Delhi District Court
Fir No. 198/11 5 State vs . Ajay Kumar & Anr. 1 Of 65 on 18 September, 2021
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02(NE), KARKARDOOMA COURTS, DELHI CNR No. DLNE01-000101-2011 SC No. 44505/2015 (Old SC No. 27/11) FIR No. 198/2011 PS : Jyoti Nagar U/s 302/34 IPC State Versus 1. Ajay Kumar S/o Sh. Rishi Pal R/o E-13/810, Uttrakhand Colony, Loni, UP. 2. Vikash S/o Sh. Subhash R/o H.No. A-25, Indra Enclave, Loni, UP. Date of Institution / Committal : 05.09.2011 Date of Arguments : 26.08.2021 Date of Pronouncement : 18.09.2021 FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 1 of 65 JUDGMENT:
1. Prosecution case: It is the case of the prosecution that a DD No.15A was received by PS Jyoti Nagar on 14.05.2011 regarding an accident, which was marked to SI Om Prakash, who visited the spot of incident with Ct. Suresh, but it was revealed that the injured had already been removed to GTB Hospital by his brother. HC Om Prakash along with Ct. Suresh visited GTB Hospital and collected MLC of injured Dharambir, but he was 'unfit for statement' and nature of injuries was blunt. However, HC Om Prakash did not find any eye witness in hospital and even brother of injured Jaiveer also did not meet him. A rukka on the basis of DD No.15A was prepared and got registered FIR u/s 308 IPC. After registration of FIR, investigation was assigned to ASI Rambir. ASI inspected the spot of incident at the instance of brother of injured Jaiveer. He also recorded the statement of Jaiveer and also seized clothes of injured as produced by Jaiveer. ASI also seized blood smeared brick and blood earth control. On 15/05/2011, PS received an information of the death of injured Dharambir from GTB Hospital vide DD No.9B. ASI got conducted the postmortem on the dead body of deceased in GTB Hospital. Jaiveer disclosed the names of the accused, their identity as well as incident, on which basis, on 15.05.2011 accused Ajay Kumar was arrested, whereas on 16/05/2011 accused Vikas was also arrested. Motorcycle used by both accused was also seized. On 21/05/2011 and 27/05/2011, both accused refused to participate in TIP proceedings. Doctor opined the cause of death as a result of 'Antemortem injury to head produced by blunt object'. Police have charge-sheeted the both accused u/s 302/34 IPC.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 2 of 65
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. The charges u/s 302/34 IPC were framed against both the accused vide order dated 07.01.2012 and they pleaded not guilty and claimed trial.
4. To prove the charges, prosecution has examined PW1 HC Om Parkash, PW2 Ct. Suresh, PW3 Jaivir, PW4 Bablu, PW5 ASI Jagir Singh, PW6 HC Sunil Kumar, PW7 Ct. Dheeraj, PW8 Mr. Ankur Jain, the then Ld. MM, PW9 Dr. Vipin Chaudhary, PW10 Mr. Sonu Agnihotri, the then Ld. MM, PW11 Amar Nath Singh, Nodal Officer, PW12 Ct. Karambir, PW13 HC Satya Pal, PW14 ASI Rambir, PW15 Dr. Meghali Kelkar, Asstt. Professor of Forensic Medicine and Toxicology, PW16 Insp. Mukesh Jain, Draftsman, PW17 Ct. Karambir, PW18 Ram Suresh, PW19 Insp. Inderpal Singh and closed PE.
5. After PE, entire incriminating evidence explained to both accused under Section 313 Cr.P.C and their statements were recorded. Accused have not led any defense evidence and closed DE.
6. To prove the case, prosecution has examined many witnesses including the complainant/ injured. The evidence led by the prosecution is as under:-
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 3 of 65 6.1. PW1 HC Om Prakash has deposed that on 14.05.2011, he received information that at about 04.55 pm one accident had taken place near White Mandir, near Saboli fatak, Shakti Garden and DD No. 15A which is Ex. PW1/A was recorded. The said DD was handed over to him and he along with Ct. Suresh visited the spot of incident, but injured had already been removed to GTB Hospital by his brother. He visited GTB Hospital and collected the MLC of injured, but injured was unfit for statement. He searched for eyewitness and revealed that brother of injured Jaivir admitted him in hospital but he was not there, due to he again returned back to the spot. He made endorsement Ex.PW1/B on DD entry and prepared rukka and got registered FIR from PS through Ct. Suresh. Investigation was assigned to ASI Rambir who along with Ct. Suresh reached the spot of incident after registration of the case. Meanwhile, eyewitness Jaivir also reached there and ASI Rambir interrogated him and prepared site plan of the spot at his instance. Jaivir produced one shirt and one pant having blood stains of the injured before him which were seized vide seizure memo Ex.PW1/B. Again on 15.05.2011, he along-with ASI Rambir went to the house of Jaivir on expiry of injured and ASI Rambir seized a piece of brick having blood stains and blood earth control from the spot of incident. Brick as well blood earth control was seized vide seizure memo Ex. PW3/A. It is further deposed that ASI Rambir visited GTB Hospital mortuary where he prepared inquest papers of the deceased after identification of dead body by his brother as well as his father and postmortem was conducted on dead body and dead body was released to the family members after postmortem. It is further deposed that he along with ASI Rambir went to Safed Mandir, FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 4 of 65 Shakit Garden, Delhi where another eyewitness Bablu also met him and as per the version of eyewitness, he made search for accused persons in the area of Meet Nagar, Police Post, Loni Road and found that a motorcycle No. UP-76C-4191 was coming from the side of Loni and Ajay and Vikas were travelling by that motorcycle. On identification of eyewitness Bablu, Ajay and Vikas were apprehended. Accused Ajay was arrested and his personal search was conducted vide memos Ex. PW4/B and Ex.PW1/C. Accused Ajay also made his disclosure statement Ex. PW1/D. Motorcycle was also taken into possession vide seizure memo Ex.PW1/E. Accused Ajay also pointed out the spot of incident and pointing out memo Ex.PW1/F was prepared. Witness has identified the photographs of the motorcycle as Ex.P1/1 and Ex.P1/2 and motorcycle is Ex.P1. Accused Ajay was medically examined from GTB hospital on his arrest.
6.1.1. During cross examination, he has admitted that ASI Rambir did not issue any notice or information to Bablu for his interrogation, but they started checking the vehicles at 5.00-6.00 PM. It is denied that both accused were lifted from their home, but no recovery was effected from Ajay except his motorcycle and even accused also did not disclose in his disclosure statement regarding use of any weapon. It is further admitted that ASI Rambir did not prepare any site plan of the place of arrest of accused Ajay and also that accused was arrested from a busy road and many persons were passing through there, but IO did not ask anyone to join investigation. It is further admitted that on 14.05.2011, they reached at the spot of incident at around 05.30-05.45 pm and some persons were present at the spot at that FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 5 of 65 time, but none of them claimed himself to be an eyewitness. It is further admitted that no police official was asked to remain present at the spot to protect when they proceeded to GTB hospital, but no family member of the deceased met them in the hospital. It is further deposed that he went through the MLC of deceased but there was no mention of the names of the assailants in MLC. They reached in GTB hospital at about 6.15/6.30 pm, but doctor did not produce clothes before him on that day, however he had seen the injured wearing those clothes. On 14.05.2011, at about 7.00/7.15 pm, he again went to the spot of incident from GTB Hospital but ASI Rambir did not ask anyone from Mandir or neighbourers to join investigation. It is further admitted that on 14.05.2011, blood-stained earth and piece of brick were not lifted from the spot and even Jaivir also did not disclose about the parentage and address of the accused persons on that day, however description of the accused was given by Jaivir. He did not remember as to whether that description of accused was mentioned by IO in the statement of Jaivir.
6.2. PW2 Ct. Suresh joined investigation with HC Om Prakash on 14.05.2011 on receipt of DD No. 15A. They reached at the spot and came to know that injured had been removed to hospital by his brother and they came to know about the incident that it was an incident of fight/quarrel. Victim was found admitted in the hospital and HC Om Prakash collected the MLC of injured, but no eyewitness found at the spot and even injured was not fit to make statement. At the spot, he was handed over rukka prepared on the basis of DD No.15A and FIR to ASI Rambir. He also joined FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 6 of 65 investigation with ASI Rambir and visited the spot of incident where Jaivir was found there and claimed himself to be an eyewitness to the incident and handed over the clothes of the deceased. It is further deposed that clothes were delivered to Jaivir by doctors in GTB Hospital as disclosed by IO and same were seized by IO in his presence which are Ex. P1.
6.2.1. During cross-examination, he has deposed that he did not recall as to whether Jaivir or Om Prakash put his signatures or any identification mark on the clothes seized by ASI Rambir, but he did not put his signatures on sealed pulanda. Even photograph or measurement of clothes was not taken. It is admitted that no witness claimed himself to be an eyewitness, but Jaivir claimed that clothes were worn by injured at the time of incident. He was not aware about DD No.15A recorded on the basis of 100 number call made by Jaivir from his mobile phone, but DD No.15 was initially received for inquiry at about 04.55 PM and they reached the spot within 15-20 minutes where 2-4 persons were found present, none was eyewitness. Before they proceeded to GTB Hospital, they stayed at the spot for about 05-10 minutes but did not come to know about the name of injured or the name of brother of injured. They had reached GTB Hospital at around 6.00 PM which was about a distance 5-6 KM away from the spot of incident. He did not know if mobile number of informant on whose information DD No.15A was recorded was available or not. It is admitted that no person was found present at the spot to tell, if the incident was an accident or quarrel, but no fact came out that decease had quarrel or enmity with someone. Jaivir did not hand over the clothes of victim to ASI Ramvir. The statement of Jaivir FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 7 of 65 was not recorded in his presence, but signatures of Jaivir were taken on the site plan as well as seizure memo of clothes. It is admitted that proceedings of seizure of blood stains or any other articles were not conducted from the spot in his presence and rather did not notice any such articles pertaining to this case was lying at the spot.
