. There is every possibility in that state of mind that causing of further injury by the accused to the deceased might have escaped from his notice. The deposition of PW1 in that regard is corroborated by Dr. Karan Singh/PW9 who has examined the deceased first time in Susrat Trauma Center and prepared the MLC Ex. PW9/A. The said witness has clearly stated that on local -::38::- FIR No 226/08 PS: Timarpur examination he has found stab wound over the left thigh measuring approximately 3X1.5 cm. He has immediately referred the patient to general surgery for further management. In the postmortem report Ex. PW18/A the injury no. 5&6 are shown to the sharp injuries and described as under:-

I. Injury no. 5 produced by sharp edged weapon II. Injury no. 6 produced by pointed tip with single sharp edged weapon The cause of death is shown due to hemorrhagic shock due to ante-mortem injuries to femoral vessels and sufficient to cause death in the ordinary course of nature.

PW18/Dr. S. Lal has given the opinion regarding the injury no. 5&6 by saying that after examination of weapon of offence knife Ex. P3 and also going through the postmortem report findings he has opined that injury no. 5&6 could be possible to be caused by the weapon of offence produced before him. He has identified the weapon of offence knife as Ex. P3 when shown to him stating that it was the same knife on which he had given his opinion Ex. PW18/C. Regarding injury no. 1 to 4 mentioned in postmortem report, PW18/Dr. S. Lal has stated that the same could be caused by blunt force impact. The injury no. 1 to 4 are noticed either on the forehead -::39::- FIR No 226/08 PS: Timarpur or on the face and are in the form of radish abrasions and such injuries could be possible by fall of the deceased because the PW1 has stated that after sustaining stab injury at the hand of the accused his brother-in-law Sanjiv fall down on the ground. Thus there is no contradiction in the ocular evidence of PW1 vis-a-viz medical evidence of PW18. Rather the version of PW1 regarding stab injury has been corroborated and confirmed by the PW9/Dr. Karan Singh who has prepared the MLC Ex. PW9/A and PW18/Dr. S. Lal who has conducted the postmortem upon the body of the deceased vide report Ex. PW18/A.

11) The FIR was registered on the statement of PW1 which is proved by him as Ex. PW1/A. He has also identified the dead body in the mortuary vide Ex. PW1/D. He has further deposed that on the next day police came to his sister's house and asked him about the place of incident and he has pointed out the place of incident and his statement was also recorded. He has also deposed that on 14/5/2008 at about 5.00PM police officials came alongwith accused to his sister's house and asked him about the accused and on seeing him he told them that he was the boy who had inflicted injuries to his brother-in-law on 6/5/2008 and in his presence -::40::- FIR No 226/08 PS: Timarpur accused Manoj pointed out the place of incident. In his cross-

examination he has clarified that he used to visit his sister's house once or twice in a week. The deposition of PW1 regarding his presence on the spot and having seen the occurrence i.e causing of the stab injuries by accused Manoj to his brother-in-law is found to be natural and reliable and there is nothing in his cross- examination which may have assailed the veracity and trustworthiness of his deposition and he has successfully with stood the test of cross-examination.

12) The above discussion shows that the case law i.e 68 (1997) DLT 77 Delhi High Court and 2002(1) CC cases (HC) 96 (Supra) relied upon by the Ld defence counsel to assail the presence of the PW1 on the spot and his testimony are not applicable to the present case because the discrepancy in the prosecution case which was found by the Hon'ble Appellate courts in those cases referred (Supra)is not existing in the present case and prosecution herein has established the presence of PW1 on the spot and his seeing the occurrence beyond any reasonable doubt. The testimony of PW1 as discussed above is found to be of impeccable nature, highly reliable and trustworthy.

13) The second limb of the arguments as advanced on behalf -::41::- FIR No 226/08 PS: Timarpur of the accused by Ld. Defence counsel is that the recovery of the knife at the instance of the accused has not been established beyond reasonable doubt because none of the witnesses has stated that the Investigation officer has tried to join any independent/public witness at the time of recovery; no efforts were made by the Investigation Officer to join independent persons at the time of alleged disclosure statement made by the accused at Tis Hazari Courts where he was arrested and interrogated after his surrender. In the end Ld. Defence counsel submitted that the clothes of the accused were not seized deliberately because considering the nature of the injury, the blood must have spread on his clothes also and investigation is silent on this aspect which shows that accused has been falsely implicated. Ld Counsel has referred and relied the following cases in support of his arguments .

