Delhi District Court
State vs . (1) Sunil @ Raghu on 1 November, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 24/2013
Unique Case ID No. 02404R0042512013
State Vs. (1) Sunil @ Raghu
S/o Sh. Nanu Ram
R/o C1790, Jahangir Puri,
Delhi
(Convicted)
(2) Fahim @ Sonu @ Murgi
S/o Sharif
R/o I1152, Jahangir Puri,
Delhi
(Convicted)
FIR No.: 313/2012
Police Station: Mahendra Park
Under Sections: 302/363/377/511/34 IPC
Date of committal to session court: 27.2.2013
Date on which orders were reserved: 16.10.2014
Date on which Judgment pronounced: 16.10.2014
JUDGMENT:
(1) As per the allegations on 7.11.2012 at about 10:00 PM at Shop of Gaurav, I Block Jahangir Puri, Delhi both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi in furtherance of their common intention kidnapped St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 1 Salman S/o Mohd. Saleem aged about 14 years from the lawful guardianship of his parents and then attempted to commit carnal intercourse against the order of nature with Salman. It has also been alleged that both the accused in furtherance of their common intention committed murder of Salman by strangulation and by causing brick blow on his chest and face. BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 08.11.2012 at about 10:30 AM an information was received at Police Station Mahendra Park that dead body of a boy was lying in the vacant plot no. A46, Ramgarh, Jahangir Puri, Delhi. Pursuant to the said information DD No.14A was lodged in the Police Station and SI Anoop along with Ct. Sukhbir reached the spot i.e. vacant plot A46, Ram Garh, Jahangir Puri, Delhi where there was a boundary wall of a height of 56 feet from four sides and dead body of a male boy aged about 1415 years was lying inside the plot in the bushes with his face towards the ground. There were no clothes on the body except the underwear and the pant which were near the knee and one grey coloured full sleeves under shirt, one checked shirt of black colour and one pair of slippers were found near the dead body. The Crime Team was called at the spot and in the meanwhile meanwhile SHO Inspector Darshan Singh also reached the spot. The scene of crime was inspected by the Crime Team and the photographer took photographs. The dead body was thereafter turned and blood was found on his face and there were blue injury marks on his neck and chest portion.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 2
Meanwhile one person namely Naim came there who identified the dead body as that of Salman S/o Salim. Thereafter the dead body was shifted to BJRM Hospital Mortuary through Ct. Sukhbir and SI Anoop prepared the rukka on the basis of which the present FIR was registered through Ct. HC Ravinder Nath. The father of the deceased child Salman namely Salim reached the Hospital alongwith Naim on which SI Anoop Singh recorded the statement of Naim. Thereafter the postmortem was conducted on the dead body of the deceased child. During investigations the Investigating Officer came to know that the deceased child was last seen alive in the company of his friends Sunil @ Raghu and Fahim @ Raju @ Murgi.
(3) On 09.11.2012 at about 8.30AM at the instance of Salim (father of deceased) and Gullu (brother of the deceased), the accused Sonu @ Fahim @ Murgi was apprehended from his house. Initially the accused Sunil was observed to be below 18 years on which the Investigating Officer called the Juvenile Welfare Officer SI Kaptan Singh and in his presence, accused Sonu was interrogated by the Investigating Officer during which the accused disclosed his involvement in killing of the deceased Salman. Thereafter the accused Sonu @ Fahim was arrested and his disclosure statement was recorded. At the instance of accused Fahim, his shirt of cream colour of white and brown linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were taken into possession. Thereafter the accused Sonu @ Fahim pointed out the place of incident and got recovered one half piece of brick from the bushes near the place of incident and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 3 disclosed that he had caused injuries to the deceased Salman by said brick piece after which the said brick was taken into possession. The accused Fahim @ Sonu was then produced before the Juvenile Justice Board and was sent to the Observation Home.
(4) On 11.11.2012 pursuant to a secret information the accused Sunil @ Raghu was apprehended from near Kushal Cinema, Jahangir Puri. One mobile phone of make Wing with SIM was recovered from his possession which mobile was taken into possession after which the accused Sunil was arrested in this case and his disclosure statement was recorded. The wearing clothes of the accused Sunil i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were then taken into possession by the Investigating Officer. Later the accused Fahim @ Raju was declared as Major by the Juvenile Justice Board. After the completion of the investigations a charge sheet was filed in the Court against both the accused Sunil @ Raghu and Fahim @ Raju @ Murgi.
CHARGES:
(5) Charges under Sections 363/34, 377 r/w 511/34 IPC and 302/34 Indian Penal Code have been settled against the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi to which they pleaded not guilty and claimed trial.
(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 4
List of Witnesses:
Sr. PW No. Name of the witness Details of the witness No.
1. PW1 SI Naresh Pal Police Witness - Crime Team Incharge
2. PW2 Ct. Parvinder Police Witness - Crime Team Photographer
3. PW3 W/HC Sunaina Police Witness - Duty Officer
4. PW4 SI Manohar Lal Police Witness - Draftsman
5. PW5 HC Chander Bhan Police Witness - MHCM
6. PW6 Ct. Mahipal Police Witness who had taken the exhibits to FSL
7. PW7 HC Parmod Police Witness - PCR Officials
8. PW8 Sh. Pawan Singh Nodal Officer from Idea Cellular Ltd.
9. PW9 Ajay Public Witness who made the PCR Call
10. PW10 Dr. Bhim Singh Autopsy Surgeon
11. PW11 Nasim Public Witness - Neighbour of the deceased
12. PW12 Shakel Ahmed Public Witness - Uncle of the deceased
13. PW13 Inderesh Kr. Mishra FSL Expert (Biological/ Serological)
14. PW14 Ram Gopal Sisodia Public Witness - Owner of the vacant plot where the dead body was discovered
15. PW15 Mohd. Salim Public Witness - Father of the deceased
16. PW16 Mohd. Sharik Public Witness - Brother of the deceased
17. PW17 Gaurav Sharma Public Witness - Owner of Video Game Shop
18. PW18 Ct. Sukhbir Singh Police Witness who had reached the spot along with SI Anoop Singh
19. PW19 SI Anoop Singh Police Witness who had reached the spot/ Initial Investigating Officer
20. PW20 HC Sudesh Police Witness who had joined investigations with SI Anoop and Inspector Darshan Singh
21. PW21 Inspector Lakshmi Subsequent Investigating Officer Dubey St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 5 Sr. PW No. Name of the witness Details of the witness No.
22. PW22 Inspector Darshan Investigating Officer of the case Singh
23. PW23 HC Mukesh Kumar Police Witness MHCM
24. PW24 Sh. A.K. Srivastava FSL Expert (DNA Fingerprinting) List of documents exhibited:
Sr. Exhibit Details of documents Proved by
No. No.
1. PW1/1 Affidavit of evidence of SI Naresh Pal SI Naresh Pal
2. PW1/A Crime Team Report
3. PW2/1 Affidavit of evidence of Ct. Parvinder Ct. Parvinder
4. PW2/A1 to Photographs of scene of crime
PW2/A17
5. PW2/B Negatives of the photographs
6. PW3/1 Affidavit of evidence of W/HC Sunaina W/HC Sunaina
7. PW3/A Copy of FIR
8. PW3/B Endorsement on rukka
9. PW4/1 Affidavit of evidence of SI Manohar Lal SI Manohar Lal
10. PW4/A Scaled site plan
11. PW5/1 Affidavit of evidence of HC Chander Bhan HC Chander Bhan
12. PW5/A Copy of Reg No. 19 Sr. No. 877
13. PW5/B Copy of Reg No. 19 Sr. No. 878
14. PW5/C Copy of Reg No. 19 Sr. No. 879
15. PW5/D RC 3/21/13
16. PW5/E FSL Receipt
17. PW5/G FSL Receipt
18. PW6/1 Affidavit of evidence of Ct. Mahipal Singh Ct. Mahhipal Singh
19. PW6/A RC 34/21/14
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 6
Sr. Exhibit Details of documents Proved by
No. No.
20. PW7/1 Affidavit of evidence of HC Pramod HC Pramod
21. PW7/A PCR Form
22. PW8/A Customer Application Form in respect of Pawan Singh
mobile No. 8750023400
23. PW8/B Copy of ID proof
24. PW8/C Call Detail Record
25. PW8/D Certificate U/s 65 Evidence Act
26. PW10/A Postmortem Report Dr. Bhim Singh
27. PW10/B Subsequent opinion
28. PW11/A Dead body identification statement Naim
29. PW12/A Dead body identification statement Shakeel Ahmed
30. PW12/B Dead body handed over memo
31. PW13/A Biological Report Indresh Kumar Mishra
32. PW13/B Serological Report
33. PW14/A Possession letter in respect of the plot Ram Gopal Sisodia
34. PW15/A Dead body identification statement Mohd. Salim
35. PW18/A Seizure memo of two packet and sample Ct. Sukhbir
seal
36. PW19/A DD No. 14A SI Anoop Singh
37. PW19/B Rukka
38. PW19/C Statement of Sheikh Afsar Ali SI Anoop Singh
39. PW19/D Inquest form
40. PW19/E Brief facts
41. PW19/F Request for postmortem
42. PW19/G Site plan
43. PW19/H Apprehension memo of accused Fahim @
Sonu
44. PW19/I Personal search memo of accused Fahim @
Sonu
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 7
Sr. Exhibit Details of documents Proved by
No. No.