6.3. PW3 Jaiveer (frequently used as Jaivir and be read accordingly) is an eyewitness as well as brother of deceased and has deposed that the incident dated 14.05.2011 took place in his presence at about 03.30-4.00 PM and was present at his home at that time. It is deposed that a young boy came and informed him that two persons had been assaulting his brother on the road and he reached near White Temple (Safed Mandir) Main Road and witnessed that accused Ajay had caught hold of his brother whereas other accused Vikas had been assaulting the deceased. Accused Vikas hit on the head of deceased by a brick. He knew both the accused prior to this incident as they used to roam around in the colony riding a motorcycle bearing No. UP-76E-4191, having insignia of police by blue and red paint and with a cross sword. He witnessed that his brother fell down on ground after hit by accused Vikas on his head by a brick, whereas Ajay took out an amount of Rs.12,000/- of the pocket of the pant of deceased and, he was aware about this amount as he had himself given that bundle of notes to his brother. Both the accused fled away from the spot with their motorcycle after the incident. It is further deposed that he made PCR call and removed his brother to GTB hospital where doctor advised him to arrange blood for injured. It is admitted that he told the doctor in GTB hospital that his brother had been FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 8 of 65 assaulted by the accused Ajay and Vikas, but his fact was not recorded by the doctors in MLC. It is further deposed that blood was required for the victim so he went outside of hospital to make necessary arrangements and deceased was operated in hospital on 14.05.2011 somewhere in night. The clothes of deceased were handed over to him by the doctor who attended the injured and he further handed over the same to police which seized vide seizure memo Ex.PW1/B. He narrated the incident to the police on 14.05.2011 itself. He also pointed out the place of incident to police. On 15.05.2011, PW3 accompanied with police to the spot of incident and saw some blood on a brick in fixed condition by road side. The blood-stained top of that brick was taken into possession after breaking it and was seized vide seizure memo Ex.PW3/A. Witness Bablu also reached at the spot. He has identified the clothes of deceased as Ex.P1.
6.3.1. During cross examination, he has deposed that Mobile No. 9718549243 belongs to him and the same was purchased about one month prior to the incident from Bablu for a sum of Rs. 800/- without any receipt and connection is still in the name of Bablu. It is admitted that on the day of incident, he was present at his house and did not go to Jheel or Rohini District Court regarding traffic challan. It is further admitted that Bablu was not residing in his house and was residing with his brother-in-law about ten steps away. It is denied that deceased was in habit of having liquor/alcohol or that he purchased Ice from Saboli fatak but came to know that ice was lying at the spot. He dialed 100 number from his mobile phone at about 04.00 PM but did not inform police that his brother met with an accident. It FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 9 of 65 is admitted that accused Vikas and Ajay caused injuries to his brother but he did not disclose their names and stated that he could identify the assailants, if shown. It is further deposed that he called the police that he witnessed the incident and told that two persons caused injuries to his brother and came to know their names after their arrest on 15.05.2011. It is further admitted that prior to the arrest of the accused persons, he did not tell their names to police as he did not know their names. It is further deposed that on 15.05.2011, at about 3.00 PM, he went to PS, however, it is denied that he did not disclose the description of accused or number of the vehicle involved during incident. It is further deposed that he left the spot with his brother and father for hospital by a TSR, whereas PCR Van also reached there, but Bablu was not accompanied them. PCR officials reached the spot at about 4.30 PM, but he did not call at 100 number after reaching of the PCR van and did not stop the PCR officials to remove the injured to hospital. It is admitted that the place of occurrence is a public place and a thoroughfare and rehriwalls or shops were situated on the road at a distance of about 50 steps from the spot, whereas shop of ice vendor was about 200 steps away. It is denied that deceased took Rs.50/- from Bablu for consuming liquor or that he scuffled with deceased in order to snatch that amount or that during this process his brother sustained injuries on his eyebrows and eyes or that deceased fell down on road after striking against iron rod fixed in TSR or that his head struck against the road where stones and brickbats were lying. It is further deposed that Bablu has deposed falsely after accepting bribes from accused, but it is admitted that he has made a complaint Mark X without bearing his signature. He has further FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 10 of 65 deposed that public witness witnessed this incident and also made a PCR call, but statement of any public witness was not recorded in his presence. He removed his brother to hospital around 06.00 pm and he himself disclosed the alleged history of incident and probably also disclosed the names of assailants and also that they were riding a motorcycle. He did not give any information that assault had taken place at about 04.00 PM at Shakti Garden. It is further deposed that he removed his brother to GTB hospital directly without taking him to any other private doctor or hospital and when he reached GTB Hospital police officials of PS Jyoti Nagar were already present there. It is further admitted that his signatures were not taken on any document in hospital. On the day of the incident, while staying in hospital at around 10.00 PM, he along-with his brother-in-law Murari Lal visited the PS, but no police official was accompanied them. Police did not record his statement in hospital when he reached at about 10.00 PM and even his signatures were also not taken on any document. It is further deposed that police officials met him in hospital were not seen at PS during visit at about 10.00 PM. He reached hospital from PS at around 11.00 PM. It is further admitted that police did not prepare any document during inspection of place of incident. He has identified his signatures on documents Ex.PW1/B and Ex.PW3/A which were signed on 15.05.2011 and were already recorded at the time of putting signatures on it. He did not produce the clothes of the deceased to the police. It is admitted that there was no previous enmity with accused and even he was not aware about the address of child who informed him regarding the incident. Even he did not lead the police to that child and child was not shown to them. He did not FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 11 of 65 visit PS on 16.05.2011 and did not meet any police official on 17.05.11 also. It is further deposed that he had disclosed in his statement that accused Ajay had taken out of Rs.12,000/- from pocket of pant of his brother, It is further deposed that Ex.PW3/DX does not bear his signature, whereas Ex.PW3/DZ was signed by him in police station.
6.4. PW4 Bablu is another eye witness of the incident but has not supported the prosecution. He did not remember the date, month and year of the incident, but has deposed that about 1-1¼ years back, he along with Jaivir went to Jheel as his TSR was under repairs. From there, Jaivir went to Rohini Court to pay a traffic challan and came back to Jheel at about 3:00 pm and during this period, he remained there. It is further deposed that at about 3:30 pm, deceased with Jaivir and his father also reached there and asked for Rs. 50/- for liquor and he paid it. It is further deposed that all of them reached near Shakti Garden and at railways crossing, Jaivir and his father got off of TSR, whereas he along with Dharambir bought ice. It is further deposed that when they reached near Safed Mandir, Jaivir snatched of Rs. 50/- from Dharambir and during this process, Dharambir struck his forehead and lips against the rod of auto rickshaw and became unconscious. They sprinkled water on his body and face but he did not gain conscious. It is further deposed that when Dharambir did not gain conscious, Jaivir asked him that he was under the influence of liquor and would come home himself after coming out of influence of liquor. It is further deposed that Dharambir sustained injuries when he hit against auto rickshaw and fell down on ground but he went to the house of Jaiver and after sometime, they FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 12 of 65 heard that one autowala was lying there and they reached there and found Dharambir unconscious. Jaivir borrowed his mobile phone and informed PCR on 100 number. It is further deposed that Jaivir and his father did not allow PCR van to remove Dharambir from that place and time lost during this process and he along with Jaivir and his father removed him to GTB Hospital by TSR, however hospital authorities asked Jaivir and his father to deposit some amount before hospitalization due to they also picked up quarrel with them. In the meanwhile, mother and sister of Dharambir also reached there and pleaded to hospital staff only then they admitted him to hospital, but by that time, his condition had deteriorated. Police called him to PS after about 3-4 days and obtained his signatures on 6-7 papers.
6.4.1. During cross examination by Ld. APP for State, he has admitted that he used to reside at House No. 183, Gali No-6, near Safed Mandir, Shakti Garden, Delhi and used to hire TSR from Dharambir against charges. It is further deposed that the incident took place on 14/05/2011 and at about 3:30 pm, he went to buy ice on the date of incident. It is denied that he knew both accused prior to this incident or that he saw that both accused arrived by Motorcycle No. UP-76E-4191 or that both had quarreled with Dharambir or that accused Vikas inflicted brick blow on the head of Dharambir or that Jaivir also arrived there and informed to PCR by his mobile phone. It is further deposed that police obtained his signatures on Ex.PW4/B and also obtained his signatures on some other documents, but it is denied that both accused were arrested at his instance. It is further admitted that documents Ex.PW4/C, Ex.PW4/D and Ex.PW4/E bear his FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 13 of 65 signatures, however it is denied that police joined him in investigation. It is admitted that Dharambir was in habit of consuming liquor and fell down on a number of occasions even in the presence of his father. It is further deposed that Dharambir got hit his forehead and lips from the rod of auto and started bleeding of his injuries and fell down on road and was also hit against the road and no blood stains fell on his clothes when he tried to left him from road. After about 10-15 minutes of reaching home after leaving the deceased at the spot, they heard about Dharambir being injured. He witnessed the blood lying at the spot around his head. They reached GTB Hospital at about 06:30 pm. 6.4.2. During cross examination by accused, he has admitted that he used to reside in the house of Jaivir and started residing about 20-25 days back. It is further admitted that it was around 4:15 pm they left Dharambir unattended whereas on 1-2 occasions earlier he was found under the influence of liquor but came back to home after coming out of the influence of liquor. It is further admitted that Jaivir and he reached house at 4:30 pm and heard about the accident and reached to the spot where Dharambir was lying unconscious and the people present there disclosed that he was hit by some vehicle which fled away, however brick pieces were lying at the spot where Dharambir was lying. It is further deposed that police personal namely Om Parkash met him in hospital and Jaiver was also with him at that time, they informed him that they were not aware as to how Dharambir sustained injuries. Even doctors also inquired about the injuries but they replied similarly. He along-with Jaivir remained in hospital throughout night and Jaivir did not leave his company.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 14 of 65 6.5. ASI Jagir Singh was posted as DO with PS Jyoti Nagar on 14/05/2011 between 4:00 pm to 12.00 midnight. At about 4:55 pm, he received an information of accident near Shakti Garden near Saboli crossing, through wireless operator from HC Satpal of PCR vide mobile number 9718549243. On the basis of this information, he recorded DD No.15A and handed over to HC Om Prakash. Again, at about 7:50 pm, he recorded the FIR Ex.PW5/A after making his endorsement on rukka Ex.PW5/B and assigned the investigation to ASI Rambir and got delivered FIR and rukka to him through Ct. Suresh.