I. In Narsi Vs State of Haryana reported as IV (1998) CCR 112(SC)) it was held that:-

As disclosed by the prosecution evidence, a case was registered against the appellant and seven others for the offence of murder on November 1, 1988 at Fatehbad Police Station. The police was on lookout for the appellant. On 8th November,1988, -::42::- FIR No 226/08 PS: Timarpur the appellant accompanied by his maternal uncle presented himself before the officer Incharge of the Fatehabad Police Station, SHO Ganga Ram took him in custody and at that time found from his possession, a pistol and a cartridge. No independent witness was kept present at the time of either taking the appellant into custody or while seizing the pistol and the cartridge. The reason given by Ganga Ram in this behalf is that because his maternal uncle was present, he did not think it fit to call any other person to witness the seizure of the weapon and the cartridge. This obviously is a lame excuse. In absence of any independent evidence, seizure of a pistol and a cartridge from possession of the appellant becomes doubtful. It is also highly improbable that the appellant had presented himself with a weapon which was unlicensed. He had not gone there to make a confession. He had gone to the police station because he was wanted by the police in that case. No other witness was examined by the prosecution on the point of recovery of a pistol and a cartridge from the possession of the appellant. As the evidence of Ganga Ram does not appear to be truthful, the conviction of the appellant will have to be set aside.

II. In Dinesh Kumar Vs State reported as 1998 (2) CCRJ 264 High Court of Delhi , it was held that :-

-::43::- FIR No 226/08

PS: Timarpur Para 27 : It may be appreciated that according to the prosecution , the accused returned to Gobind Puri House in the early hours of 4.12.1989 and that he was absconding since the evening of 1.12.1989. It means that he returned after three nights and two days. According to the prosecution, the accused had washed the knife Ex. P-1 in the Naali and thereafter he concealed it behind the boxes in the open Almirah in the house. The evidence of PW10 suggests that the churi was taken out from behind the boxes lying in the Almirah and that the Almirah had no door. The question would then arise as to if the accused could do away his son whose dead body was found with slit neck from a ditch, would he wash the knife in the Naali and would come to his house to conceal the weapon of offence when so many persons were in the house. Would the accused take the risk of returning to his house only for the purpose of concealing the weapon of offence that too in open Almirah? Could he not have anticipated the presence of PW3 and her relations in the house which is one room premises as disclosed from the evidence on record. As far as the evidence of PW19 is concerned, in view of his cross examination, as aforestated, no reliance can be placed on his evidence for the purpose of suggesting the -::44::- FIR No 226/08 PS: Timarpur recovery of Ex. P-1 at the instance of the accused as in the cross examination, it has been stated that the knife Ex. P-1 all throughout remained with the police. Considering the facts as above in our opinion evidence of PWs 6 and 19 and the disclosure statement Ex.PW6/B and the pointing out and seizure memo Ex. PW4/B do not inspire confidence in conclusively holding that the recovery of knife Ex. P-1 is at the instance of the accused and also for the reasons that the disclosure statement Ex.

PW6/B and the pointing out memo Ex. PW4/B have not been witnessed by any independent public witness, who can be relied upon for the purpose.

Para 28 : It need hardly be said that in order to lend assurance that the investigation has been proceeding in fair and honest manner, it would be necessary for the Investigating Agency to take independent witness to the discovery under section 27 of the Indian Evidence Act and not taking Independent witnesses and taking subordinate police person as the witnesses to the disclosure/recovery/discovery would in a given case, render the discovery at least not free from doubt. The object of Sub-section (4) of section 100 of the Code is to ensure an honest and genuine search and to prevent trickery by 'planting' the things to be 'found' in -::45::- FIR No 226/08 PS: Timarpur searches.