45. PW19/J Disclosure statement of accused Fahim @
Sonu
46. PW19/K Seizure memo of clothes of accused Fahim
47. PW19/L Pointed out memo by accused Fahim
48. PW19/M Seizure memo of Brick
49. PW19/N Seizure memo of mobile phone
50. PW19/O Arrest memo of accused Sunil @ Raghu
51. PW19/P Personal search memo of accused Sunil
52. PW19/Q Seizure memo of clothes of Sunil
53. PW19/R Disclosure statement of accused Sunil
54. PW19/S Pointing out memo by accused Sunil
55. PW20/A Seizure memo of blood sample of accused HC Sudesh Kumar
Fahim @ Sonu and sample seal
56. PW20/B Seizure memo of blood sample of accused
Sunil @ Raghu and sample seal
57. PW23/A RC 36/21/14 HC Mukesh Kumar
58. PW23/B FSL Receipt
59. PW24/A DNA Fingerprinting Report Sh. A K Srivastava
EVIDENCE:
(7) In order to prove its case the prosecution has examined as many as
Twenty Four witnesses as under:
Public Witnesses:
(8) PW9 Sh. Ajay has deposed that he used to work as a Waiter in the
marriages. According to the witness on 08.11.2012 at about 10 AM he was St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 8 going to Ramgarh behind the Big Apple for some work and one Bengali boy aged about 2530 years informed him that one person habitual of smack was lying dead in the plot within four boundary walls as his face was towards the ground. Witness has further deposed that he went to the plot and saw that one boy aged about 1314 years was lying dead in the plot and his pant was near his knee and no other clothes on his body "Jamin par ulta nanga mara para tha, aur pant neche paro mein khisakh raheke thei" and his clothes were lying near his body. According to the witness there were bushes of the beri near the dead body. Thereafter he made a call to the police at 100 number from his mobile phone No. 9871557012. He has further deposed that the the SIM of the said mobile number was being used by him. He has testified that police reached the spot and thereafter he went away from the spot.
(9) In his cross examination by Ld. Defence counsel, witness has deposed that the dead body was not visible to the passerbyes as it was lying in the plot surrounded by the four boundary walls. According to the witness 4050 public persons were present near the dead body when he reached there and he was with his fivesix friends including Sunny, Deepak and others at that time. Witness has further deposed that he remained at the spot for about 1520 minutes and police recorded his statement after some days of his call but he does not remember the date when his statement was recorded. Witness has denied the suggestion that he did not make call at 100 number by the mobile number 9871557012 as he was not using the same at that time. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 9 (10) PW11 Sh. Naim is the neighbour of the deceased who has deposed that he is working as a Kabari. According to the witness he knew Reshma W/o Saleem being the original resident of his original district Aligarh. Witness has further deposed that on 08.11.2012 at about 9:00AM Saleem informed him that his son Salman was missing since 07.11.2012 on which he also searched for Salman and at about 12 noon he went to a vacant plot at Ramgarh where he found the dead body of a boy and identified him as Salman. He has testified that the dead body was found in the bushes and there were no clothes on the body except his pant was found near his knee. Witness has further deposed that police was also present there and he also informed Saleem about the recovery of dead body of Salman in the plot after which they reached at the spot but the dead body was already removed by the police officials to the Mortuary of BJRM Hospital. He has also deposed that thereafter he along with Saleem reached there and identified the dead body and police recorded his statement about the identification of the dead body vide his statement Ex.PW11/A. The witness has identified the dead body of Salman from the photographs Ex.PW2/A1 to Ex.PW2/A17. (11) In his cross examination by Ld. Defence counsel, witness has deposed that he is living in different street/ gali then of Mohd. Salim father of deceased but he used to visit the house of deceased frequently as Reshma wife of Salim is his sister as belonging to the same District. According to the witness his statement was not recorded by the police at the spot where the dead body was found. Witness has denied the suggestion that he did not go to St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 10 the spot and that is why his statement was not recorded at the spot or that being a Khabri he had made a false witness by the police. Witness has also denied the suggestion that he did not belong to Aligarh or he does not have any relations with Smt. Reshma W/o Salim or that he did not visit the house of Mohd. Salim. He has also denied the suggestion that he has no contact with Mohd. Salim and his family or that he did not see the body of deceased at 12 noon on 08.11.2012. Witness has further denied the suggestion that Salim did not inform him about missing of his son on 08.11.2012 or that he had not informed Salim about recovery of dead body of deceased in the plot. He has also denied the suggestion that he was called by the police at hospital for the first time in the present case to make a witness of identifying the body and giving the false statement or that he has given the statement of 161 Cr. P.C and in the court at the instance of the Investigating Officer. Witness has further denied the suggestion that he was not having any personal knowledge of the present case.
(12) PW12 Shakeel Ahmed is the uncle of the deceased who has deposed that Salman was his nephew and he identified his dead body at BJRM Hospital mortuary on 08.11.2012 vide his statement Ex.PW12/A and after postmortem dead body was handed over to them vide Ex.PW12/B. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(13) PW14 Sh. Ram Gopal Sisodia has deposed that the plot No. A46, Ramgarh, Jahangirpuri, Delhi belongs to him and he has been in St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 11 possession of the same since 18.01.1969 and same was alloted to him by Wazirabad Multipurpose Cooperative Society Ltd. He has placed on record the copy of the his possession letter which is Ex.PW14/A. Witness has further deposed that the said plot is a vacant plot and was surrounded by boundary wall which was two to three feet in height and he has been residing at the village Sisodia Mohalla. This witness was not cross examined by Ld. Defence Counsel, despite opportunity granted in this regard. (14) PW15 Mohd. Salim is the father of the deceased who has deposed that he is residing at I1458, Jahangirpuri, Delhi 33 for the last 1314 years. According to the witness he has two daughters and five sons including deceased Salman who was aged about 14 years and had studied upto class 4th. Witness has further deposed that on 07.11.2012 at about 9:309:45 PM his son Salman had gone to the nearby shop at I1731, Jahangirpuri belonging to Gaurav for playing Video Games and he told him that he would return within 30 minutes after playing video games. According to the witness his other son Gullu aged about 12 years had already gone to the shop of Gaurav for playing video games before Salman went there and at about 10:30 PM Gullu returned home. Witness has further deposed that he asked him (Gullu) about Salman on which Gullu informed him that Salman was with his friends Sonu and Sunil and they were playing video games and also informed that Sunil and Sonu told him to go to the house and Salman would come later on. According to the witness, he waited for his son Salman for about 2030 minutes but when he did not return to home, he (witness) went to the Video St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 12 Game shop of Gaurav in search of his son Salman but at about 10:4511 PM he found the shop of Video Games closed. Witness has further deposed that he searched for his son in the locality but he could not be traced after which he reached at Ramgarh. According to the witness Sonu and Sunil met him near a plot which was surrounded by boundary wall, as they were crossing the boundary wall of the plot on which he asked them about the whereabouts of Salman after which both of them (Sonu and Sunil) told him that Salman had already gone towards their house. He has testified that thereafter he returned back to their house but Salman was not present in the house and also did not return home. Witness has further deposed that he also informed his neighbors that his son Salman was missing while he himself searched for his son Salman for the entire night but could not trace him and hence at about 4 AM he returned home. According to the witness in the morning time he again searched for his son Salman in the area but he could not be traced and at about 99:15 AM his neighbour Naim met him on which he (witness) also informed him (Naim) about Salman being missing and hence they both went in search of his son Salman. Witness has further deposed that at about 1:00 PM Naim came to his house and informed him that the dead body of Salman was found in the vacant plot surrounded by boundary wall in the Ramgarh on which he along with Naim immediately reached there where police officials were already present. According to the witness police officials had already shifted dead body of his son Salman to the BJRM Hospital Mortuary after which he along with Naim reached the hospital and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 13 identified the dead body of his son Salman in the hospital. Witness has further deposed that police recorded his statement in detail about the facts and about the identification of dead body vide Ex.PW15/A and after postmortem dead body was handed over to them vide Ex.PW12/B. Witness has further deposed that Sonu and Sunil met him near the same plot where the dead body of his son Salman was found and police also made inquiries from his son Gullu and recorded his statement. He has testified that police also arrested Sonu @ Murgi @ Fahim. According to him, on 11.11.2012 he went to Police Station Mahendra Park where he saw Sunil and he identified him as the person who met him near the plot surrounded by the boundary wall at Ramgarh on 07.11.2012 at about 1111:15 PM and told him along with Sonu that his son Salman had gone to the house. He has correctly identified the accused Sonu and Sunil in the Court.
(15) In his cross examination by Ld. Defence Counsel, the witness has deposed that he is doing labour work and earns a limited/ decent amount which is sufficient for him and his family. According to the witness they have a joint family and children used to take money from him, his brother, his mother etc. Witness has further deposed that Salman used to go with his uncle at his shop of Kabari in Alipur at about 8 AM and returned back at about 88:30 PM and during those days his brother was not feeling well. Witness has denied the suggestion that they used to returned back at about 1010:30 PM or that the deceased never went to play Video Games on the day of incident being on job with his uncle. Witness has also denied the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 14 suggestion that he did not see Sonu and Sunil at about 10:4511PM at near a plot at Ramgarh. According to the witness, he was not known to Sunil prior to the incident but his children were knowing him. Witness has also deposed that police had recorded his statement three times i.e. on 08.11.2012, 09.11.2012 and on 11.11.2012 and first statement was recorded in hospital whereas rest of the two were recorded in the hospital. According to the witness police also inquired in their neighborhood regarding the present case and also noted down names of all the children in their neighborhood and their addresses but police did not record the statement of other persons and children residing in their neighborhood in his presence. Witness has further deposed that police visited their house only once after about fiveten days but he is not sure about the date. He has testified that only one or two police personals visited their house whereas he visited the Police Station fourfive times, whenever he was called by the police. Witness has denied the suggestion that he had identified both the accused persons at the instance of the Investigating Officer and has voluntarily explained that Sonu is residing in the nearby locality. Witness has further denied the suggestion that he had taken the name of Sonu due to prior enmity with his family or that his son Gullu did not tell him anything about Salman playing Video Games or that Salman had not played Video Games on that day. Witness has also denied the suggestion that Gullu never used to go to play video games and he did not know Sunil and Sonu. Witness has further denied the suggestion that Gullu had named them at his instance and in connivance with the police.