6.6. PW6 HC Sunil Kumar was working with PS as MHC(M). On 14/05/2011, ASI Rambir deposited sealed Pulinda containing clothes of deceased comprising of shirt and blue pant of deceased vide entry Ex.PW6/A. Again, on 15/05/2011, ASI deposited two sealed parcels containing blood-stained earth control and blood smeared brick piece and one bullet motorcycle bearing No. UP-76C-4191 vide entry Ex.PW6/B. On 28/06/2011, he sent sealed parcels to FSL through Ct. Karambir vide RC No. 68/21/2011 and he handed over back AD which is Ex.PW6/C. On 16/01/2012, he received result of FSL with three sealed parcels vide separate entries in Register No.19. During cross examination, he has admitted that the clothes of deceased were deposited on 14/05/2011 at about 5:00/6:00 pm. It is further admitted that he did not obtain signatures of ASI on Register No.19. On 15.05.2011, he received the articles at about 7.00/8:00 pm. FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 15 of 65 6.7. PW7 Ct. Dheeraj joined the investigation on 16.05.2011 with ASI Rambir, Ct. Nem Singh and Bablu. He witnessed the arrest of accused Vikas on the identification of Bablu. ASI Rambir arrested him vide arrest and search memos Ex.PW4/C and Ex.PW4/D. Accused made his disclosure statement Ex.PW7/A and also pointed out the spot of incident vide pointing out memo Ex.PW4/E. 6.7.1. During the cross examination, he has admitted that no information of presence of Vikas in village Saboli was received by PS, but Bablu informed the police about the presence of accused at Shakti Garden at about 9:00 pm on 16/05/2011, however statement of Bablu was not recorded to this effect. They reached at the house of Bablu by their motorcycle and remained there for about 15/20 minutes and reached at Saboli park at about 10.00/10:15 pm and Bablu remained sitting with ASI Rambir. It is admitted that no site plan of the place of arrest of accused Vikas was prepared by IO and public persons were passing through busy road, but IO did not ask anyone to join investigation. It is further deposed that the proceedings were completed within 30/45 minutes and writing work was completed while sitting on stool brought from a nearby Dhaba, but Dhaba people were not asked to join investigation. It is further admitted that no recovery was made from accused who was put up in lock up at about 12 midnight. It is further admitted that place of incident was within the prior knowledge of ASI Rambir and they reached there at about 10:35 p.m., however no person gathered at the spot while preparing pointing out memo. Pointing out memo was prepared while sitting on the ground. It is denied that accused was lifted of his house or that FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 16 of 65 has been falsely implicated in this case after obtaining his signatures on blank papers.
6.8. PW8 Sh. Ankur Jain, the then Ld. MM conducted the TIP proceedings of accused Ajay Kumar, but he refused to participate in TIP proceedings on the pretext that he had been shown to the complainant during the court appearance. TIP proceedings are Ex.PW8/A to Ex.PW8/D. Accused was warned about adverse inference in case of refusal of TIP, but still he refused.
6.9. PW9 Dr. Vipin Chaudhary has proved the MLC of injured/deceased Dharambir which is Ex.PW9/A and has deposed that the alleged history of patient was given by his brother and patient had history of lost consciousness for last one hour. He noticed one lacerated wound measuring 2 x 0.5 cm on his left parietal region.
6.10. PW10 Sh. Sonu Agnihotri, the then Ld. MM conducted the TIP proceedings of accused Vikas, but accused refused to participate in TIP proceedings on the pretext that he had been shown to the witness. Proceedings are Ex.PW10A to Ex.PW10/D. Accused was warned about adverse inference in case of refusal of TIP, but still he refused.
6.11. PW11 Amrita Singh, Nodal Officer of Idea Cellular, has proved the record of Mobile Number 9718549243 registered in the name of one Anokhe Lal C/o Vikas, Sector 63, Noida, Permanent address: No. 534, Shukar Bazar, Bhawapur, Ghaziabad, UP. The connection was issued FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 17 of 65 against ID of ration card. ID and application form are Ex. PW11/A. CDR of the mobile phone for the period w.e.f. 14/05/11 to 15/05/11 is Ex.PW11/B and certificate Under Section 65B of Evidence Act is Ex. PW11/C. 6.12. PW12 Ct. Karambir was posted with PS Jyoti Nagar and on 28/06/2011, he deposited three sealed parcels with FSL after collecting from MHC(M). He handed over the acknowledgement to MHC(M).
6.13. PW13 Ct. Satyapal was posted with PCR as HC. On 14/05/2011, he was working as channel operator in the shift between 2.00 p.m. to 8.00 p.m. He received a call that "Shakti Garden near saboli fatak ke pass accident hua hai aur injured hai". He filled up PCR form and dispatch the information to wireless operator. Later on, PCR vehicle was also sent to the spot and formation was noted in PCR form Ex.PW13/A. 6.14. PW14 ASI Rambir was the first IO and conducted most of the investigation of this case. On assigning investigation on 14/05/2011, he along with Ct. Suresh visited the spot of incident. During his visit to the spot of incident, he met the brother of deceased Jaivir at the spot who claimed himself to be an eye witness to the incident. He prepared the site plan of the spot at the instance of Jaivir which is Ex.PW14/A. Jaivir produced one shirt of blue color having 6 buttons, out of which, one was broken and one pant of blue color, shirt having blood stains and claimed that those clothes were of deceased. He seized and sealed the clothes vide seizure memo Ex.PW1/B. On 15/05/2011, he received DD No.9A regarding FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 18 of 65 the death of deceased at GTB Hospital and visited the house of Jaiver and got him joined into investigation and lifted and seized blood-stained brick piece as well as blood earth control vide seizure memo Ex.PW3/A. He prepared inquest papers Ex.PW14/B of the deceased and got conducted postmortem on his dead body and handed over the dead body to his father vide receipt Ex.PW3/DZ. He also clicked the photographs of the spot of incident by his mobile phone which are Ex.PW14/A and Ex.PW14/B. During the investigation, he also met Bablu who disclosed that he was going to buy ice when saw that both accused Ajay and Vikas were quarrelling with deceased and Vikas and Ajay caused injuries to him. He also disclosed that he along with the brother and father of deceased removed him to hospital and also claimed to identify the accused persons. He along with Bablu made search for accused and, at about 9:20 pm, they noticed motorcycle bearing no. UP-76C-4191 being rode by the accused Ajay and Bablu identified him to be an accused and he arrested him. On 16/05/2011, he moved an application for TIP of the accused which is Ex.PW14/C, but accused refused to participate in TIP proceedings. He also made search for co-accused Vikas, who was also arrested on 16.05.2011 at about 10:00 pm in the presence and identification of Bablu. Accused was arrested after interrogation and also made his disclosure statement and also pointed out the spot of incident vide pointing out memo. On 19/05/2011, he again moved an application for TIP of accused Vikas, but he also refused to participate in TIP. He has identified the case property as Ex.P1 to Ex.P3. He has also identified the motorcycle through photographs Ex.P1/1 and Ex.PW1/2.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 19 of 65 6.15. PW15 Dr. Meghali Kelkar conducted the postmortem on the dead body of the deceased Dharambir and prepared Post Mortem Report Ex.PW15/A. She noticed 6 injuries on the dead body of the deceased and opined the time of death about 4 hours. The cause of death was "shock as result of antemortem injury to head produced by blunt force impact".
6.16. PW16 Insp. Mukesh Jain, Draftsman has proved scaled site plan Ex.PW16/A which was prepared during his visit to the spot of incident. He has admitted that he has not shown the position of witness in the site plan.
6.17. PW17 Ct. Karambir was posted as Duty MM in GTB Hospital and on 15.05.2011, he received the information of death of injured Dharambir and conveyed to PS. 6.18. PW18 Ram Suresh is the father of deceased and has proved that on 14.05.2011, at about 4:00 pm, his son Dharambir was robbed of Rs.12,000/- by accused Ajay and Vikas. He was informed at his hom by some small children about this robbery and immediately reached to the spot of incident and saw that his son was lying on the road and was bleeding of his mouth and back side of his head. He also witnessed the injuries in his legs. It is further deposed that his son Jaivir had already reached there prior to him and made a PCR call, but before the arrival of police, he along with Jaivir removed him to GTB Hospital by TSR. It is further deposed that some money was required for treatment of Dharambir due to Jaivir and he left to arrange money and even Jaivir and Bablu also donated blood to Dharambir.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 20 of 65 Jaivir and he remained present in GTB Hospital throughout night, but Dharambir expired on next day at 7:00 am. It is further deposed that he identified the dead body of the deceased vide statement Ex.PW18/A. It is admitted during the cross examination that he did not disclose the facts deposed during his examination in chief to police as police did not ask.
6.19. PW19 Insp. Inderpal Singh was assigned the investigation of the case on 06.06.2011. During investigation on 25.06.2011, ASI Rambir delivered post mortem report to him, whereas on 28/06/2011, he got deposited the exhibits with FSL through Ct. Karambir. He also got inspected the spot of incident through draftsman Insp. Mukesh Jain and got prepared scaled site plan. He prepared challan and filed before the court. The FSL reports are Ex. PX and Ex.PY. No DD entry of receiving the case file was lodged on 06/06/2011. Insp. Mukesh has shown his presence in scaled site plan.
7. I have heard the arguments of both parties and perused the record. This case started with an information recorded by DD No.15-A dated 14/05/2011 at 4:55 pm, on receiving of the information by Wireless Operator regarding an ACCIDENT received from mobile No. 9718549243. This DD entry was assigned to HC Om Prakash. PCR van was also informed and sent to spot of incident and PCR official passed on the information to head office, which is material. The information is as under:
On 14/05/2011 at 17:12:57 Moke par injured ko TSR me le gaye hai, humne kaha injured ko humari gadi mai bhejo to bole hum aap ke sath hospital nahi bhejge aur expire ho FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 21 of 65 gaya to police par blame lagaynge. Again on 14/05/2011 at 17:22:33 from GTB Hospital, injured abhi tak hospital nahi aaya hai. Again at 17:23:45, injured ka accident kisse hua ha ye bhi nahi bataya tha. Again at 17:30:11, injured hospital aa gaya hai I/C van sath gaye hai wait for halat. On 14/05/2011 at 17:41:21, from baker 15 = Dharambir s/o Ram Suresh aged 27 years R/o Jwala Property dealer ke paas safed mandir, shakti garden near saboli fatak jo ghar ja raha tha saboli fatak ke pass m/cy no U/K per 2/3 ladke sawar the jinohane pahle padel dharambir ko takker mari phir marpit kerke 12000/- Rs. Chheen kar le gaye. Dharambir ne un ladko ko pahchan liye tha. Jo ladke ke father aur brother hospital le kar aaye hai dharambir behosh hai ye halaat father aur brother ne bataye hai. On 14/05/2011 at 17:58:01, injured ka father bata raha hai call se 10 minutes pahle hi wardat hai injured ko father ne GTB Hospital mai admit karwaya hai.