Para 29: The above state of evidence, especially the evidence of PW3 does not sound trustworthy in holding that the accused took Sanket with him at about 6.00 p.m on 1.12.1989 and that he returned alone after about 45 minutes and that he absconded till early hours of 4.12.1989 . The evidence on record also does not satisfactorily and conclusively suggest disclosure statement Ex.PW6/B having been made by the accused and the consequent recovery of knife Ex. P-1vide Ex. PW4/B at the instance of the accused. In our opinion, the evidence does not establish the completion of the chain of circumstances so as to point to the guilt of the accused and the accused alone inconsistent with the hypothesis of the innocence of the accused, and the appellant/convict entitled to the benefit of doubt. Appreciating the evidence on record , the learned trial Judge cannot be regarded justified in recording the finding of guilt on the basis of the evidence, as discussed above.

Under the circumstances, the appellant is required to be given the benefit of doubt and the consequent acquittal.

III. In Chander Pal & anr. Vs State reported as 1998 -::46::- FIR No 226/08 PS: Timarpur (4) CCrJ, 76 Delhi High Court it was held that PW1 has in no mistakable terms stated that public witness were not called though they were present. We see no reason why the public witnesses should not have been joined as attesting witnesses to Ex. PW18/D, E, G and H i.e disclosure memo, seizure memo, arrest memo and personal search of the accused when they were present/available at the relevant time. It need hardly be said that the public witnesses, if available, joining as attesting witnesses to the disclosure statement as well as recovery memo the same would lend assurance to the say of the prosecution. Not joining the public witnesses as attesting witnesses to the above memos would smack of malafide and make the prosecution version more doubtful.

IV. In Hariom Vs State 2005 (1) JCC 549 High Court of Delhi. it was held that :-

"Analysing the statement of PW-9, it appears that besides him a number of other people had witnessed the occurrence or had arrived at the spot soon thereafter and had been told by the victim of the incident , yet the prosecution has chosen not to field them as witnesses to corroborate the statement of PW-9 Raj Kumar, who is otherwise an interested witness. This witness states that two -::47::- FIR No 226/08 PS: Timarpur person brandishing their weapons came and opened fire with their kattas on the deceased. This does not find support from any other evidence. He says the deceased told him as also others present about the incident. It too finds no support. He say that Sanjay as also Sehdev knew of the facts and were sent to inform the police. This also finds no support from the DD entry nor any ocular statement. The manner in which the investigating officer has introduced the dying declaration and also the empty cartridge creates grave doubt in the prosecution's version as put forth through its witnesses. Raj Kumar appears to have taken centre stage in ensuring fabrications to nail the accused.

The statement of Raj Kumar is full of contradictions and improvements, which does not inspire confidence.

V. In Upasana Ghosh @ Bramhachary Vs. State 1998 ( 2) CCrJ 162, Calcutta High Court, in this case of circumstantial evidence it was held that the evidence of the witnesses examined namely, the brothers is artificial . The mere recovery of wrist watch can never considered to be a clinching evidence to connect the accused with the crime. Nor it could attribute to the fact that the recovery of the watch leads to a hypothesis about the guilt of accused persons and inconsistent with his -::48::- FIR No 226/08 PS: Timarpur innocence. In the absence of any formidable evidence on record, the guilt of the accused has not been established.

1) Ld. APP for the state however submitted that all the witnesses who have been present at the time of recovery of weapon of offence at the instance of the accused has given the explanation for non-joining of independent witness by the Investigating Officer. It is further submitted that the evidence of the official witnesses cannot be brushed aside merely on the ground that independent public witness did not join if their evidence is otherwise reliable and trustworthy. Ld. APP for the state vehemently argued that the evidence of the official witness is trustworthy and reliable because they have successfully withstood the test of cross examination.

2) I have gone through the testimony of those witnesses who were present at the time of recovery of weapon of the offence at the instance of the accused. PW-6 Ct. Rajkumar has deposed that on 15.5.2008 during interrogation in the morning the accused has made disclosure statement Ex. PW6/A stating that he has thrown the knife in the bushes near Ganda Nala and got recovered the same which was seized by the Investigating Officer vide memo -::49::- FIR No 226/08 PS: Timarpur Ex.PW6/B. He has identified the knife Ex. P-3 stating that it was recovered by the accused from the bushes near Wazirabad Village.

The presence of this witness at the time of recovery of knife stands established from his deposition in his cross examination by Ld.Defence Counsel where he has stated that the distance between the place of recovery and the Police Station was about 1Kilometre; they went to the spot in TATA 407, government vehicle bearing no. DL 1D 5116 and the vehicle was stopped at the distance of the 5 yards from the place of recovery; the writing work including the site plan of the place of recovery was prepared by sitting by the side of the road and it took about one and half hour at the spot for carrying out the proceedings.