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 15 (16) PW16 Mohd. Sharik @ Gullu is a child witness aged about 1213 years and younger brother of the deceased. Before recording his statement, this Court has observed that by physical appearance the child appeared to be around 1213 years of age. This Court questioned him and interacted with him during which interaction the witness informed that he is 13 years of age and studying in class 9th. He was observed to be understanding the sanctity of oath and also the nature of questions/ queries being put to him and hence his statement was recorded by this Court on Oath in vernacular.
(17) According to the witness, he is studying in 9th class in Government School, KBlock, Jahangir Puri. He has further deposed that he is residing in Jahangir Puri along with his parents, grandparents, uncleaunt, brothers and sisters. The witness has also deposed that he has two sisters and five brothers including the deceased Salman who was the eldest. (Mai Government School K Block Jahangirpuri mei class 9th mein parhta hoon. Main jahangirpuri mein apne mammi papa, dadadadi, chachachachi aur apne behan bhaiyon ke saath rehta hoon, Hum log do behan aur paanch bhai thay. Mohd. Salman mere sabse bare bhai thay jo gujar gaye hain). (18) The witness has further testified that on 7.11.2012 at about 10:00 PM after taking his meals he went to play Video Games at I1731, Jahangir Puri and after some time his brother Salman, accused Sunil and Fahim @ Sonu (whom the witness has correctly identified in the Court) also came to St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 16 the shop and started playing Video Games. (07.11.2012 ko raat ke 10.00baje main khana khakar video game kehlne I1731 Jahangir puri gaya tha. Thori der baad mera bhai Salman, Sunil jo ki court mein baitha hai (witness has correctly pointed out to accused Sunil) aur Sonu jo be court main hai (witness has correctly pointed out to accused Fahim @ Sonu ) bhi aa gaye aur video games khelne lag gaye.). According to him, after sometime they all left the shop and his brother Salman asked him to leave whereas he (Salman) would come soon and Sunil also told him that he (Salman) was with him and he would leave him at the house. ( Thore der baad hum log sab vahan se nikle aur ghar jaane lage. Mere bhai salman ne bola ki too jaa, main abhi a raha hoon. Sunil ne mujhe bola "ye mere saath hai, mai ise bhej doonga".) The witness has further deposed that on this he returned back to his house and he had last seen his brother Salman alive in the company of accused Sonu and Sunil (Is par mein ghar chala gaya. Maine akhiri baar apne bhai Salman ko Sonu aur Sunil ke saath dekha Tha).
(19) A specific Court Question was put to the witness as to what was the time when they all left the shop of Video Games on which the witness replied that it was about 10:30 PM (Yehi koi 10.30 baje ka time tha.) (20) In his crossexamination by the Ld. Defence Counsel the witness has deposed that for playing one Video Game one has to pay Rupee One coin (Ek video game ke liye Ek rupaye ka coin lena parta hai). According to the witness, while they were playing the Video Games there were twothree St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 17 persons who were also present but he is not aware their names (Jab hum video games khelne I1731 mei gaye they, to vahan 23 log aur bhi maujood thay par main unke naam nahin Janta). He has further deposed that when he left his house for paying the Video Games, he had informed his parents about the same and his brother Salman came there after about 1015 minutes of his reaching there (Jab mein video game khelne nikla tha to mammi papa ko bata diya tha ki mein video game khelne ja raha hoon. Salman mere vahan pahuchne ke 1015 minute baad aa gaya tha). He has further testified that none was accompanying the accused Sunil and Sonu at that time (Sunil aur Sonu ke alava unke saath aur koyee nahin tha). He has admitted that Salman usually went to play Video Games along with Sonu and Sunil and has voluntarily explained that he used to return back home (Ye baat theek hai ki Salman aksar raat ko Sonu aur Sunil ke saath Video game khelne jata tha , voluntarily added that Vo kehl kar vapis a jata tha.) He has further deposed that when Salman did not return back, he had informed his parents that Salman had gone along with Sonu and Sunil (Jab us din Salman vapin nahin aya, to mene mammi papa ko bata diya tha ki vo Sunil aur Sonu ke saath gaya tha.) He has denied the suggestion that he has falsely implicated the accused Sonu and Sunil on the tutoring of his parents and police officers (Yeh kehna galat hai ki main aaj police walon ke kehne par aur apne parivar walon ke kehne par Sunil aur Sonu ko galat phasa raha hoon.) The witness has also denied the suggestion that on that day he did not go to the shop of Video Game or that Salman did not come to the shop of Video Games nor he had St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 18 seen Salman with Sunil and Sonu (Yeh kehna galat hain ki main us din video game khelne nahin gaya tha. Yeh kehna galat hain ki Salman video games khelne nahin aya aur naa hi maine us din Salman ko Sunil aur Sonu ke saath dekha tha).
(21) PW17 Sh. Gaurav Sharma has deposed that he is residing at I524525, Jahangir Puri, Delhi and is running a shop of General Merchandise at I1731, Jahangirpuri. According to the witness in the year 2012 he had also kept five machines of video games in his shop out of which one was not working. Witness has further deposed that on 07.11.2012 at about 10.00 PM Salman and his brother Gullu, and the accused Sonu and Sunil (whom the witness has correctly identified in the Court) came to his shop and played video games for some time between 10.20 to 10.30PM after which Sunil, Salman, Sonu and Gullu left the shop. According to the witness the last he had seen Salman was with his brother Gullu, Sonu and Sunil while leaving his shop.
(22) Leading questions were put by Ld. Addl. PP for the State, the witness has admitted that police interrogated him and he had made his statement to them. Witness has denied the suggestion that he had told the police that Sunil had consumed alcohol and has voluntarily explained that he had told them that Sunil normally consumed alcohol at night and might have consumed the same (ho sakta hai, usne pee rakhi ho) St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 19 (23) In his cross examination by Ld. Defence counsel, witness has deposed that at the time of his deposition in the court he was not running this business of video games and has voluntarily explained that he has closed the same. According to the witness no record of any persons who used to come and play has been kept and has voluntarily explained that he is not required to maintain the same. Witness has further deposed that a coin of Rupee one was given for one game on which the machine could be operated by inserting the coin. He has also deposed that at that time he was virtually about to close his shop and there was nobody else in the shop. He is unable to tell the details of the other persons who had come to play with video games and has voluntarily explained that he can tell that large number of children came to play video games at night out of whom one was Mukesh, another was Sonu, etc. Witness has further deposed that only twothree children must have come before Gullu, Salman etc. Witness has denied the suggestion that Gullu, Salman, Sonu and Sunil did not come to his shop to play video games and that is why no record has been maintained and has voluntarily explained that he was otherwise not maintaining any record. According to the witness Gullu, Salman, Sonu and Sunil were know to him prior to the incident because they use to frequent his shop very often for playing video games and has voluntarily explained that Salman did not come very frequently. Witness has denied the suggestion that he had taken the name of Sonu and Sunil on the asking of the family of Salman and the police.
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 20 Witness of Medical Record:
(24) PW10 Dr. Bhim Singh has deposed that on 08.11.2012 at about 1.00 PM he conducted postmortem examination on the body of Salman S/o Mohd. Salim aged about 14 years, male, on the request of SI Anoop Yadav of Police Station Mahendra Park, Delhi with alleged history of found on 08.11.2012 at about 10.30AM. Witness has further deposed that on examination he found following external injuries on the body of deceased:
1. Multiple contusions with crecentric abrasions over front and both sides of neck varies from 0.8cm x 0.6 cm to 2.5cm x 1cm.
2. Irregular multiple contusions on the upper part of chest in an area of 16cm x 12cm.
(25) Witness has further deposed that internal examination of Head and Neck revealed that brain was pale, effusion of blood was present in skin subcutaneous tissues of neck present below Injury Number 1 with fracture of hyoide bone of left side and contusions over thyroid and trachea was present, trachea was full of blood. According to him, Chest showed effusion of blood in chest wall with fracture of sternum at the level of second rib with fracture ribs second and third on left side of chest, plural cavity was full of blood about one litre, left lung was punctured lacerated, wound below fracture ribs. He has testified that on examination of Abdomen all the organs were pale and stomach was full of semi digested food. The witness has proved having opined that the death was due to combined effect of coma, asphyxia and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 21 shock due to manual strangulation via hands and chest injury; all injuries were ante mortem, fresh and injury no.1 was caused by manual pressure via hands, Injury no. 2 by blunt force impact which injuries were sufficient to cause death in ordinary course of nature and time since death was 12 to 14 hours. He has proved the detailed Postmortem Examination Report which is Ex.PW10/A. According to the witness, after postmortem examination he handed over clothes of the deceased and blood sample in gauze piece in sealed condition with sample seal of department i.e. FMT BJRM HOSPITAL.
(26) The witness has further deposed that on 28.12.2012 he received an application from SHO Inspector Darshan Singh of Police Station Mahendra Park alongwith one sealed packet duly sealed with the seal of DS for subsequent opinion regarding weapon of offence. He has also deposed that on opening the seals he found one half piece of brick measuring 11cm x 7cm and after examination he opined that the injury no.2 mentioned in the Postmortem Report No. 1123/12 which is Ex.PW10/A could be possible by above examined brick, which subsequent opinion is Ex.PW10/B. According to the witness after examination the brick piece again sealed with the seal of department and handed over to the police.
(27) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that he prepared the postmortem report Ex.PW10/A and had given the opinion Ex.PW10/B on the asking of Investigating Officer St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 22 of the case, without application of mind.