8. After going through the abovesaid information flashed by the PCR van to its head office, it stands proved that the PCR van was well reached in time at the spot of incident to remove the injured to hospital, but the family members of the injured/deceased preferred to remove him to hospital by TSR. Not only this, they also threatened to put the entire blame of death of the injured/ deceased on the police in case of his demise. Even injured was the case of accident but family members did not tell anything about the FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 22 of 65 incident of accident. Admittedly, injured was removed to hospital by the brother of injured/deceased and MLC of the deceased was also prepared on 14/05/2011 at 05:55 pm, which has also proved by PW9 as Ex.PW9/A, as per which, injured was brought by brother Jaivir, who also furnished the alleged history of incident as physical assault at 4:00 pm on 14/05/2011 near Shakti Garden, whereas patient was Unfit for Statement. However, nothing was disclosed about the mode and manner of the accident regarding which the information was flashed. Even there is also dispute of timings of incident disclosed in different documents. Time of incident proved by rukka which is Ex.PW1/B was 3:40 pm, whereas deceased was got hospitalized at 05:55 pm despite the fact that hospital was not much far away from the spot of incident. Injured Dharmbir expired on 15/05/2011 at about 08:45 am and information regarding his death was received by PS vide DD No-9B. This case was initially registered u/s 308 IPC and has been investigated u/s 304 and 302/34 IPC. Charge sheet has been also filed u/s 302/34 IPC and even charges also framed u/s 302/34 IPC against both the accused.
9. During the trial, prosecution has examined the brother of deceased Jaivir as eye witness/PW3, whereas another eye witness PW4 Bablu has deposed many facts against the testimony of PW3 Jaivir. As such, the testimonies of both eye witnesses are different to each other, due to it has to be determined first as to which particular eye witness has deposed truth before the court. It has also to be determined as to whose testimony i.e. PW3 or PW4 has proved the charges against the accused.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 23 of 65
10. Before ascertaining the testimonies of PW3 Jaivir and PW4 Bablu, their presence at the spot of incident has to be ascertain. Admittedly, on receiving the DD No.15A, PW1 HC Om Prakash and Ct. Suresh visited the spot of incident, but injured had already been removed to GTB Hospital. They visited GTB Hospital and collected the MLC of injured, but did not find any eye witness of the incident at hospital. PW1 prepared rukka Ex.PW1/B on the basis of DD entry which is Ex.PW1/A and got registered FIR. Investigation was assigned to ASI Rambir who along with Ct. Suresh visited the spot of incident where he found Jaivir, who claimed himself to be an eye witness to the incident and also produced the blood smeared clothes of the injured, which were seized vide seizure memo Ex.PW1/B. However, presence of eye witness Jaivir at the spot during incident requires strict proof, especially when the other eye witness Bablu has not supported the PW3.
11. Though the accused persons have faced the trial u/s 302/34 IPC, yet Ld. Counsel for the accused has argued that it was a case of accident caused by unknown person/s and both accused were not involved in this case. Ld. Counsel for the accused has further argued that even after the conclusion of trial this fact remains doubtful, as to whether deceased sustained injuries by accident or were caused by the assailants? Even the motive of the accused persons is also not clear as the alleged theory of robbery of Rs. 12,000/- is afterthought and planted by the prosecution during trial after realizing that absence of motive was going to hamper the outcome of this case. On the other hand, Ld. APP for State has argued that this case is based upon the FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 24 of 65 direct testimony of eye witnesses due to motive was immaterial to decide the guilt of the accused persons and prosecution was not required to plant motive of the accused persons to commit this offence and argument is afterthought. It is further argued that both accused robbed the deceased and when he opposed their act, they committed his murder and this fact has been proved by the eye witness/PW3 despite the hostile testimony of PW4 Bablu. It is further argued that PW3 Jaivir has proved that he witnessed this incident and both accused killed his brother in his presence and fled away. It is further argued that the testimony of PW3 has supported the prosecution and the hostile testimony of PW4, against the testimony of PW3, is not supposed to be relied upon. Whereas, Ld. Counsel for the complainant has argued that the investigation of the police was biased since beginning, as the motorcycle involved during the incident belonged to some police official due to police did not take the investigation seriously. It is further argued that the first information of incident vide DD No15A was also dispatched by police official who was interested in this case and misled the investigation by recording the cause of incident as accident. It is further argued that PW3 Jaivir was the eye witness to the incident and was busy in arranging blood as well as money for the treatment of his brother due to he could not meet the police official in hospital and his testimony cannot be disputed merely because he did not meet the police officials in hospital, whereas he met the police at the spot of incident as proved by PW1. It is further argued that the complainant has been opposing the faulty investigation since beginning by moving different applications before the Court of Ld. MM as well as before this court, but still his stand has not been considered. It is further argued FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 25 of 65 that both the accused have committed the murder of the deceased and thereafter, they have managed PW4 Bablu who has turned hostile after accepting the money from accused and this fact has already been reported to the police by the way of a complaint Mark-X lodged against him. It is further argued that the conduct of PW4 is liable to be deprecated and should be punished for giving false evidence. It is further argued that the testimony of PW3 is reliable and has to be considered to convict the accused persons.
12. Before deciding the rival contentions, it is necessary to go through the testimonies of PW3 and PW4 coupled with other material available on record. It is clear by the contents of the DD entry no. 15A that initially the incident was reported as accident and PW3 did not meet the police at the hospital to make a statement, whereas he allegedly met at the spot of incident to ASI Rambir who recorded his statement, as deposed by PW1, but PW3 Jaivir has himself disputed his meeting with any of the police officials on the day of incident, but it will be discussed in details later on. PCR call recorded vide document Ex.PW13/A has contained some observations against the family members of the deceased that they did not allow the PCR van to remove the deceased to hospital and rather alleged that they will put the entire blame upon the police, in case of demise of injured. It is pertinent to mention that by the time the above said documents (Ex.PW1/A and Ex.PW13/A) were prepared, injured was alive. It is beyond explanation as to why family members of deceased including PW3 and PW18 did not allow the PCR van to remove the injured to hospital whereas there was no angle of enmity between the family members of the deceased FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 26 of 65 and PCR officials. It is also beyond explanation as to why they removed the injured to hospital by TSR deliberately whereas the PCR van could have removed the injured to hospital promptly. It may be assumed that the purpose of removal of injured to hospital by a personal vehicle by family member must be of his timely and prompt transportation to get treatment, but MLC of the injured has proved that injured was got hospitalized at about 05:55 pm against the incident at about 3:30/04:400 pm. It is beyond explanation as to why the hospitalization of the deceased / injured was delayed by PW3 and PW18 despite having serious injuries by him and also that they took about 1 to 1 ½ hours in transportation of injured to hospital despite that fact that distance was not too long and there was also utmost urgency. This conduct of the family members is beyond explanation. The possible reason of this delay could be only, either they took him to some other hospital, which has been categorically denied by the PW3 during his cross examination, or that the family members have manipulated certain facts for the reasons best known to them. However, this conduct of the family members was definitely fatal to this case.
13. Not only this, the time of incident is also disputed. As per rukka, which is Ex.PW1/B, time of incident stated to be at 3:40 pm, whereas the first information vide DD No. 15A has proved the time of information at 4:55 pm. Contrary to it, alleged history of the incident given by PW3 Jaivir to doctors and recorded in the MLC of injured, which is Ex.PW9/A, has proved the time of incident was at about 4:00 pm. Even it is assumed that incident had taken place between 3:40 to 4:00 pm, but police reached the FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 27 of 65 spot of incident at 16:59:22 (4:59:22 pm) and by that time the injured was with the family members at the spot itself. It is again beyond explanation as to why family members did not remove the injured to hospital during the period between 3:40 pm to 04:59 pm and for what they were waiting. Another fact which is also material is that the family members themselves did not remove the injured to hospital in time and also stopped the PCR officials to remove him and got him hospitalized at 5:55 pm and vested the period of golden hours of treatment which also resulted fatal to injured. This conduct of the family members especially brother i.e. PW3, who claimed himself to be an eye witness, is strange as well as doubtful and has also created a doubt about the actual time of incident. Actually this delay in transportation of injured to hospital and difference of timings of incident have given a rise to the doubt that the family members were not present during the incident as alleged. In fact, there are many unanswered questions which have to be answered by the prosecution being bound to prove the charges against the accused persons beyond reasonable doubt.
14. Now the reliability of the testimonies of the eye witnesses has to be seen. PW3 Jaivir has been cited as an eye witness to the incident by the prosecution since beginning and even his statement u/s 161 Cr.P.C. Ex.PW3/DA has also proved this fact. As per his testimony, on 14/05/2011 at about 3:30-3:40 pm, he was at his home when a boy informed him about this incident that two men had been beating his brother Dharambir. He immediately reached the spot and saw that accused Ajay had caught hold his brother, whereas other accused Vikas hit a brick on his head.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 28 of 65 Meanwhile, Bablu also reached there and also witnessed this incident. Even PW4 Bablu also made his statement u/s 161 Cr.P.C. before the police as of an eye witness, however he has changed his statement substantially during his examination before the court. In such situation, this court has a peculiar situation where one eye witness has deposed in support of prosecution, but other eye witness has not supported. Now it is to be seen as which particular witness has deposed truth. Section 134 of Evidence Act has laid down that no particular number of witnesses required to prove a fact and one witness is enough to prove a fact, provided his testimony must be reliable. Ld. APP for the State has heavily relied upon the testimony of PW3 to prove this case, whereas defence has relied upon the testimony of PW4 to discard the testimony of the PW3.
15. Before proceeding further, it has to be seen as to what is the legal proposition to deal with the testimony of two eye witnesses when one of them has deposed the facts against the other. The court while dealing with the testimonies of multiples witnesses must keep in mind the law of appreciation of evidence laid down by The Hon'ble Apex Court which has divided the reliability of witnesses in three categories in Vadivelu Thevar v. State of Madras AIR 1957 SC 614 as under:
(a) Wholly reliable.
(b) Wholly unreliable. and
(c) Neither wholly reliable nor wholly unreliable.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 29 of 65 In the first category of proof, the court should have no difficulty in coming to its conclusion either way, it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses.
16. So far the reliability of partial testimony of an eye witness is concerned, the principle 'False in uno falsus in omnibus' (false in one thing, false in everything) is to be seen, but it not a mandatory rule of evidence in India and it is merely a rule of caution as held by the Hon'ble Supreme Court of India in Ram Udgar Singh v. State of Bihar (2004) 10 SCC 443 thereby relying upon State of Punjab v. Jagir Singh (1974) 3 SCC 277 and Lehna v. State of Haryana (2002) 3SCC 7 where it is held that;
"even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove the guilt of the accused, notwithstanding the acquittal of a number of other accused persons, his conviction can be maintained. It is the duty of the court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the court to convict an accused notwithstanding the fact that the evidence has been found FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 30 of 65 to be deficient to prove the guilty of the other accused persons. Falsity of a particular material witness or a material particular would not ruin it from the beginning to end."