3) PW-12 Ct. Joseph has deposed that on 14.5.2008 while accused was in police custody, he had led the police party to Wazirabad village at the place of incident and pointed out the place vide memo Ex. PW1/D where he had stabbed Sanjiv Kumar. He has further stated that on 15.5.2008 accused disclosed that he had thrown the knife in the bushes at Wazirabad, Outer ring road, Near Ganda Nala and on reaching there accused got recovered one buttondar knife from the bushes which was taken into the possession by the Investigating officer and he has also identified -::50::- FIR No 226/08 PS: Timarpur the knife Ex. P-3 stating that it was recovered at the instance of the accused.

4) PW26-SI Bhupender has deposed that on 14.5.2008 the accused surrendered in the court and during interrogation he made disclosure statement Ex. PW12/A and thereafter was taken in police custody remand; he has misled them regarding the weapon of the offence therefore, he was continuously inquired and interrogated about the weapon of offence and on 15.5.2008 he made another disclosure statement vide Ex. PW6/A and in pursuance to that the accused led them to the bushes situated near the drain at Wazirabad and the accused got recovered one knife lying in the bushes; the knife was opened and the sketch of the same was prepared vide Ex. PW6/C; the total length of the knife was 24 cm; the length of the edge was 11 cm and the length of the handle was 13 cm. The knife was converted into a cloth parcel and sealed with the seal of RA; the seal after use was handed over to him; the knife was seized vide seizure memo Ex. PW6/B; knife was a buttondar; from the place of recovery of knife they came back to the Police Station along with the accused; the accused was again medically examined and was produced before the Court and he was sent to Judicial custody. -::51::- FIR No 226/08

PS: Timarpur

5) In his cross-examination by Ld counsel for the accused he has stated that on 15/5/2008 the public persons were asked to join at the time of recovery of knife; the place of recovery of knife was at a distance of about 25 steps from the road; the fingerprints of the accused were not lifted from the knife despite that the knife was lifted by the accused and was handed over to the Investigating Officer .

6) PW-27 ACP Ram Avtar Meena in that regard has deposed that on 14/5/2008 the accused surrendered before the court and with the directions of the court he was interrogated and he was arrested in the present case vide memo Ex. PW12/B and his personal search was conducted vide memo Ex. PW12/C; the disclosure statement Ex. PW12/A made by the accused was recorded; the accused was taken on one day Police Custody remand on the application dated 14.5.2008 Ex. PW27/BA and he was medically examined thereafter the accused led them to Wazirabad, near drain at Choraha; there at the instance of the accused they tried to trace out the knife from the drain with the help of divers but the same could not be traced on that day; thereafter the accused led them to the place of occurrence and on the pointing out of the accused and he prepared the memo -::52::- FIR No 226/08 PS: Timarpur Ex.PW1/D; at that place the accused stated that it was the place where he had committed the offence; they continuously inquired the accused about the weapon of offence but he misled them; they came back to the Police Station; on 15/5/2008 the accused was again interrogated after taking him from the lock up and his supplementary disclosure statement Ex. PW6/A was recorded; the accused led them to the bushes situated near the drain at Wazirabad and the accused got recovered one knife lying in the bushes; the knife was opened and the sketch of the same was prepared which is Ex. PW6/C; the total length of the knife was 24cm; the length of the edge was 11 cm and the length of the handle was 13 cm; the knife was converted into a cloth parcel and sealed with the seal of RA; the seal after use was handed over to SI Bhupender; the knife was seized vide seizure memo Ex. PW6/B; it was a buttondar knife; from the place of recovery of knife they came back to the Police Station along with the accused and the case property was deposited in the malkhana in intact condition.