Forensic Evidence:
(28) PW13 Sh. Indresh Kumar Mishra, Senior Scientific Officer (Biology) has deposed that on 03.01.2013 seven sealed parcels were received in his office and the same were assigned to him for biological and serological examination. According to the witness the seals on the parcels were intact and tallied with the sample seal. Witness has further deposed that on opening the parcel no.1 he found with one shirt having stains which was marked by him as Ex.1a, one inner having dirty stains which was marked Ex.1b, one pant with belt having dirty stains which was marked as Ex.1c, one underwear having dirty stains which was marked as Ex.1d and one pair of dirty chappals which were marked Ex.1e; on opening parcel no.2 he found brown gauze cloth piece described as blood sample in gauze piece of deceased Salman and the same was marked as Ex.2; on opening parcel no.3 he found one shirt which was marked Ex.3a, one T Shirt which was marked Ex.3b, one pant which was marked Ex.3c, one underwear which was marked Ex.3d and one pair of shoes which were marked as Ex.3e; on opening parcel no.4 he found one shirt Ex.4a; one pant having light brown stains which was marked as Ex.
4b; on opening parcel No.5 he found one gauze cloth piece having brown stains described as blood sample of Fahim@ Sonu @ Murgi which was marked Ex.5; on opening parcel no.6 he found half piece of brick described as St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 23 weapon of offence which was marked Ex.6 and on opening parcel no.7 he found light greenish brown gauze cloth pieces described as blood sample of accused Sunil @ Raghu which was marked Ex.7.
(29) According to the witness he examined the above said exhibits and after examination of the exhibits he detected blood on Ex.2 (blood gauze of the deceased), Ex.4b (one pant having light brown stains), Ex.5 (blood gauze of accused Fahim @ Raghu) and Ex.7 (blood gauze of accused Sunil @ Raghu) and also detected human semen on Ex.1d (underwear) vide his detailed biological report which is Ex.PW13/A (two pages). Witness has further deposed that he also examined the above said exhibits serologically and he detected Human Blood of Group 'AB' on Ex.2 and also detected Human Blood of 'B' Group on Ex.5 and he also detect Human Blood on Ex. 4b and Ex.7. Witness has proved his detailed serological report which is Ex.PW13/B and after examination of above said exhibits he resealed the remnants with the seal of IKM FSL DELHI.
(30) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that he has given the report without adopting the standard practices and procedure or that he has given his report on the asking of the Investigating Officer.
(31) PW24 Sh. A.K. Srivastava, Deputy Director, DNA Unit, FSL Rohini, Delhi has deposed that on 13.5.2014 four sealed parcels duly sealed with the seal of BD FSL DELHI were received in the office of Director for St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 24 DNA Analysis. According to the witness, he has examined all the parcels containing exhibits and submitted his conclusions as under:
1. Human semen was detected on exhibit 1d(underwear).
2. Blood was detected on exhibits 2 (dark brown gauze cloth pieces of deceased Salman), exhibit 3 (few dark brown stains i.e. blood sample of accused J.C.L. Fahim @ Murgi) and exhibit 4 (blood sample of accused Sunil @ Raghu).
(32) The witness has further proved that The source of exhibits 1d, 2, 3 and 4 were subjected to DNA isolation and DNA was isolated from the source of exhibits 1d, 2, 3 and 4. According to him, DNA profile for the exhibits 1d, 2, 3 and 4 was prepared by using Amp FLSTR Minifiler PCR Amplification kit and Y filer PCR Amplification kit and STR analysis was used for the sample. He has testified that the data was then analyzed by using Gene Mapper IDX software, however Y filer on the exhibit 4 could not be generated due to inhibitors. The witness has further testified that on examination the alleles from the source of exhibit 3 (blood gauze of accused Fahim @ Murgi) are accounted in the alleles from the source of exhibit 1d (underwear of deceased Salman), however the alleles from the source of exhibit 4 (blood gauze of accused Sunil @ Raghu) are not accounted in the alleles from the source of exhibit 1d (underwear of deceased Salman). He has proved having concluded that the DNA profiling (Minifiler & YSTR analysis) performed on the exhibits 1d, 2, 3 and 4 are sufficient to conclude that the single DNA profile from the source of exhibit 1d (underwear of St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 25 deceased Salman) is matching with DNA profile from the source of exhibit 3 (blood gauze of accused Fahim @ Murgi), however the single DNA profile from the source of exhibit 1d (underwear of deceased Salman) is not matching with DNA profile from the source of exhibit 4 (blood gauze of accused Sunil @ Raghu). According to him, after examination the remnants of the exhibits were resealed with the seal of AKS FSL DELHI. He has proved his detailed report in this regard which is Ex.PW24/A (running into four pages).
(33) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that he had given his report at the instance of the Investigating Officer and has not conducted the examination in fair manner and gave his report in a routine manner.
Nodal Officer:
(34) PW8 Sh. Pawan Singh, Nodal Officer from Idea Cellular Ltd.
has brought the summoned record in respect of mobile No. 8750023400 which has been issued in the name of Smt. Pancham W/o Sh. Ram Parvesh, R/o D233, Swaroop Nagar, Delhi 42 vide Customer Application Form which is Ex.PW8/A and copy of election I card in support of ID proof is Ex.PW8/B. Witness has further proved the Call Details for the period 15.10.2012 till 07.11.2012 which are Ex.PW8/C (running into three pages) and the certificate under Section 65 B of Indian Evidence Act which is Ex.PW8/D. This witness St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 26 was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
Police/ Official Witnesses:
(35) PW1 SI Naresh Pal is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the spot of incident and having prepared the Crime Team Report which is Ex.PW1/A. (36) In his cross examination by Ld. Defence Counsel, witness has deposed that the information was received at 10.40 AM and they reached at the spot at about 11.10 AM with Ct. Parvinder, ASI Sazid Hassan and driver of official vehicle. He has also deposed that they remained at the spot for about 30 minutes i.e. till 11.40 AM and public persons were gathered at the spot.
(37) PW2 Ct. Parvinder is also a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the photographs of scene of crime which is Ex.PW2/A1 to Ex.PW2/17 negatives of which photographs are collectively Ex.PW2/B. According to the witness he took only 17 photographs at the spot and inadvertently it was written in his affidavit Ex.PW2/1 that 20 photographs were taken.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 27
(38) In his cross examination by Ld. Defence Counsel, witness has deposed that the information was received at about 10.40 AM and he departed for the spot with SI Naresh Pal and ASI Sazid Hassan and driver of official vehicle. According to the witness they reached at the spot at about 11.05 AM and remained there for 35 to 40 minutes and many public persons had gathered at the spot.
(39) PW3 WHC Sunaina is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved having recorded the FIR No. 313/12 copy of which is Ex.PW3/A and her endorsement on rukka which is Ex.PW3/B. (40) In his cross examination by Ld. Defence Counsel, witness has denied the suggestion that she recorded the FIR ante timed and ante dated.
Witness has admitted that the FIR was lodged on the directions of the SHO. (41) PW4 SI Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having visited the scene of crime and having prepared the scaled site plan which is Ex.PW4/A. (42) In his cross examination by Ld. Defence counsel, witness has deposed that he prepared the site plan while sitting in his office on the basis of rough notes and measurement taken by him from the spot when he visit spot on 27.11.2012. Witness has denied the suggestion that he did not visit the spot St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 28 that is why rough notes are not on record.
(43) PW5 HC Chander Bhan is also a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved entry in register no.19 vide S.No. 877 copy of which is Ex.PW5/A (two pages); entry at S. No.878 copy of which is Ex.PW5/B (two pages); entry at S. No. 879 copy of which is Ex.PW5/C (two pages); entry in register no. 21 vide RC 3/21/13 copy of which is Ex.PW5/D and receipt issued by FSL which is Ex.PW5/E; RC No. 34/21/13 copy of which is Ex.PW5/F and receipt issued by FSL which is Ex.PW5/G. (44) In his cross examination by Ld. Defence Counsel, witness has denied the suggestion that the case property was tampered with when the same was in his custody or that the above said entries are ante dated and ante timed at the instance of the Investigating officer. (45) PW6 Ct. Mahipal Singh is a formal witness who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 3.1.2013 he took seven sealed pullandas from the MHCM vide RC No. 3/21/13 copy of which is Ex.PW5/D and RC No. 34/21/13 copy of which is Ex.PW5/F and deposited the same at FSL Rohini vide receipt Ex.PW5/E and Ex.PW5/G. (46) In his cross examination by Ld. Defence counsel, witness has denied the suggestion that the case properry was tampered with when the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 29 same was in his custody.
(47) The witness Ct. Mahipal Singh (PW6) was recalled for further examination after filling of supplementary charge sheet, wherein the witness has deposed that on 12.05.2014 he received the exhibits duly sealed with the seal of IKM FSL DELHI from MHC(M) on the directions of the Investigating Officer and took the same to FSL Rohini again vide RC No. 34/21/14 which is Ex.PW6/A but due to some objections the exhibits could not be deposited in the office of FSL and therefore he returned to the Police Station and handed over the exhibits to the MHC(M).
(48) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that the case property was tampered during the time the same remained in his possession.