17. It is further held in case titled Bhagwan Singh v. State of Haryana, [1976] 2 SCR 921; Rabinder Kumar Dey v. State of Orissa, [1976] 4 SCC 233 and Syed lqbal v. State of Karnataka, [1980] 1 SCR 95 that;
"the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof."
18. It is further held in Surendra Singh Rautela Alias Surendra Singh Bangali v. State of Bihar (Now state of Jharkhand) (2002) 1 SCC 266 that "the evidence of eye witness cannot be discarded merely because another eye witness had not supported the prosecution case and was declared hostile and conviction was upheld."
In view of the above said case law, it stands proved that the testimony of an eye witness cannot be discarded merely because of the hostile testimony of another eye witness and even partial testimony of a hostile witness may be used to corroborate the testimony of other witness. In the present case, the testimony of PW4 is of hostile witness, whereas the testimony of PW3 has FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 31 of 65 to be considered after adjudicating it as a testimony of wholly reliable, wholly unreliable or neither wholly reliable nor wholly unreliable witness.
19. To ascertain the reliability of the testimony of eye witness/PW3, it is necessary to go through his testimony. He has deposed that on 14/05/2011 at about 3:00-4:00 pm, he was present at his home and was informed by a young boy that two boys had been assaulting his brother on road and he immediately rushed to the spot and saw that accused Ajay and Vikas were assaulting his brother Dharambir. Accused Ajay caught him hold and Vikas hit a brick on his head. He knew both accused prior to this incident as they used to roam in the colony riding a motorcycle bearing No. UP-76E-4191 and that motorbike had insignia of police in blue and red paint having cross sword. It is further deposed that he saw accused Vikas hitting his brother by a brick on his head and his brother fell down on the road. It is further deposed that accused Ajay also took out amount of Rs. 12,000/- from the pocket of his brother and that amount was comprising of Rs. 500/- notes, as given by him to the deceased and both the accused ran way. He made a PCR call to the police and removed his injured brother to hospital.
20. The above said testimony of PW3 has been contracted by his own testimony recorded during cross examination and also by the testimonies of other witnesses as well as documents prepared during the investigation. First of all, he has admitted that he informed the police and the police record has proved that the first call was made by mobile no. 9718549243 and was recorded vide DD No. 15-A (Ex.PW1/A), but that information was FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 32 of 65 regarding an accident. Second call was pertaining to the information reverted back by PCR van to the Head Office vide PCR record Ex.PW13/A that PW3 did not allow PCR officials to remove the injured to hospital and threatened to blame them if something went wrong. PW3 has also admitted during cross examination that he made a PCR call and Ex.PW1/A is the only PCR call record from the above said mobile phone. PW3 has admitted that this mobile number belongs to him and was in working condition and number was subscribed in the name of Bablu. However, he has failed to produce any proof that he ever purchased this mobile phone/ connection from Bablu or that this number belonged to him. Contrary to it, PW11 Amarnath Singh from Idea Cellular Company has proved the record pertaining to this mobile connection, as per which, this connection was allotted to one Anokhe Lal C/o Vikas, Sector 63, Noida with permanent address-534, Sukar Bazar, Bhawapur, Ghaziabad, UP. He has also produced the application form and ID proof regarding issuance of this connection as Ex.PW11/A(colly). By these documents, it stands proved that this number was allotted to Anokhe Lal and not to Bablu as deposed. Though CDR of this number Ex.PW11/B has proved that it has 4 entries at 100 number, yet in the absence of examination of Anokhe Lal, it could not be ruled out that he did not make such calls to police or that he was not the user of this mobile connection or that PW3 was the sole user of this mobile connection, especially when PW3 has deposed during the subsequent cross examination that "as regards any public person having witnessed the incident and then his statement recorded by the police I can only say that public person had given 100 number call and beyond that no statement of any other public FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 33 of 65 person had been recorded by the police in his presence". This testimony has further created a theory of another complainant / informant who made a PCR call and without examination of this witness/ informant by the police, actual facts could not come before the court. That informant could have been an eye witness to the incident but, in the absence of his examination, a material witness has been missed by the prosecution and it is definitely fatal to this case. In India, it is not unusual that family members or friends use mobile connections in the name of others, but in this case PW3 and Anokhe Lal were/ are not the family members or relatives or friends to prove the authenticate use of the mobile number of Anokhe Lal by PW3. Even it is assumed for the sake of arguments that PW3 made PCR calls as reflected in CDR Ex.PW11/B, then also 4 calls were made to PCR/100 number on 14/05/2011 between 04:46:14 pm to 04:56:39 pm, whereas Ex.PW1/A (DD No.15A) has recorded only single call and that too at 04:55 pm. As per CDR first call at 4:46:14 was of 107 seconds and must be pertaining to a detailed information, but no such record of this call has been proved on record. Even the details of this Ex.PW/A have been disputed by PW3 who has deposed that he informed the PCR about the accused persons that they killed his brother, however this fact is not the part of this PCR call, due to this fact could not be proved. As such, it is disputed that PCR call was made by PW3 or someone else or that PW3 has deposed falsely to this effect.
21. Further, the conduct of PW3 is also contradictory in itself. On the one hand, he did not allow the PCR to remove his brother / deceased to GTB Hospital and himself removed him to hospital by TSR directly, as FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 34 of 65 admitted during cross examination, on the other hand he took about 1½ to 2 hours in removing the injured to hospital, whereas GTB Hospital was just 10-15 minutes away from the place of incident. As such, this conduct of the PW3 as eye witness is beyond explanation and indicates that he has manipulated some facts.
22. Besides it, one another fact is also material which has created a doubt in the testimony of PW3 as eye witness. PW3 has deposed that he disclosed the name of the assailants to doctors, as he knew them much prior to the date of incident, but as per MLC of injured names of assailants have not been disclosed in MLC despite furnishing the alleged history of incident, as also proved by PW9. During cross examination, PW3 has deposed that he disclosed the name of assailants to the doctor who prepared MLC, but this fact has been disputed by PW9 who prepared MLC. In fact, the names of the assailants have not been mentioned in MLC and it was possible only when their names were not given/ disclosed by PW3. Even it is assumed for the sake of arguments that doctor who prepared MLC did not record the names of assailants as disclosed by PW3, then also his testimony would make it clear that he came to know about the names of the accused persons only after their arrest and it was not possible to him to disclose their names which were not known to him at the time of preparation of this MLC. Admittedly, both accused were arrested on 15/05/2011 and 16/05/2011 respectively, whereas MLC was prepared on 14/05/2011 and it was not possible to him disclose their names one day prior to their arrest. PW3 has categorically admitted that prior to the arrest of the accused persons, he did FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 35 of 65 not tell the names of the accused persons to the police and this testimony has also been corroborated by PW1 also who has duly admitted during his cross examination that Jaivir did not disclose the parentage and address of the accused persons on 14/05/2011. PW3 has further admitted during cross examination that he did not tell the names of the assailants but only disclosed their descriptions at 100 number, whereas PCR form is silent about any such description and rather has created a doubt in the entire story of PW3 and has proved that deceased met with accident. Similarly, he also informed the PCR as admitted and even did not disclose the names of assailants and stated that to identity the assailants, if shown and both these facts are self-contradictory. As such, the testimony of PW3 is not reliable as eye witness.
23. Further, PW3 has claimed himself to be an eye witness who witnessed the incident by his own eyes when was informed by a child. He allegedly witnessed that both the accused had been assaulting the deceased. However, police have not verified the identity of that child who informed him and even PW3 was also not aware about the identity of said child. That child could have been an eye witness to the incident being present at the spot and his non examination was definitely fatal to this case. On the other hand, it is beyond explanation as to why PW3 did not disclose the identity of child to the police who must be his neighbor or resident of same locality as he knew the house of PW3 to inform him. In fact, there are so many contradictions in the testimony of PW3 which have created a doubt in the story of prosecution as an eye witness.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 36 of 65
24. Not only the testimony of PW3 is contradictory in itself but also contradicted by other witness i.e. PW18 Ram Suresh. PW18 has deposed that on 14/05/2011, his son Dharamvir was robbed of Rs. 12,000/- by the accused persons Ajay and Vikas and this incident occurred at 4:00 pm and he was also disclosed this fact by some children. In fact, the information of this incident was given to him by some children, but it was different and contradictory to the information to PW3, whereas both were eye witnesses to the incident. PW1 has deposed that he visited the hospital on receiving the information of the incident but he did not find PW3 there and PW3 has tendered an explanation to it that doctors had asked him to arrange blood for the deceased, whereas this explanation has been contradicted by PW18 thereby deposing that he went to arrange money for treatment. It is pertinent to mention here that the deceased was not taken to any private hospital and was taken to government hospital directly in emergency and there was no such requirement to arrange money or blood in government hospital for emergent treatment. If any such blood or money is required, doctors usually asked the relatives arrange for it, but treatment is not to be stopped. Even it is assumed for the sake of arguments that he went to arrange blood then his family members must have been found there. The doctor who prepared MLC of the deceased has been examined but has not deposed that he asked to PW3 or PW18 to arrange such money or blood for treatment of deceased. Rather no examination of this doctor to this effect has been conducted. Even otherwise the family members of the deceased also reached there and they were supposed to meet there, but testimony of PW2 would show that none from the family members met him there upto 7:30 pm. On the other hand, FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 37 of 65 PW3 has again deposed contradictory that police officials of PS Jyoti Nagar met him at Hospital, whereas none of the police officials has deposed that they met PW3 in hospital. It is beyond explanation as to why he did not make statement in hospital if met to the police officials and why rukka has got mentioned that no eye witness found at the spot of incident or hospital. As such, it is material contradiction and again has created a doubt in the testimony of PW3.
25. Similarly, PW3 has further deposed that accused Ajay also robbed Rs. 12,000/- out of the pocket of deceased Dharambir and this amount was given to deceased by him, but this testimony of PW3 is against his initial testimony u/s 161 Cr.P.C. which is Ex.PW3/DA in which nothing such was disclosed. Not only this, PW3 has also not furnished any proof of this amount and even police have also not collected such evidence to prove that such amount was ever in possession of the deceased or robbed by the accused persons. This fact is relevant because PW4 Bablu has deposed that deceased snatched / borrowed of Rs. 50/- from him to drink liquor and if deceased borrowed Rs. 50/- from PW4, then how he got this amount. Similarly, PW4 has also deposed that PW3 snatched Rs. 50/- from the deceased and during this process he struck against the auto and sustained injuries. It is self-contradictory if deceased had Rs.12,000/-, then why he borrowed Rs. 50/- and why PW3 snatched such amount from him, if he had given Rs. 12,000/- to him. Though the testimony of the PW4 has not been much relied upon by the prosecution, yet there is no bar to use some portion of testimony to check the veracity of testimony of other witness. As such, FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 38 of 65 this fact also remained unproved that deceased was in possession of such Rs. 12,000/- or was robbed by the accused persons.