7) Regarding non-joining of public witness at the time of recovery in pursuant to disclosure statement of the accused, in criminal appeal no. 327/2002 Shashi Shekhar @ Neeraj @ Raju Vs. State, decision dt. 23/5/2007 Hon'ble High court of Delhi was pleased to hold that evidence of police witnesses cannot be discarded for the reason that no public witness was joined at the -::54::- FIR No 226/08 PS: Timarpur time of recoveries. The evidence of police witnesses could be relied upon if no serious infirmity is pointed out in their evidence on behalf of the accused. Just because the recovery witnesses are police official, it cannot be said that their evidence is not of an independent character because both are government servants and there is a presumption u/s 114, illustration (e) of the Evidence Act regarding the fact that all official acts by government servants were regularly performed. It was further held if an accused wants to rebut this presumption he can do so by bringing on record relevant material either by producing his own evidence or during the cross- examination of the witnesses from which a doubt may enter the judicial mind regarding the genuineness of the acts which the police witnesses claim to have performed while discharging their official duties during the investigation of a crime. In Praveen Kumar Vs. State of Karnataka reported as (2003) 12 SCC 199 which was robbery cum murder case it was held that where the court is satisfied that the evidence of police officials can be independently relied upon then there is no prohibition in law that the same cannot be accepted without any independent corroboration.

-::55::- FIR No 226/08

PS: Timarpur

8) With due respect to their Lordships, the facts and circumstances and evidence in the cases referred and relied by Ld. Counsel for accused on the point of recovery on the weapon of offence i.e (1)Narsi Vs State of Haryana reported as IV (1998) CCR 112(SC)) (2) Dinesh Kumar Vs State reported as 1998 (2) CCRJ 264 High Court of Delhi (3) Chander Pal & anr. Vs State reported as 1998 (4) CCrJ, 76 Delhi High Court (4) Hariom Vs State 2005 (1) JCC 549 High Court of Delhi (5) Upasana Ghosh @ Bramhachary Vs. State 1998 ( 2) CCrJ 162, Calcutta High Court (Referred SUPRA) are different than the facts and circumstances and evidence in the present case. In some of the cases the evidence of eye witness was not found reliable and trustworthy either because of inherent contradiction or lack of corroboration by other evidence. Some of the cases are of circumstantial evidence. The present case is of direct evidence and the evidence of eye witness PW-1 has been found to be reliable and trustworthy and the same has been corroborated by the medical witness as well as evidence of PW-2 and PW-3 who are independent witnesses. In the case in hand, the evidence of the official witnesses regarding recovery of weapon of offence knife Ex. P-3 at the instance of the accused in pursuance of his disclosure -::56::- FIR No 226/08 PS: Timarpur statement is found to be reliable and trustworthy as no serious infirmity has been pointed out in their evidence in cross- examination on behalf of accused. The explanation given by the Investigating Officer for non-joining of the public witnesses at the time of recovery is found satisfactory. Moreover, all these official witnesses have been cross examined at length by the Ld. Defence counsel on the aspects as to how they reached at the spot of recovery, the distance of the place of recovery from the Police Station and the manner in which the accused picked up the knife from the bushes and handed over the same to the Investigating Officer. The Investigating Officer/ACP Ram Avtar Meena has also sufficiently explained as to why fingerprints were not lifted from the knife because the same was having dust etc.

9) Regarding the last contention of the Ld. Defence counsel that the investigation was not proper because the clothes of the accused were not seized as blood must have spread on his clothes, I am of the opinion that it is not the case of the prosecution that blood has spread on the clothes of accused after he has stabbed the deceased with the knife. The prosecution version of the occurrence has been sufficiently established beyond reasonable doubt by the testimony of complainant/eye witness to the -::57::- FIR No 226/08 PS: Timarpur occurrence. Therefore, I do not find any fault in the investigation of the police on this aspect and the contention of Ld. Defence counsel has no substance.

10) The other possible argument regarding the evidence of PW-1/Deshraj might have been taken by the Ld. Defence Counsel about his being relative of the deceased, therefore, hostile and inimical to the accused and thus having falsely implicated him. In that regard the Hon'ble Apex Court in Harbans Kaur vs. State of Haryana reported as 2005 (1) JCC 490 was pleased to hold that when a plea of partiality is raised regarding testimony of related witnesses , the reason has to be shown for that and it has to be established that they have reason to shield actual culprit and falsely implicate the accused .