(49) PW7 HC Pramod is a formal witness being the PCR Official who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 8.11.2012 at 10:26:29 hrs he received a call from mobile No. 9871557012 to the effect that "Ramgarh Colony Bijli Ghar Ke Pass Big Apple Ki Dukan Ke Paas Ek Ladka Mara Pada Hai, Jiski age Lagbhag 1516 years hai". He has proved having filled up the PCR Form which is Ex.PW7/A. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard. (50) PW18 Ct. Sukhbir Singh has deposed that on 08.11.2012 he was posted at Police Station Mahendra Park and at about 10.30AM after receiving a call of DD No. 14A on which he alongwith SI Anoop Yadav reached at a St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 30 vacant plot A46, Ram Garh, Jahangir Puri, Delhi. According to the witness there was a boundary wall of height of fivesix feet on the plot from four sides and many public persons were present there outside the boundary wall. Witness has further deposed that they saw a dead body of a boy aged about 1415 years inside the plot in the bushes and the boy was lying with his face towards the ground and there were no clothes on his body except his underwear and pant which was pulled down till his knee on the legs. According to the witness one grey coloured full sleeves winter cloth and one check shirt and one pair of slippers were also found near the dead body. Witness has further deposed that SI Anoop called the Crime Team officials who conducted the proceedings and photographer took photographs and the dead body was inspected by the Investigating Officer and there was grass (ghass phoos) and blood found on his face. According to the witness there were blue injury marks on his neck and chest portion and meanwhile one person namely Naim reached there and identified the dead body as that of Salman S/o Salim. He has testified that Beat HC Ravinder Nath also reached there. According to him, SI Anoop prepared the rukka and handed over the same to HC Ravinder Nath for registration of FIR and he was sent to Police Station Mahendra Park and thereafter on the direction of SI Anoop he (witness) took the dead body of Salman to the mortuary of BJRM Hospital. He has further testified that at about 12.301.00PM SI Anoop came at BJRM Hospital and postmortem was conducted on the body of Salman after which the dead body was handed over the relatives of the deceased vide St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 31 Ex.PW12/B. Witness has further deposed that after postmortem doctor handed over two packet in sealed condition with the seal of hospital with sample seal to him and he handed over the same to SI Anoop who seized the same vide memo Ex.PW18/A. (51) In his cross examination by Ld. Defence counsel, witness has deposed that 2025 public persons were present near the plot when they reached there. He is unable to tell whether the Crime Team lifted an chance prints from the spot or not. He has further deposed that nothing was found in the pant of the deceased and nothing was found in the shirt of deceased. He does not remember whether SI Anoop prepared any document at the spot except rukka in his presence. He is not aware about the contents of rukka. Witness has denied the suggestion that he did not visit the spot with SI Anoop or that he did not join the investigation at any time or that his signatures were obtained by the Investigating Officer on the seizure memo Ex.PW18/A at the Police Station.
(52) PW19 SI Anoop Singh has deposed that on 08.11.2012 he was posted at Police Station Mahendra Park and on that day at about 10.30AM he received DD No. 14A from the Duty Officer which is Ex.PW19/A. Witness has further deposed that thereafter he alongwith Ct. Sukhbir reached at the place of incident i.e. a vacant plot A46, Ram Garh, Jahangir Puri, Delhi and there was a boundary wall of height of 56 feet on the plot from four sides. According to the witness many public persons were present there outside the boundary wall and they saw a dead body of a male boy aged about 1415 years St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 32 inside the plot in the bushes who was lying with his face towards the ground. Witness has further deposed that there was no cloth on his body except his underwear and pant near his knee on the legs and one grey coloured full sleeves under shirt, one check shirt of black colour and one pair of slippers were also found near the dead body. According to the witness he called the Crime Team officials at the spot and in the meanwhile the SHO Inspector Darshan Singh also reached the spot. He has further deposed that Crime Team official conducted the proceedings and photographer took photographs and they Inspected the dead body. The witness has also deposed that after turning the dead body they found grass (ghass phoos) and blood was found on his face and there were blue injury marks on his neck and chest portion and meanwhile one person namely Naim came there who identified the dead body as of Salman S/o Salim. According to the witness in the meanwhile Beat HC Ravinder Nath also reached there and there were many public persons and hence due to law and order problem, he shifted the dead body of Salman with clothings and slippers to BJRM Hospital Mortuary through Ct. Sukhbir. He has proved having prepared the rukka which is Ex.PW19/B and the same was sent to the Police Station Mahendra Park through HC Ravinder Nath for the registration of FIR. According to the witness SHO Inspector Darshan Singh remained at the spot and he went to the BJRM Hospital Mortuary and meanwhile Salim, father of deceased Salman also reached at the hospital alongwith Naim. Witness has further deposed that he recorded the statement of Mohd. Salim vide Ex.PW15/A and statement of Naim vide Ex.PW11/A. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 33 According to the witness he also recorded statement of Shakeel Ahmed vide Ex.PW12/A and he also recorded statement of Sheikh Afsar Ali vide Ex.PW19/C. Witness has further deposed that thereafter he filled the Inquest Form Ex.PW19/D, prepared the brief facts which is Ex.PW19/E and made request for postmortem vide Ex.PW19/F. He has also deposed that on his request postmortem was conducted on the body of Salman and after postmortem the dead body was handed over the relatives of the deceased vide Ex.PW12/B. According to the witness after postmortem Ct. Sukhbir handed over two packets in sealed condition with the seal of hospital and sample seal to him and he seized the same vide memo Ex.PW18/A. Witness has further deposed that in the meanwhile Inspector Darshan also reached at the hospital and recorded the statement of Naim and Salim after which they returned back to the spot and thereafter Investigating Officer Inspector Darshan Singh prepared the site plan at his instance which is Ex.PW19/G. According to him, thereafter they returned to the Police Station where he deposited all the seized articles in the Malkhana and the Investigating Officer recorded statement of Gaurav and also recorded his statement. (53) Witness has further testified that on 09.11.2012 at about 8.30AM he alongwith Inspector Darshan Singh and HC Sudesh went to the IBlock, Jahangir Puri where Salim father of deceased and Gullu brother of the deceased met them. According to the witness at the instance of Salim they reached the house of the accused Sonu @ Fahim @ Murgi and at the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 34 instance of Salim, the accused was apprehended by them. Witness has further deposed that Sunil was observed to be below 18 years on which the Investigating Officer Called the Juvenile Welfare Officer SI Kaptan Singh and in his presence, the accused Sonu was interrogated by the Investigating Officer and he confessed about the incident of murder of the deceased Salman. Witness has further deposed that the accused was taken into custody vide apprehension memo Ex.PW19/H, his personal search was taken vide Ex.PW19/I and his disclosure statement was recorded vide Ex.PW19/J. Witness has further deposed that at the instance of Fahim, his shirt of cream colour of white and brown linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were kept in a cloth pullanda and sealed with the seal of DS and seized vide seizure memo Ex.PW19/K. According to the witness he disclosed that he was wearing the said clothes at the time of incident and thereafter accused pointed out the place of incident vide pointing out memo Ex.PW19/L. Witness has further deposed that accused Fahim @ Sonu produced one half piece of brick from place of incident from the bushes and disclosed that he had caused injuries to the deceased Salman by said brick piece after which the said brick was sealed in a cloth pullanda by the Investigating Officer with the seal of DS and seized the same vide memo Ex.PW19/M. According to him, thereafter Fahim @ Sonu was handed over to HC Sudesh for medical examination at BJRM Hospital and thereafter they went to the Police Station where they received information from HC Sudesh that medical examination was completed and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 35 thereafter they reached at JJ Board, Delhi, Delhi Gate where Fahim @ Sonu was produced and was sent to the observation home. He has testified that thereafter they returned to the Police Station where the Investigating Officer recorded his statement.
(54) According to the witness, on 11.11.2012 he again joined the investigation with Inspector Darshan Singh and HC Sudesh and they all reached near Kushal Cinema, Jahangir Puri at about 9.4510.00PM where at the instance of secret informer they apprehended accused Sunil. According to the witness one mobile phone make Wing with SIM was recovered from his possession which mobile was sealed in a cloth pullanda by the Investigating Officer with the seal of DS and seized the same vide memo Ex.PW19/N. Witness has further deposed that the accused Sunil was interrogated by the Investigating Officer and he confessed about his involvement in the murder of deceased Salman after which the accused Sunil was arrested vide memo Ex.PW19/O and his personal search was taken vide Ex.PW19/P. According to the witness thereafter they reached at the Police Station where Salim was present and he identified the accused Sunil. He has testified that the wearing clothes of accused Sunil i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were taken into possession by the Investigating Officer and sealed the same in a cloth pullanda with the seal of DS and seized the same vide memo Ex.PW19/Q. Witness has further deposed that the Investigating Officer recorded disclosure statement of Sunil vide Ex.PW19/R after which the accused Sunil also pointed out the place of St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 36 incident vide pointing out memo Ex.PW19/S and accused Sunil was sent to BJRM Hospital for Medical Examination through HC Sudesh and thereafter they returned back to the Police Station and the Investigating Officer recorded his statement.
(55) The witness has correctly identified the accused Sunil and Sonu @ Fahim in the Court. He has also identified the case property i.e. one dual SIM mobile phone make Wing bearing IMEI No. 357430045604186 and IMEI No. 357430045704184 with SIM of idea bearing SIM of mobile number 8750023400 as the same which was recovered from the possession of accused Sunil, which mobile is Ex.P1; one shirt, one T shirt, one pant, one underwear and one pair of Shoes as the same as recovered from the possession of the accused Sunil which are collectively Ex.P2; one shirt and one pant as the same as recovered at the instance of accused Fahim @ Sonu which shirt and pant are collectively Ex.P3; one half brick as the same which was recovered at the instance of Fahim @ Sonu which brick piece is Ex.P4; one shirt, one inner, one pant, one underwear and one pair of chappals as the same which was belonging to the deceased and found with him at the spot, which articles are collectively Ex.P5.