26. Further, PW3 has deposed that both the accused were on Motorcycle No. UP-76E 4191, whereas the motorcycle seized by the police vide seizure Ex.PW1/E has proved that it was bearing Registration No. UP-76C-4191. In fact, motorcycle seized by the police and the number deposed by PW3 was altogether different and this contradiction is also fatal. It is pertinent to mention here that the police have not collected any evidence that this motorcycle was ever used by accused during the incident. The possession of this motorcycle with the accused could have been proved through the owner of the vehicle also, as police have not examined the owner to ascertain the number of the motorcycle as well as its alleged used during the incident.
27. Another material aspect is seizure of the clothes of the deceased by the police. PW3 Jaivir handed over the clothes of the deceased, which were allegedly worn by him at the time of incident, to the police and police seized those clothes. These clothes were allegedly handed over to him by the doctors of GTB Hospital. However, seizure of these clothes is also disputed. The deceased was hospitalized in his uniform of TSR driver and such clothes ought to be seized by the doctors. It is beyond explanation as why these clothes were handed over to PW3 by the doctors, whereas the clothes had blood stains and was material evidence and ought to be seized by the doctors who usually conduct Post Mortem on the dead body of deceased. In any case, such mode and manner of seizure of clothes creates a FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 39 of 65 doubt. Blood-stained clothes of the deceased were vital part of evidence but these remained in the possession of PW3, even for some short time, creates a doubt that evidence could have been manipulated or tempered with. However, before assuming it adversely, it is to be seen as to whether police seized this vital evidence immediately or not. Admittedly, injured Dharambir expired on 15/05/2011 and clothes of deceased were seized on 14/05/2011 vide seizure memo Ex.PW1/B as prepared by ASI Rambir. It is pertinent to mention here that the investigation of case u/s 308 IPC was being conducted by ASI on 14/05/2011 as injured was alive, but still seizure memo of these clothes is containing section 302/34 IPC. It is beyond explanation as to how and why this section was inserted in seizure memo whereas injured was alive. There may be only reason for mentioning this section 302/34 IPc that this document was prepared only after the death of injured on 15/05/2011, especially when PW3 has admitted that he signed the documents in PS on 15/05/2011, whereas accused Ajay had already been arrested u/s 308/34 IPC as per his personal search memo Ex. PW1/C. It is pertinent to mention here that the Arrest Memo of the accused Ajay Ex.PW4/B is containing sections 308/304/302/34 IPC under which accused was arrested, whereas his disclosure statement Ex.PW1/D was recorded u/s 308/304/34 IPC and might be after the death of injured. On the other hand, pointing out memo Ex.PW1/F has been prepared u/s 304/34 IPC meaning thereby deceased had already been expired. As such, IO has manipulated the documents and he arrested the accused first and recorded his disclosure statement after the death of the injured and similarly the other documents.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 40 of 65
28. Further, prosecution has alleged that PW3 handed over the clothes on 14/05/2011 itself, whereas PW3 has deposed during cross examination that police officials did not meet him during his stay in hospital. Rather, he allegedly visited the PS along with his brother-in-law Murari Lal in late night, but no police official was accompanied him and even his statement was also not recorded on that day and they returned back to hospital. He remained in hospital between 11:00 pm to 5:00 am on next day and did not go with police officials for any investigation purpose. It is again beyond explanation as to how police seized the clothes of the deceased, if he did not meet them. As such, this seizure memo by which clothes have been seized has been prepared later on and not in the manner in which projected.
29. Not only this, on 15/05/2011 police also seized blood-stained earth and blood smeared brick from the spot in the presence of PW3 vide seizure memo Ex.PW3/A, which was also sent to FSL. Again, this fact is relevant that incident took placed on 14/05/2011 and the spot of incident was a public place but police did not bother to protect the spot of incident and spot remained accessible to public at large unprotected for whole one day and, in such situation, it may not be ruled out to manipulate or destruct the material evidence. PW1 has admitted during his cross examination that no police official was asked to remain present at the spot when they proceeded to GTB Hospital from the spot and blood-stained earth and pieces of bricks were also not lifted on 14/05/2011. As such, seizure of such material evidence was also not beyond doubt. If the seizure was doubtful, then the same of FSL report based upon such seizures.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 41 of 65
30. Further, PW3 has admitted that place of incident was surrounded by the shops and public persons, but strangely none of them witnessed this incident and have not been made witness to this case.
31. Admittedly, PW3 is the real brother of deceased and is a related witness. Ld. Counsel for the accused has argued that the testimony of PW3 is liable to be rejected being a testimony of a related and interested witness. It is further argued that even no reliance could be placed on such testimony which is otherwise not inspiring confidence and is liable to discarded, and benefit has to be given to accused. On the other hand, Ld. Addl. PP for the State has argued that the testimony of PW1 is of a reliable witness and his testimony is of a natural witness, irrespective of his relationship with the deceased and this testimony is sufficient to convict the accused persons.
32. I have heard the argument of both parties and perused the record. Before deciding the fate of testimony of PW3, it is necessary to go through the law regarding appreciation of testimony of a related and interested witness. The law laid down in Raju Alias Balchandran and Ors. v. State of Tamil Nadu, (2012) 12 SCC 701 is relevant as under:
21. What is the difference between a related witness and an interested witness? This has been brought out in State of Rajasthan v. Kalki, (1981) 2 SCC 752. It was held that:
"...7 True, it is, she is the wife of the deceased; but she cannot be called an "interested" witness. She is related to the deceased. "Related" is not equivalent to "interested". A witness may be called "interested" only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 42 of 65 a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested"."
22. In light of the Constitution Bench decision in State of Bihar v. Basawan Singh, AIR 1958 SC 500, the view that a "natural witness"
or "the only possible eyewitness" cannot be an interested witness may not be, with respect, correct. In Basawan Singh, a trap witness (who would be a natural eyewitness) was considered an interested witness since he was "concerned in the success of the trap". The Constitution Bench held:
" 15. . . . The correct Rule is this: if any of the witnesses are accomplices who are particeps criminis in respect of the actual crime charged, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the court may even look for independent corroboration before convicting the accused person."
23. The wife of a deceased (as in Kalki), undoubtedly related to the victim, would be interested in seeing the accused person punished - in fact, she would be the most interested in seeing the accused person punished. It can hardly be said that she is not an interested witness. The view expressed in Kalki is too narrow and generalized and needs a rethink.
24. For the time being, we are concerned with four categories of witnesses - a third party disinterested and unrelated witness (such as a bystander or passer-by); a third party interested witness (such as a trap witness); a related and therefore an interested witness (such as the wife of the victim) having an interest in seeing that the accused is punished; a related and therefore an interested witness (such as the wife or brother of the victim) having an interest in seeing the accused punished and also having some enmity with the accused. But, more than the categorization of a witness, the issue really is one of appreciation of the evidence of a witness. A court should examine the evidence of a related and interested witness having an interest in seeing the accused punished and also having some enmity with the FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 43 of 65 accused with greater care and caution than the evidence of a third party disinterested and unrelated witness. This is all that is expected and required.
25. In the present case, PW-5 Srinivasan is not only a related and interested witness, but also someone who has an enmity with the appellants. His evidence, therefore, needs to be scrutinized with great care and caution.
26. In Dalip Singh vs. State of Punjab, 1954 SCR 145 this Court observed, without any generalization, that a related witness would ordinarily speak the truth, but in the case of an enmity there may be a tendency to drag in an innocent person as an accused - each case has to be considered on its own facts. This is what this Court had to say:
"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 relative 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 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 generalisation. 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."
27. How the evidence of such a witness should be looked at was again considered in Darya Singh v. State of Punjab, (1964) 3 SCR 397. This Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities taken into account. It was observed that where the witness shares the hostility of the victim against the assailant, it would be unlikely that he would not name the real assailant but would substitute the real assailant with the "enemy" of the victim. This is what this Court said:
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 44 of 65 "There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In that case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it........ [I]t may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
28. More recently, in Waman v. State of Maharashtra, (2011) 7 SCC 295 this Court dealt with the case of a related witness (though not a witness inimical to the assailant) and while referring to and relying upon Sarwan Singh v. State of Punjab, (1976) 4 SCC 369, Balraje vs. State of Maharashtra, (2010) 6 SCC 673, Prahlad Patel v. State of Madhya Pradesh, (2011) 4 SCC 262, Israr v. State of Uttar Pradesh, (2005) 9 SCC 616, S. Sudershan Reddy v. State of Andhra Pradesh, (2006) 10 SCC 163, State of Uttar Pradesh v. Naresh, (2011) 4 SCC 324, Jarnail Singh v. State of Punjab, (2009) FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 45 of 65 9 SCC 719 and Vishnu v. State of Rajasthan, (2009) 10 SCC 477 it was held:
"It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinise their evidence meticulously with a little care."
29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh and pithily reiterated in Sarwan Singh in the following words:
"The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
In view of the above said law, testimony of PW3 has to be judged. He is interested and related witness to the deceased and rather is definitely interested in the conviction of the accused persons. Though he had no previous enmity with the accused as per record, yet his testimony would show that he has tried to manipulate various facts just to get them convicted. It is settled law that the statement of witness u/s 161 Cr.P.C. is not an evidence but this statement may be used to confront the witness and also to seek explanation by drawing his attention to know the reason of FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 46 of 65 change of his version subsequently. In this case, the testimony of PW3 before court viz-a-viz his statement u/s 161 Cr.P.C. recorded by the police would show that he has made many material improvements in his testimony before this court in comparison of his earlier statement before police. Not only this, his statement before the court is full of contradictions and it is not the case of prosecution that he deliberately changed his statement to give the benefit to accused persons. Rather, he has made material improvements just to implicate both accused and it will not be safe to rely upon his testimony to convict both accused. As such, he is an interested and related witness and not wholly reliable. Such testimony which is not wholly reliable requires corroboration but there is no corroboration from any other witness as none of the other witness of the persecution witnessed this incident.