11) Reliance can be placed upon Arjun Mahto Vs. State of Bihar , 2008 V AD (Cr.) (SC) 19. Para no. 5 and 6 are relevant and reads as under:-

Para. 5: Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the -::58::- FIR No 226/08 PS: Timarpur evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

Para. 6 :In Dalip Singh and Ors. Vs. The State of Punjab (AIR 1953 SC 364) it has been laid down as under:-

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person -::59::- FIR No 226/08 PS: Timarpur against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

12) On analysing the testimony of PW-1/Deshraj duly corroborated by testimony of PW-3 and PW-4 and also by medical evidence on record , his testimony is found to be natural and coherent and there is nothing to assail his deposition because he has successfully withstood the test of cross-examination.

Therefore, I find no reason to disbelieve his testimony just because he was relative of the deceased.

13) On the basis of above discussion, I am of the considered opinion that the prosecution has been successful in establishing by its evidence beyond reasonable doubt that on 06.5.2008 at about 10.15 P.M at Gali no. 6, Near Transformer, Wazirabad, Delhi -::60::- FIR No 226/08 PS: Timarpur the accused has stabbed deceased Sanjiv Kumar with knife Ex.P-

3. It is further established by the prosecution beyond reasonable doubt that the knife Ex. P-3 used as weapon of offence in committing murder of Sanjiv Kumar by the accused was got recovered by him from the bushes Near Ganda Nala, Outer Ring Road, Wazirabad, Delhi where he has hidden/thrown the same after commission of the offence. It is further established beyond reasonable doubt that the knife Ex. P-3 is a button actuated knife and the possession of the same is punishable Under Section 25 of the Arms Act by virtue of Notification no. F-13/451/ 79 - Home (G) dated 29.10.1980. I, therefore, hold the accused guilty and convict him for the offence under section 302 IPC, Section 25 and 27 of the Indian Arms Act, 1959.

ANNOUNCED IN THE OPEN COURT ON 24TH DAY OF DECEMBER, 2009 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI -::61::- FIR No 226/08 PS: Timarpur IN THE COURT OF SHRI RAJ KUMAR CHAUHAN ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS) TIS HAZARI COURTS:(WEST) DELHI FIR no. 226/08 Police station Timarpur U/s 302 IPC and 25/27 Arms Act State V/s Manoj Kumar ORDER ON SENTENCE Present: Ld Addl. PP for the State.

Convict is in judicial custody with Ld. Counsel Sh.Koshailender Singh advocate.

I have heard Ld counsel for the convict who argued that the convict was not a previous convict in any other offence; he is of young age i.e. 21 years. He is having a family comprising old aged parents, grand mother. It is, therefore, submitted that in these given circumstance a lenient view may be taken against convict while awarding sentence to him.

Ld Addl. PP for the State argued that the deceased Sunil Kumar was aged about 32 years and having family dependent upon him and because of act and deeds of the convict, a life was lost in its prime youth. It is further submitted that convict is also involved in 9 other cases and his antecedents are not clear as he is B.C (bad character) of Police Station Gokul Puri. Ld Addl. PP for the State, -::62::- FIR No 226/08 PS: Timarpur therefore, submitted that maximum sentence be awarded to the convict. Ld counsel for convict states that he is acquitted in all those cases and only two cases are pending trial.

I have considered the rival submissions made at bar and also carefully examined the facts and circumstances of the case.

Considering the gravity of offence and the fact that a young life was lost because of the acts and deeds of the convict, the convict is sentenced to imprisonment for life and fine of Rs.5,000/- (Rupees five Thousands only) for the offence u/s 302 IPC. In default of payment of fine the convict shall undergo simple imprisonment for a period of one month.

The convict is further sentenced to undergo Rigorous imprisonment for a period of 3 years and to a fine of Rs. 1000/- for the offence u/s 27 of the Indian Arms Act, 1959. In default of payment of fine, he shall undergo simple imprisonment for a period of one month.

Benefit of Section 428 CrPC is given to the convict. The period of imprisonment already suffered by him during trial be set off against the sentence of imprisonment awarded to the convict .

Copy of the judgment and order on sentence be supplied to convict free of cost.

-::63::- FIR No 226/08

PS: Timarpur File be consigned to record room.

ANNOUNCED IN THE OPEN COURT ON 4th January, 2010 (RAJ KUMAR CHAUHAN) ASJ/SPECIALJUDGE:NDPS (WEST)DELHI -::64::- FIR No 226/08 PS: Timarpur

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Delhi District Court

State vs Manoj Kumar on 4 January, 2010