(56) In his cross examination by Ld. Defence counsel, witness has deposed that he reached at the spot i.e. A block 46, Ramgarh at about 10:45 AM. Witness has admitted that they did not verify about the caller of DD No. 14A. According to the witness there was one Apple Shop in front of the spot St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 37 but they did not go to that Apple Shop for inquiry and has voluntarily explained that it was far away from the spot and that is why they did not go there but he is unable to tell the exact distance. Witness has denied the suggestion that he cannot tell about the exact distance as he never visited the spot. Witness has further deposed that Crime Team reached the spot at about 11:15 AM and Investigating Officer did not recorded the statement of Naim at the spot. Witness has denied the suggestion that statement of Naim was not recorded at the spot because he did not come there. According to the witness he remained at the spot on 08.11.2012 till 12:50 PM and about 50 public persons had gathered there. Witness has further deposed that Investigating Officer requested those public persons to join the investigations but none agreed to join the proceedings, though he did not give any notice to those public witnesses who had refused to join the proceedings. According to the witness the Investigating Officer did not seize any water bottle from the spot in his presence. He does not remember whether he saw any water bottle at the spot or not. Witness has denied the suggestion that he cannot tell it he had seen any water bottle at the spot because he did not visit the spot. He has denied that he had signed on all the memos while sitting in the Police Station at the instance of senior officers. Witness has further deposed that Investigating Officer did not record statement of any witness at the spot in his presence and Crime Team remained at the spot for about half an hour and they left the spot in his presence. According to the witness he went to the spot by his personal motorcycle and he reached at BJRM Hospital at about 1:051:10 St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 38 PM. Witness has denied the suggestion that he never went to the hospital or that is why his name is not mentioned in postmortem report for accompanying the dead body. Witness has denied the suggestion that he did not record the statement of Mohd. Salim, Sheikh Afsar Ali, Naim and Shakeel Ahmed in the hospital because he was not present there. He has also denied the suggestion that his signatures were obtained by the Investigating Officer on the above said statements while sitting in the Police Station or that he did not return back to the spot or that no site plan was prepared at his instance by the Investigating Officer. Witness has further deposed that his statement was recorded in the Police Station by the Investigating officer. He does not remember whether Investigating Officer recorded statement of any other witness in his presence or not. Witness has denied the suggestion that he does not remember the above said fact because he had not joined the investigations in the present case or that only his signatures were obtained by the Investigating Officer while sitting in the Police Station on all the documents. Witness has also denied the suggestion that the accused Sonu was not arrested in the manner as mentioned in his statement or that no confession was made by the accused Sonu @ Fahim. The witness has further denied the suggestion that no disclosure statement was given by the accused Sonu @ Fahim or that he recorded the disclosure statement/version of the accused Sonu of his own at the instance of the Investigating Officer. Witness has further deposed that the shirt of cream color and one pant of cream color were very dirty and there were stains but he was not sure whether there were any blood stains or not. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 39 Witness has denied the suggestion that the above said clothes were planted upon accused Sonu @ Fahim and they do not belong to accused Sonu @ Fahim. According to the witness, the accused Sonu was arrested at about 10:30 AM on 09.11.2012 and he did not ask or verify about the fact that whether accused Sonu @ Fahim was at home on the day of incident at about 810:30 PM and has voluntarily explained that Investigating Officer was interrogating the mother of accused Sonu but he is not aware whether the above said fact of the presence of accused at home on 08.11.2012 from 8:0010:00 PM was inquired by the Investigating Officer or not. Witness has further deposed that no neighbor was interrogated/ inquired about the above said fact by the Investigating Officer or by him and has voluntarily explained that no neighbor was ready to join the investigations. According to the witness no mobile was recovered from accused Sonu @ Fahim. Witness has denied the suggestion that accused was having mobile but it was not recovered as it would have shown the right location of accused Sonu on the day and time of incidence which was not at the spot or in Video Game shop. Witness has further deposed that the half piece of brick recovered in the present case was very dirty and it was very difficult to tell whether there were any blood stains on it or not. According to him, they reached at the house of Sonu at about 9:30 AM and remained there till 11:1511:30 AM on 09.11.2012. Witness has denied the suggestion that the half piece of brick was not recovered at the instance or pointing out of accused Sonu. Witness has denied the suggestion that the said brick was planted upon the accused persons. According to the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 40 witness his statement was recorded by the Investigating Officer three times i.e. on 08.11.2012, 09.11.2012 and on 11.11.2012 and his statement was recorded in the Police Station by the Investigating Officer on 09.11.2012 in the evening but he does not remember the exact time. Witness has further deposed that he returned back to the Police Station on 09.11.2012 in the evening but he does not remember the exact time. According to the witness he did not make the departure or arrival entry and has voluntarily explained that Investigating Officer might have made it. Witness has further deposed that accused Sunil was arrested at about 9:15 PM. He has denied the suggestion that the accused Sunil was arrested from his house and not from near Kushal Cinema or that no confession was made by accused Sunil after his apprehension by them. Witness has denied the suggestion that the signatures of Mohd. Salim were obtained on arrest memo, afterwards while sitting in the Police Station or that witness Naim is secret informer of police and in the present case he has been planted as a witness by the police to falsely implicate the accused persons in the present case. He does not remember whether he had seen any blood stains on the clothes alleged to be recovered from accused Sunil. Witness has denied the suggestion that no clothes were removed from accused Sunil or that they were planted upon the accused or that the accused Sunil did not point out the place of incident. According to the witness no public person was joined as a witness at the time the accused Sunil changed his clothes. He has explained that the other set of clothes had been taken from the house of Sunil by the Investigating Officer St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 41 but he is unable to tell if this fact finds a mention in the record. Witness has denied the suggestion that the clothes which have been produced in the Court today do not belong to Sunil or that they do not even fit him. He has also denied the suggestion that the accused did not give any disclosure statement or that his signatures were obtained by the Investigating Officer forcibly on disclosure statement and pointing out memos.
(57) The witness SI Anoop Singh (PW19) was also recalled for further examination after filing of the supplementary charge sheet, during which the witness has deposed that 23.04.2014 the SHO handed over to him the DNA Finger Printing Result in respect of the present case and directed him to file the same in the form of supplementary charge sheet. According to the witness, on 25.04.2014 he filed the FSL/DNA Finger Printing Result before Ld. MM in the form of supplementary charge sheet. He has further deposed that in compliance to order dated 09.05.2014 he directed the MHC(M) to get the exhibits deposited in the FSL and on 13.05.2014 the exhibits were got deposited in the FSL office by the MHC(M). The witness has testified that on the directions of SHO dated 31.05.2014 he got the FSL/Finger Printing result submitted before Ld. MM on 02.06.2014.
(58) This witness was not crossexamined by the Ld. Defence Counsel despite an opportunity being granted in this regard. (59) PW20 HC Sudesh Kumar has deposed that on 09.11.2012 he was posted at Police Station Mahendra Park and on that he had joined the investigations of the present case along with SHO and SI Anoop. According St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 42 to the witness, they all went to I1152, Jahangirpuri where on the pointing out of Mohd. Salim and Gullu the accused Sonu @ Murgi was apprehended. He has also deposed that Investigating Officer Interrogated the accused and since he appeared to be a juvenile and also gave his age as less than 18 years, the Juvenile Officer SI Kaptan was called by the Investigating Officer and Sonu was handed over to him who interrogated the accused. Witness has further deposed that the clothes which Sonu was wearing were got changed at his house and the same were converted into pullanda and sealed with the seal of DS and thereafter they were taken into possession by Investigating Officer vide memo Ex.PW19/K. According to the witness the accused Sonu was apprehended vide apprehension memo Ex.PW19/H, his personal search was conducted vide memo Ex.PW19/I and the statement of Gullu and Mohd. Salim were recorded and they were relieved after which the disclosure statement of Sonu was recorded vide Ex.PW19/J. He has also deposed that the accused Sonu pointed out the place of incident vide Ex.PW19/L after which he got recovered a half brick as the one with which he inflicted injuries on the deceased. Witness has further deposed that the Investigating Officer converted the same into a pullanda and sealed the same with the seal of DS and thereafter seized the same vide memo Ex.PW19/M. Witness has further deposed that thereafter Sonu was taken to BJRM hospital where his medical examination was got conducted and the doctor handed over blood sample in a sealed pullanda and a sample seal to him which he handed over to the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 43 Investigating Officer who seized the same vide memo Ex.PW20/A. According to the witness the accused Sonu was then produced before the JJB at Delhi Gate and he was sent to Observation Board.
(60) Witness has further deposed that on 11.11.2012 he again joined the investigations in the present case along with the Investigating Officer who had received a secret information regarding the presence of accused Sunil near Kushal Cinema, G Block, Jahangirpuri. According to the witness on receipt of this information he along with SI Anoop, Inspector Darshan Singh reached Kaushal Cinema where the secret informer pointed out towards a boy standing in front of Kushal Cinema on which he was apprehended and on interrogation, his name was disclosed as Sunil @ Raghu. Witness has further deposed that Investigating Officer interrogated him and arrested him vide arrest memo Ex.PW19/O, his personal search was conducted vide memo Ex.PW19/P and the disclosure statement of the accused was also recorded vide Ex.PW19/R. According to the witness the accused then led them to the place of incident where the Investigating Officer prepared the pointing out memo which is Ex.PW19/S, after which the accused was taken to the BJRM Hospital for his medical examination. Witness has further deposed that doctor handed over the blood sample of the accused duly sealed with the seal of the hospital along with the sample seal to him and he handed over the same to the Investigating Officer who seized the same vide seizure memo Ex.PW20/B after which the accused was brought to the Police Station and put in the lock up and his statement was recorded thereafter. The witness has correctly identified the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 44 accused Sunil and Sonu in the Court.
(61) Leading questions were put to the witness by the Ld. Addl. PP for the State, wherein the witness has admitted that Sonu @ Fahim produced his shirt of cream color with white and brown linings and one cream pant from his house and disclosed that he was wearing the said clothes at the time of incident and thereafter Investigating Officer sealed the same and seized the same. Witness has further admitted that one mobile phone of Wing company with a SIM was recovered from the possession of accused Sunil on 11.11.2012 and sealed by the Investigating Officer in the cloth pullanda with the seal of DS and seized the same vide seizure memo Ex.PW19/N. Witness has also admitted that on 11.11.2012 accused Sunil was brought to the Police Station and his coffee colored shirt and coffee colored pant and one underwear and his one pair of shoes and one Tshirt of round neck were taken in possession by the Investigating Officer and kept the same in a cloth pullanda and sealed the same with the seal of DS and seized the same vide seizure memo Ex.PW19/Q. (62) He has correctly identified one dual SIM mobile phone make Wing bearing IMEI No. 357430045604186 and IMEI No. 357430045704184 with SIM of idea bearing SIM of mobile number 8750023400 as the same which was recovered from the possession of accused Sunil, which mobile is Ex.P1; one shirt, one T shirt, one pant, one underwear and one pair of Shoes as the same as recovered from the possession of the accused Sunil which are St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 45 collectively Ex.P2; one shirt and one pant as the same as recovered at the instance of accused Fahim @ Sonu which shirt and pant are collectively Ex.P3; one half brick as the same which was recovered at the instance of Fahim @ Sonu which The brick piece is Ex.P4 and one shirt, one inner, one pant, one underwear and one pair of chappals as the same as belonging to the deceased and found with him at the spot which articles are collectively Ex.P5.