33. Admittedly, testimony of PW4 Bablu has not supported the case of the prosecution and rather has introduced an entirely new case in comparison to the initial case of the prosecution. He has deposed that the deceased Dharambir was snatching Rs. 50/- from him and during this process his forehead and head hit against the rod of the auto rickshaw and this impact caused him unconscious. It is further deposed that Jaivir asked him to leave deceased there since he was under the influence of liquor and would come back after hangover. It is further deposed that Dharambir was lying unconscious and Jaivir informed police after borrowing his mobile phone. He has categorically denied that he witnessed this incident or that both accused reached there by motorcycle bearing no. UP-76E-4191 or that FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 47 of 65 both of them fought with deceased or caused his death. He has categorically denied every fact stated in his statement u/s 161 Cr.P.C. Even he has also denied that the police arrested both accused at his instance or in his presence vide memos Ex.PW4/B to Ex.PW4/D. In fact, the testimony of PW4 is entirely against the version of the PW3 which was also not found trustworthy. Contrary to it, PW2 Ct. Suresh has corroborated the version of DD no. 15A that he visited the spot of incident and came to know that it was a case of incident. As such, even by the sole testimony of PW3, the culpability of the accused could not be proved. The prosecution has failed to prove the version of eye witness and most of the facts remained unproved.
34. Identity of the accused persons: Identity of an accused is paramount consideration in a criminal case and prosecution is bound to prove identity of the accused as assailant beyond doubt. However, in this case, not only the incident of the case but also the identity of both accused is doubtful. Identity of the accused was based upon the testimonies of the PW3 and PW4, but the testimony of PW4 would show that he has denied everything about the accused including their arrest as well as identity as assailants. On the other hand, testimony of PW3 has proved that initially he identified them as assailants and also stated to be witnessed the incident, however, during the cross examination he has deposed many contradictory facts pertaining to the identity of both accused. He has deposed that he came to know about the names of the accused persons only after their arrest. It has already been discussed that the testimony of PW3 was not found reliable as an eye witness, due to his testimony is not sufficient to prove all FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 48 of 65 the facts. Prosecution had relied upon the testimony of the PW4 to ascertain the identity of the accused persons but PW4 has not supported the prosecution and has denied all facts qua them, whereas PW3 came to know about the names and identity of both accused only on 15/05/2011 i.e. after the incident and his testimony has failed to prove the identity of the accused persons as assailants.
35. Though the accused persons had refused to participate in their TIP proceedings on the ground that they had been shown to the witnesses, yet such refusal was of no use, as both the witnesses allegedly identified them at the spot itself. The law pertaining to the mode and manner of identification through TIP as well as court identification has been dealt with in case titled Rajesh v. State of Haryana, (2021) 1 SCC 118 as under:
43. The prosecution has submitted that an adverse inference should be drawn against the appellants for refusing to submit themselves to a TIP. Before we deal with the circumstances in which the appellants declined a TIP, it becomes essential to scrutinise the precedent from this Court bearing on the subject. A line of precedent of this Court has dwelt on the purpose of conducting a TIP, the source of the authority of the investigator to do so, the manner in which these proceedings should be conducted, the weight to be ascribed to identification in the course of a TIP and the circumstances in which an adverse inference can be drawn against the accused who refuses to undergo the process. The principles which have emerged from the precedents of this Court can be summarised as follows:
43.1. The purpose of conducting a TIP is that persons who claim to have seen the offender at the time of the occurrence identify them from amongst the other individuals without tutoring or aid from any source. An identification parade, in other words, tests the memory of the witnesses, in order for the prosecution to FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 49 of 65 determine whether any or all of them can be cited as eyewitness to the crime.
43.2. There is no specific provision either in CrPC or the Evidence Act, 1872 ("the Evidence Act") which lends statutory authority to an identification parade. Identification parades belong to the stage of the investigation of crime and there is no provision which compels the investigating agency to hold or confers a right on the accused to claim a TIP.
43.3. Identification parades are governed in that context by the provision of Section 162 CrPC.
43.4. A TIP should ordinarily be conducted soon after the arrest of the accused, so as to preclude a possibility of the accused being shown to the witnesses before it is held.
43.5. The identification of the accused in court constitutes substantive evidence.
43.6. Facts which establish the identity of the accused person are treated to be relevant under Section 9 of the Evidence Act.
43.7. A TIP may lend corroboration to the identification of the witness in court, if so required.
43.8. As a rule of prudence, the court would, generally speaking, look for corroboration of the witness' identification of the accused in court, in the form of earlier identification proceedings. The rule of prudence is subject to the exception when the court considers it safe to rely upon the evidence of a particular witness without such, or other corroboration.
43.9. Since a TIP does not constitute substantive evidence, the failure to hold it does not ipso facto make the evidence of identification inadmissible.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 50 of 65 43.10. The weight that is attached to such identification is a matter to be determined by the court in the circumstances of that particular case.
43.11. Identification of the accused in a TIP or in court is not essential in every case where guilt is established on the basis of circumstances which lend assurance to the nature and the quality of the evidence.
43.12. The court of fact may, in the context and circumstances of each case, determine whether an adverse inference should be drawn against the accused for refusing to participate in a TIP.
However, the court would look for corroborating material of a substantial nature before it enters a finding in regard to the guilt of the accused.
In view of the above said law, it stands proved that the refusal of TIP by the accused is not a ground in itself to presume that accused who has refused to undergo TIP proceedings has committed the offence. Refusal of TIP may be a ground to draw an adverse inference against the accused provided there must be other corroborative evidence against the accused and identity of the accused cannot be established on sole basis of refusal of TIP being not strong evidence u/s 162 Cr.PC r/w section 9 of Evidence Act. In the present case, PW3 and PW4 have failed to prove the identity of the accused as assailants and prosecution has failed to established their identity.
36. Arrest and recovery: Arrest of both accused was based on the testimony of PW4 who witnessed their arrest and recovery of motorcycle from them. However, the testimony of PW4 would show that he has categorically denied that he witnessed the arrest of both accused. Rather he has denied that he signed the papers of arrest of the accused and police FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 51 of 65 officials obtained his signatures on the blank papers due to he could not prove their arrest as well as connection with crime. PW1 HC Om Prakash has categorically deposed that eye witness Bablu identified the accused persons and they were arrested at his instance as well as identification. Admittedly, no recovery of any weapon made out of the possession of the accused except motorcycle of which involvement could not be proved during the incident in any manner and rather the number of this motorcycle deposed by the PW3 and seized by the IO vide seizure memo are different. Both accused have also made their disclosure statements but those are without any recovery due to these disclosure statements are not admissible u/s 25 of Evidence Act as no information admissible u/s 27 of Evidence Act extracted out of such statements. On the other hand, the owner of the motorcycle has not been examined by the IO to ascertain that the motorcycle was in possession of the accused Ajay at the time of incident.
37. Not only this, IO did not prepare any site plan of the place of spot of arrest of the accused which was otherwise not relevant but became relevant after denial of the arrest of the accused by PW4. Even public persons were also not joined in the arrest proceedings of the accused despite availability.
38. Further, the police seized the blood earth control and brick smearing blood of the deceased from the spot. However, the testimonies of PWs have failed to prove that accused caused injuries by such brick and used it as weapon. The testimony of PW3 has already been observed to be not reliable whereas the testimony of PW4 has already been discarded by the FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 52 of 65 prosecution being against the basic case of the prosecution. The recovery of the clothes of the injured was also doubtful due to manipulation in seizure memo and such recoveries could not be connected to the accused.
39. Admittedly, only those contradictions in the testimonies of the witnesses are required to be considered with are affecting the core issue are otherwise relevant. The Hon'ble Supreme Court of India has dealt with the issue of contradictions and discrepancies emerged in the testimonies of the witnesses and has held in Bhajan Singh & Ors v. State of Haryana, (2014) 7 S.C.R.1 that while appreciating the evidence of a witness minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evident in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions". Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go the heart of the matter and shake the basic version of prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in statements of witnesses." In view of FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 53 of 65 this case, it stands proved that the omissions or contradictions effecting the core issue in dispute are liable to be considered and the testimonies of PW3 and PW4 have failed to prove, despite appreciating with care and caution and after removal of exaggeration and improvements, the involvement of the accused to the offence charged against them. In fact, it is not safe to rely upon the testimony of either PW3 or PW4 to convict the accused persons.
40. Motive : There was no motive of this offence on the part of accused since beginning, but during the investigation, one statement of the PW3 was recorded u/s 161 Cr.P.C. that this offence was committed with the motive of robbery of Rs. 12,000/- and PW18 also supported this version. However, the testimonies of PW3 and PW4 have failed to prove this fact. It is beyond explanation, if the accused persons committed the robbery of Rs. 12,000/- from the possession of deceased, then why prosecution has not collected any evidence to this effect. Police ought to collect the evidence pertaining to the availability of such amount with deceased at the time of incident and even PW3 was also required to provide such evidence to police that he handed over such amount to him, especially when PW4 has deposed that deceased snatched Rs.50/- from him to buy liquor and was not having much amount. Even otherwise no such robbed amount has been recovered from the accused or their instance. Besides it, none of the other witness has deposed any fact regarding such motive of the accused persons to commit this offence. As such, motive to commit this murder could not be proved.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 54 of 65
41. Expert Evidence: Though the collection of the witness by the police during investigation has remained doubtful and also full of contradictions, yet prosecution has collected some expert evidence which has to be considered. IO prepared a site plan during the investigation but site plan has already been disputed by the PW3 thereby deposing that he did not visit the spot of incident with police and no site plan was prepared. Even it is assumed that such site plan was prepared at the instance of PW3, then also it has not specifically shown the location of the eyewitnesses, victim and both accused at the time of incident. The scaled site plan prepared by the official draftsman has proved some facts but at whose instance it was prepared is not clear. Even the recovery of blood-stained earth control and brick is also not of use as the place of incident was accessible to the public for more than one day and manipulation of such evidence may not be ruled out. Even the seizure of clothes of the deceased by IO was also not beyond doubt and rather IO manipulated the seizure memo by showing it in back date i.e. on 14/05/2011, whereas it was prepared on 15/05/2011 as proved. FSL report has not pointed out any new fact except that the blood stains of deceased were found on the clothes. As such, there is no such expert evidence to support the prosecution against the accused.
42. Conclusion: Keeping in view of the facts and circumstances of this case, I am of the considered opinion that the prosecution has failed to prove this case against both accused beyond doubt and both the accused are entitled for benefit of doubt. Both the accused are hereby acquitted of charges u/s 302/34 IPC.
FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 55 of 65
43. Lapses of investigation: Before patting with the case, it is necessary to point out some glaring lapses of the investigation which have compelled this court to give benefit of doubt to both accused. Prosecution has failed to prove many facts on record and rather material evidence has been ignored or not collected by police during investigation. Some of the facts which are necessary to consider are as under:
(i). Firstly, this case was initially lodged u/s 308/34 IPC and investigation initiated by ASI. Even after the death of injured immediately on next day, entire investigation had been conducted by ASI Rambir only. Investigation was assigned to Insp. Inderpal Singh/PW19 just for the sake as he did not carry out any effective investigation and only collected Post Mortem Report through ASI Rambir and got prepared scaled site plan through Draftsman and later on HC Om Prakash collected and handed over to him and he filed with chargesheet. Criminal investigation by the police official of the rank of ASI is definitely unheard and can be easily presumed. It was the major lapse on the part of then SHO, Insp. Rakesh Singh who failed to supervise the investigation of a murder case effectively. Even the lapse was not only on the part of SHO concerned, but also the then ACP concerned who also did not notice this fact and forwarded this charge sheet as ritual.
(ii). The lapses of the investigation started since lodging of the DD entry 15A regarding an accident, which was lodged by mobile number 9718549243 belonged to one Anokhe Lal, but IO did not bother to interrogate said Anokhe Lal and to verify the authenticity of information lodged by his mobile phone and also to ascertain that he was not using that mobile number at the relevant time and mobile number belonged to Jaivir or FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 56 of 65 Bablu or was being used by them exclusively. It was lapse on the part of all IOs who conducted the investigation of this case.
(iii). The brother and father of deceased namely Jaivir and Ram Suresh were informed by some children about the incident and those children could have been eye witnesses to the incident, but again IOs did not bother to identify those children and to interrogate them to prove the incident. In fact, this lapse resulted into benefit to the accused persons and also proved withholding of the material evidence.
(iv). HC Om Prakash conducted the initial investigation on receiving DD entry 15A and also visited the spot of incident and went to GTB Hospital, but he did not bother to protect the spot of incident and left the spot without making any arrangement for protection of spot. Further, investigation was assigned to ASI Rambir, who also visited the spot but none of them bothered to protect the spot of incident and material evidence i.e. blood stained brick and blood stained earth control remained lying in open place accessible to public at large and it has given a possibility of manipulation of evidence which has proved fatal.
(v). The DD entry 15A was regarding the accident but HC Om Prakash or ASI Rambir did not investigate this fact from the angle of the accident and without ruling out the angel of accident the possibility of accident could not be ruled out. This case initially investigated u/s 308 IPC and later on u/s 304 or 302/34 IPC, but all the facts could not be investigated.
(vi). ASI Rambir seized the clothes of the deceased through seizure memo Ex.PW1/B on 14/04/2011, but it has proved on record that he manipulated the seizure memo in back date, otherwise clothes were seized on 15/05/2011 FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 57 of 65 and this manipulation proved fatal to this case
(vii). IO ASI Rambir examined two eye witnesses in this case, but he did not bother to get their statements recorded u/s 164 Cr.PC to rule out the possibility of their turning hostile and it has proved costly as PW4 has retracted of his statement.
(viii). PW3 removed the injured to the hospital and took about 1 ½ - 2 hours, whereas the way was of just 10-15 minutes, but IO did not bother to investigate as to why PW3 took so long in removing the injured to hospital, especially when he did not allow the PCR officials to remove the deceased to hospital promptly. It also proved fatal to this case.
(xi). IO did not examine PCR officials who reached the spot of incident and must be aware about the correct facts of this case and it was also lapse of investigation.
(x). ASI Rambir has seized motorcycle UP-76-C-4191, but he did not examine owner of the motorcycle to ascertain that motorcycle was in the possession of both accused at the time of incident and was lapse on the part of police.
(xi). IO has manipulated the documents of the case under multiple offences and IOs were definitely confused under which provisions they were conducting investigation. Some of the documents were prepared u/s 308/34 whereas some under section 308/304/34 or u/s 308/304/302/34 IPC which created doubt about such documents.
(xii). IO has not investigated this case with the angle of motive and no investigation has been carried out to this effect.
(xiii). IO has not tried to collect any evidence pertaining to the allegations FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 58 of 65 of robbery of Rs. 12,000/- by the accused persons from the deceased despite recording the statement of the witness u/s 161 Cr.P.C. which has helped the accused to give them benefit of doubt.
(xiv). IO has prepared a site plan which was very sketchy and has not reflected anything material like presence of accused, victim and eye witnesses in the site plan which was again a lapse.
(xv). IO did not try to interrogate and join public witnesses to investigation whereas the place of incident was public place and public persons were available nearby to the spot of incident.
44. In fact, the investigation carried out by the police in such a murder case was most callous, irresponsible and sub-standard and resulted into the acquittal of the accused persons despite waste of more than 7 years of this court. The observation of the Hon'ble Supreme Court is material in such cases where the case has resulted into failure of trial. The Hon'ble Supreme Court has observed in State of Gujarat vs Kishanbhai (2014) 5 SCC 108 as under:
22.Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore essential that every State should put in place a procedural mechanism which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 59 of 65 Department of every State to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A Standing Committee of senior officers of the police and prosecution departments should be vested with the aforesaid responsibility. The consideration at the hands of the above Committee, should be utilised for crystallising mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course-content drawn from the above consideration. The same should also constitute course-
content of refresher training programmes for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials should be vested in the same Committee of senior officers referred to above. Judgments like the one in hand (depicting more than ten glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course-content will be reviewed by the above Committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of courts, and on the basis of experiences gained by the Standing Committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence when they are made liable to suffer departmental action for their lapses.
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23. On the culmination of a criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the official concerned may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly, we direct the Home Department of every State Government to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.
24. A copy of the instant judgment shall be transmitted by the Registry of this Court, to the Home Secretaries of all State Governments and Union Territories, within one week. All the Home Secretaries concerned, shall ensure compliance with the directions recorded above. The records of consideration, in compliance with the above direction, shall be maintained.
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45. The Hon'ble Supreme Court has again emphasized in Ankush Maruti Shinde v. State of Maharashtra, (2019) 15 SCC 470 that the conduct of the investigating agency should be observed in every acquittal and the observation of the court is as under:
17. Murder and rape is indeed a reprehensive act and every perpetrator should be punished. Therefore, considering the observations made by this Court in Kishanbhai [State of Gujarat v. Kishanbhai, (2014) 5 SCC 108 : (2014) 2 SCC (Cri) 457] , referred to hereinabove, we direct the Chief Secretary, Home Department, State of Maharashtra to look into the matter and identify such erring officers/officials responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, real culprits are out of the clutches of law and because of whose lapses the case has resulted into acquittal in a case where five persons were killed brutally and one lady was subjected to even rape. Therefore, we direct the Chief Secretary, Home Department, State of Maharashtra to enquire into the matter and take departmental action against those erring officers/officials, if those officers/officials are still in service.
The instant direction shall be given effect to within a period three months from today.
18. With the above observations and directions, and in view of the above and for the reasons stated above, the criminal appeals preferred by the accused are hereby allowed, and all the accused are hereby acquitted for the offences for which they were tried. They shall be released forthwith, if not required in any other case. Consequently, the appeals filed by the State of Maharashtra for enhancement of sentence qua A-3, A-5 and A-6 stand dismissed.
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46. Issue may arise that IO/s, SHO and ACP concerned might have retired of their services and department may have plea that they may not be inquired or punishment under service rules. However, this situation has taken care of by the Hon'ble Supreme Court in case titled Dayal Singh v. State of Uttaranchal, (2012) 8 SCC 263 as under:
47.4. The Directors General of Police U.P./Uttarakhand are hereby directed to initiate, and expeditiously complete, disciplinary proceedings against PW 6 SI Kartar Singh, whether he is in service or has since retired, for the acts of omission and commission, deliberate dereliction of duty in not mentioning reasons for non-disclosure of cause of death as explained by the doctor, not sending the viscera to the FSL and for conducting the investigation of this case in a most callous and irresponsible manner. The question of limitation, if any, under the Rules, would not apply as it is by the direction of the Court that such enquiry shall be conducted.
47.5. We hold, declare and direct that it shall be appropriate exercise of jurisdiction as well as ensuring just and fair investigation and trial that courts return a specific finding in such cases, upon recording of reasons as to deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of professional standards and investigative requirements of law, during the course of the investigation by the investigating agency, expert witnesses and even the witnesses cited by the prosecution. Further, the courts would be fully justified in directing the disciplinary authorities to take appropriate disciplinary or other action in accordance with law, whether such officer, expert or employee witness, is in service or has since retired.
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47. In view of the above said case laws, it stands proved that in every case of acquittal, State is bound to initiate the departmental action against the responsible officials/officers and cannot shy away of its duties on any pretext including the plea of retirement of the officials/officers. In this case, HC Om Prakash, who was entrusted DD No.15A failed to perform his part of initial investigation, ASI Rambir who conducted most of the investigation failed to conduct the proper and fair investigation, the then SHO Rakesh Kumar failed to supervise the investigation and rather failed to realize that investigation was of murder case and got conducted the investigation of such heinous offence through ASI Rambir and assigned the investigation to Insp. Inder Pal Singh / PW19 just for the sake when entire investigation was concluded. Last IO Insp. Inder Pal Singh was supposed to check and complete the shortfalls of the investigation conducted by his erstwhile IOs, but he preferred to file charge sheet just as ritual without coming out the short falls of his subordinate IOs. The then ACP concerned Ram Singh also failed to discharge his statutory duty to supervise the investigation properly and forwarded the investigation in mechanical manner and without supervising effectively and failed to discharge his duties in terms of section 158 r/w 173(2) of Cr.P.C as well as Punjab Police Rules. He forwarded the charge sheet as ritual and failed to notice material lapses of investigation which led to this court to acquitted the accused persons.
48. The copy of this judgment be sent to the Commissioner of Police, Delhi who shall initiate an inquiry against the above said officials / officers FIR No. 198/11 5 State Vs. Ajay Kumar & Anr. 64 of 65 in time bound manner and shall intimate the action taken against the above said officials / officers to this court positively and not more than the period of 3 months from the date of receipt of the copy of this judgment. In failure to comply with direction, a written explanation shall be furnished without delay.
49. Both the accused are hereby directed to furnish their B/B of Rs. 25,000/- with one surety of like amount (each) u/s 437A Cr.P.C. for a period of 6 months to ensure their appearance before the appellant court in case of filing of any appeal against this judgment.
Announced in open court (Devender Kumar)
Today on 18.09.2021. Addl. Sessions Judge-02
North East District
Karkardooma Court/Delhi
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