(63) In his cross examination by Ld. Defence Counsel, the witness has deposed that he did not make any separate departure entry on both the days when he had joined the investigations and has voluntarily added that Investigating Officer must have done the entries. Witness has further deposed that they had reached the house of Sonu at around 10:00 AM which house is 25 sq feet area and constructed upto third floor. According to the witness Investigating Officer had made a request to some of the neighbors to join the investigations but they refused as the issue related to a neighbour. Witness has further deposed that in his presence Investigating Officer did not give any notice to the public persons/ neighbors who had refused to join the proceedings. He is unable to tell the names of those neighbors who had refused to join the investigations. Witness has denied the suggestion that the accused Sonu was not apprehended in the manner as deposed by him or that Sonu did not make any disclosure regarding his involvement in the present case. He has admitted that Sonu did not resist when they apprehended him. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 46 (64) Witness has admitted that Sonu and Sunil were not known to him prior to their apprehension. He is not aware if they had any previous criminal record. He has admitted that the area of Kaushal cinema is thickly populated with large number of rehriwala. Witness has further deposed that Investigating Officer had tried to join some public persons on receipt of secret information but they refused. He is unable to give the name of any public person who had refused to join the investigations. Witness has admitted that there are shops around the Kaushal Cinema but Investigating Officer did not give any notice to any public persons who had refused to join the proceedings. Witness has admitted that Sunil did not offer any resistance on being apprehended. He has denied the suggestion that Sunil was not arrested or apprehended in the manner as deposed by him or that Sunil had been illegally lifted from his house and detained. Witness has further denied the suggestion that Sunil did not make any disclosure statement or that the Investigating Officer recorded the same of his own. Witness has also deposed that he did not notice any blood stains on the half brick. Witness has admitted that such half bricks are normally found lying on the road and there were also such bricks lying on the same plot. He has denied the suggestion that no half brick was got recovered by Sonu @ Fahim or that the same has been planted only to connect him with the alleged incident.
(65) PW21 Inspector Darshan Singh has deposed that on 08.11.2012 he was posted as SHO of Police Station Mahendra Park and on that day at about 10.30 AM information was received about the dead body lying at the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 47 Ram Garh, Jahangir Puri and DD No. 14A was recorded which was marked to SI Anoop. According to the witness at about 10.45AM he also reached at plot No. A46, Ram Garh , Jahangir Puri, Delhi where SI Anoop, Ct. Sukhbir, HC Ravinder Nath met him there and many public persons were also present there. Witness has further deposed that he saw a dead body of a boy about 1415 years old inside the plot in the bushes lying with his face towards the ground and there were no clothes on his body except his underwear and pant near the knee on his legs. According to the witness one grey coloured full sleeves under shirt and one check shirt of black colour were found near the dead body and one pair of slippers were also found near the dead body. Witness has further deposed that they called the Crime Team officials at the spot who conducted the proceedings and photographer took photographs. According to the witness they Inspected the dead body and after turning the dead body they found grass (ghass phoos) and blood was found on his face. Witness has further deposed that there were blue injury marks on the neck and chest portion and meanwhile one person namely Naim came there who identified the dead body as of Salman S/o Salim. Witness has further deposed that there were many public persons there and due to law and order problem, he directed SI Anoop to shift the dead body of Salman with clothings and slippers to BJRM Hospital Mortuary through Ct. Sukhbir. According to the witness SI Anoop prepared the rukka which was sent to the Police Station Mahendra Park through HC Ravinder Nath for the registration of FIR whereas he himself remained at the spot and SI Anoop went to the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 48 BJRM Hospital Mortuary. Witness has further deposed that he also reached at the hospital at about 2.00PM and recorded the statement of Naim and Salim and SI Anoop handed over all the prepared documents to him and thereafter they returned back to the spot and prepared the site plan at the instance of SI Anoop which is Ex.PW19/G. According to the witness thereafter they returned to the Police Station and on his direction SI Anoop deposited all the seized articles in the Malkhana and he recorded statement of Gaurav and SI Anoop and other police officials at the Police Station. Witness has further deposed that he searched for the accused but the accused could not be arrested.
(66) Witness has further testified that on 09.11.2012 at about 8.30AM he alongwith SI Anoop, HC Sudesh went to the IBlock, Jahangir Puri where Salim father of deceased and Gullu brother of the deceased met them and he recorded statement of Gullu. According to the witness at the instance of Salim they reached the house of the accused Sonu @ Fahim @ Murgi and at the instance of Salim, the accused Sonu was apprehended. Witness has further deposed that the accused was primafacie observed to be below 18 years on which he called the Juvenile Welfare Officer SI Kaptan Singh and in his presence, Sonu was interrogated during which he confessed about the incident of murder of the deceased Salman. According to the witness, the accused Sonu was taken into custody vide apprehension memo Ex.PW19/H on which the mother of accused namely Smt. Anisa put her thumb impression. He has proved that the personal search of the accused Sunil was taken vide St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 49 Ex.PW19/I and his disclosure statement was recorded vide Ex.PW19/J. According to the witness at the instance of accused Fahim, his shirt of cream colour of white and brown linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were kept in a cloth pullanda and sealed with the seal of DS and seized vide seizure memo Ex.PW19/K. Witness has also deposed that the accused disclosed that he was wearing the said clothes at the time of incident and thereafter accused pointed out the place of incident vide pointing out memo Ex.PW19/L. According to the witness accused Fahim @ Sonu produced one half piece of brick from place of incident from the bushes and disclosed that he had caused injuries to the deceased Salman with the said brick piece on which the said brick was sealed in a cloth pullanda with the seal of DS and taken into possession vide memo Ex.PW19/M. Witness has further deposed that thereafter they took the accused Sonu @ Fahim to BJRM Hospital where his medical examination was conducted after which doctor handed over blood sample of the accused Sonu duly sealed with the seal of hospital with sample seal to them and he seized the same vide memo Ex.PW20/A. According to the witness thereafter Sonu @ Fahim was produced before Juvenile Justice Board and was sent to Observation Home and thereafter they returned to the Police Station where he deposited the seized articles in the Malkhana and recorded the statements of witnesses.
(67) Witness has further deposed that on 11.11.2012 he alognwith SI Anoop and HC Sudesh reached near Kushal Cinema, Jahangir Puri at about St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 50 9.00PM where at the instance of secret informer they apprehended accused Sunil and one mobile phone of make Wing with SIM was recovered from his possession. According to the witness the said mobile was sealed in a jar with the help of cloth and sealed the same with the seal of DS and seized vide memo Ex.PW19/N. Witness has further deposed that the accused was interrogated by him during which he confessed about his involvement in the murder of deceased Salman. He has also deposed that accused Sunil was arrested vide memo Ex.PW19/O and his personal search was taken vide Ex.PW19/P after which they reached at Police Station where Salim was present who identified the accused Sunil. Witness has further deposed that the clothes worn by the accused Sunil i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were taken into possession by him and he sealed the same in a cloth pullanda with the seal of DS and seized the same vide memo Ex.PW19/Q. According to the witness he recorded the disclosure statement of accused Sunil vide Ex.PW19/R after which the accused Sunil pointed out the place of incident vide pointing out memo Ex.PW19/S and the accused Sunil was sent to BJRM Hospital for medical Examination through HC Sudesh and they returned back to the Police Station. He has testified that HC Sudesh returned back to the Police Station and produced blood sample of accused Sunil to him in sealed condition with the seal of Hospital with sample seal to him on which he seized the same vide seizure memo Ex.PW20/B. According to the witness he deposited the seized St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 51 articles in the Malkhana and recorded statement of witnesses and on the next day the accused was produced before the Court and was sent to Judicial Custody. The witness has further deposed that he collected the birth certification of accused Sonu @ Fahim and got the same verified. He has also deposed that on 27.11.2012 SI Manohar Lal took the rough notes and measurement of the spot and prepared the scaled site plan. He has proved having collected the Crime Team Report, Photographs, Postmortem Report with inquest documents and the PCR Form during his investigations. According to the witness, on 28.12.2012 he took the pullanda of the brick to the Autopsy Surgeon for subsequent opinion vide his application Ex.PW21/A and collected the subsequent opinion which is Ex.PW10/B. Witness has further deposed that during investigation Fahim @ Sonu was declared more than 18 years by the Juvenile Justice Board. He has also deposed that on 03.01.2013 exhibits of this case were sent to the FSL, Rohini through Ct. Mahipal and he recorded statement of witness and after completion of investigation he submitted charge sheet against accused Sunil and Fahim @ Sonu.
(68) The witness has correctly identified the accused Sunil and Fahim @ Sonu in the Court and also identified the case property i.e. one dual SIM mobile phone make Wing bearing IMEI No. 357430045604186 and IMEI No. 357430045704184 with SIM of idea bearing SIM of mobile number 8750023400 which was recovered from the possession of accused Sunil, which mobile is Ex.P1; one shirt, one T shirt, one pant, one underwear and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 52 one pair of Shoes belonging to the accused Sunil which are collectively Ex.P2; one shirt and pant belonging to the accused accused Fahim @ Sonu which are collectively Ex.P3; one half brick as the same recovered at the instance of Fahim @ Sonu which brick piece is Ex.P4; one shirt, one inner, one pant, one underwear and one pair of chappals as belonging to the deceased which articles are collectively Ex.P5.
(69) In his cross examination by Ld. Defence counsel, witness has deposed that he made the departure entry on 08.11.2012 while leaving the Police Station for spot but it has not been mentioned in the record. According to the witness there were about 6070 public persons present when he reached the spot i.e. A block 46, Ramgarh at about 10:45 AM. Witness has further deposed that he had verified the identity of the caller of DD No. 14A and there was one Apple Shop in front of the spot but he did not go to the said shop for inquiry. Witness has further deposed that Crime Team reached the spot at about 11:15 AM. According to the witness he did not record the statement of Naim at the spot at that point of time and has voluntarily explained that he recorded the same later. Witness has denied the suggestion that statement of Naim was not recorded at the spot because he did not come there. Witness has further deposed that he remained at the spot on 08.11.2012 till 2.00PM and he did not request any of the public persons standing there to join the investigations. He has also deposed that he did not seize any water bottle from the spot and there was a water bottle lying at the spot. Witness has further deposed that Crime Team remained at the spot for about 45 St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 53 minutes. He has also deposed that he went to BJRM Hospital by his official vehicle and reached there at around 22:30 PM. Witness has admitted that at that time, he did not record the statement of any person at the spot. He has denied the suggestion that he did not record the statement of Mohd. Salim and Naim in the hospital or that he did not return back to the spot and no site plan was prepared by him at the instance of SI Anoop. According to him, the statement of SI Anoop was recorded in the Police Station at about 5:30 PM. He has denied the suggestion that the accused Sonu was not arrested in the manner as mentioned in his statement or that no confession was made by accused Sonu @ Fahim. Witness has further denied the suggestion that SI Anoop recorded the disclosure statement/ version of the accused Sonu on his directions. According to the witness, a shirt of cream color and one pant of cream color were very dirty and there were stains but they did not appear to be blood stains. Witness has also denied the suggestion that the above said clothes were planted upon accused Sonu @ Fahim and they do not belong to accused Sonu @ Fahim. The witness has further deposed that accused Sonu was arrested at about 10:30 AM on 09.11.2012 and he did not ask the family of Sonu to verify as to whether accused Sonu @ Fahim was at home on the day of incident at about 810:30 PM or at some other place nor any neighbour was interrogated/ inquired about the above said fact by him and has voluntarily explained that he only made inquiries from the shopkeeper who was running the video games shop. According to the witness no mobile was recovered from accused Sonu @ Fahim. Witness has denied the suggestion that accused St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 54 was having mobile but it was not recovered as it would have shown the right location of accused Sonu on the day and time of incident which was not at the spot or in Video Game shop. He has further deposed that the half piece of brick recovered in the present case was very dirty but it was not having any blood stains.
(70) According to the witness they reached at the house of Sonu at about 9:159:30 AM and remained there till about 1½ hours on 09.11.2012. Witness has denied the suggestion that the half piece of brick was not recovered at the instance or pointing out of accused Sonu or that the said brick was planted upon the accused persons. He has testified that accused Sunil was arrested at about 9:309:45 PM. Witness has denied the suggestion that accused Sunil was arrested from his house and not from near Kushal Cinema or that no confession was made by accused Sunil after his apprehension by them. Witness has also denied the suggestion that the signatures of Mohd. Salim were obtained on arrest memo, afterwards while sitting in the Police Station or that witness Naim is secret informer of police and in the present case he had been planted as a witness by the police to falsely implicate the accused persons in the present case. According to the witness he could not observe any blood stains on the clothes alleged to have been recovered from accused Sunil. Witness has denied the suggestion that no clothes were removed from accused Sunil or that they were planted upon the accused or that Sunil did not pointed out the place of incident. Witness has further deposed that no public person was joined as a witness at the time the accused St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 55 Sunil changed his clothes and the other set of clothes had been brought by his father from his house but he did not mention this fact on record by way of any memo. Witness has denied the suggestion that the clothes which have been produced in the Court do not belong to Sunil or that they do not even fit him. According to the witness he had obtained the call record of the SIM No. 8750023400 from the service provider along with the details regarding the ownership. Witness has denied the suggestion that the said SIM and mobile have been planted upon the accused Sunil or that the accused did not give any disclosure statement or that his signatures were obtained by him forcibly on disclosure statement and pointing out memos. Witness has also denied the suggestion that all documents were prepared and fabricated by him while sitting in the Police Station and were got signed by him from various witnesses at the Police Station itself.
(71) PW22 Inspector Lakshmi Dubey has deposed that on 27.04.2013 she collected the FSL results from the FSL Rohini which are Ex.PW13/A and Ex.PW13/B with forwarding letter and thereafter she filed the supplementary charge sheet against the accused persons Sunil and Fahim @ Sonu. This witness was not cross examined by Ld. Defence counsel, despite opportunity granted in this regard.
(72) PW23 HC Mukesh Kumar has deposed that on 13.05.2014 he was posted as MHC(M) at police station Mahendra Park and on that day Ct. Vikas took four sealed parcels duly sealed with the seal of FSL vide RC No. 36/21/14 dated 13.05.2014 copy of which is Ex.PW23/A. According to the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 56 witness on 30.05.2014 Ct. Vikas had brought the FSL result duly sealed with the seal of FSL and handed over the same to him vide RC No. 36/21/14 and no tampering was done while the exhibits and result remained in his possession. He has proved the of entry in this regard which is Ex.PW23/B. (73) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that the entry Ex.PW23/A and Ex.PW23/B are ante dated and ante timed and made later on at the instance of the Investigating Officer or that the case property was tampered during the time same remained in his possession.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(74) After completion of prosecution evidence the statement of the accused were recorded under Section 313 Cr.P.C. wherein all incriminating material was put to the accused which they have denied. The accused Sunil @ Raghu has stated that he is innocent and has been falsely implicated.
According to the accused police had lifted his brother from his house and when he went to the Police Station to know the matter, the police detained him there and falsely implicated him only to work out the present case. He has further stated that he did not make any disclosure statement. (75) The accused Fahim @ Sonu has stated that he was lifted by the police from his house and was taken to the Police Station where he was beaten up mercilessly and his signatures were obtained on some blank papers. According to the witness he did not make any disclosure statement. He has St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 57 stated that he is innocent and has been falsely implicated by the police only to work out the present case.
(76) The accused have preferred not to lead any evidence in their defence.
FINDINGS:
(77) I have heard the arguments advanced before me by the Ld. Addl.
Public Prosecutor for the State and the Ld. Defence Counsels. I have also gone through the memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition No. witness Public witnesses: 1. Ajay (PW9) This witness has deposed on the following aspects:
1. That he used to work as a Waiter in the marriages.
2. That on 08.11.2012 at about 10 AM he was going to Ramgarh behind the Big Apple for some work and one Bengali boy aged about 2530 years informed him that one person was lying dead in the plot within four boundary walls as his face was towards the ground.
3. That he went to the plot and saw that one boy aged about 1314 years was lying dead in the plot and his pant was near his knee and no other clothes on his body "Jamin par ulta nanga mara para tha, aur pant neche paro mein khisakh raheke thei" and his clothes St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 58 were lying near his body.
4. That there were bushes of the beri near the dead body.
5. That he made a call to the police at 100 number from his mobile phone No. 9871557012.
6. That the the SIM of the said mobile number was being used by him.
7. That police reached the spot and thereafter he went away from the spot.
2. Naim (PW11) He is the neighbour of the deceased who has deposed on the following aspects:
1. That he is working as a Kabari and he knew Reshma W/o Saleem being the original resident of his original district Aligarh.
2. That on 08.11.2012 at about 9:00AM Saleem informed him that his son Salman was missing since 07.11.2012 on which he also searched for Salman and at about 12 noon he went to a vacant plot at Ramgarh where he found the dead body of a boy and identified him as that of Salman.
3. That the dead body was found in the bushes and there were no clothes on the body except his pant was found near his knee.
4. That police was also present there and he also informed Saleem about the recovery of dead body of Salman in the plot after which they reached at the spot but the dead body was already removed by the police officials to the Mortuary of BJRM Hospital.
5. That thereafter he along with Saleem reached there and identified the dead body and police recorded his statement about the identification of the dead body vide his statement Ex.PW11/A. He has identified the dead body of Salman from the photographs Ex.PW2/A1 to Ex.PW2/A17.
3. Shakeel Ahmed He is the uncle of the deceased who has proved that he (PW12) identified his dead body at BJRM Hospital mortuary on 08.11.2012 vide his statement Ex.PW12/A and after postmortem dead body was handed over to them vide Ex.PW12/B. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 59
4. Ram Gopal This witness has deposed on the following aspects:
Sisodia (PW14) 1. That the plot No. A46, Ramgarh, Jahangirpuri, Delhi belongs to him and he has been in possession of the same since 18.01.1969 and same was alloted to him by Wazirabad Multipurpose Cooperative Society Ltd.
2. That the copy of the his possession letter which is Ex.PW14/A.
3. That the said plot is a vacant plot and was surrounded by boundary wall which was two to three feet in height and he has been residing at the village Sisodia Mohalla.
5 Mohd. Salim He is the father of the deceased who has deposed on the (PW15) following aspects:
1. That he is residing at I1458, Jahangirpuri, Delhi 33 for the last 1314 years.
2. That he has two daughters and five sons including deceased Salman who was aged about 14 years and had studied upto class 4th.
3. That on 07.11.2012 at about 9:309:45 PM his son Salman had gone to the nearby shop at I1731, Jahangirpuri belonging to Gaurav for playing Video Games and he told him that he would return within 30 minutes after playing video games.
4. That his other son Gullu aged about 12 years had already gone to the shop of Gaurav for playing video games before Salman went there and at about 10:30 PM Gullu returned home but not Salman.
5. That he asked him (Gullu) about Salman on which Gullu informed him that Salman was with his friends Sonu and Sunil and they were playing video games and also informed that Sunil and Sonu told him to go to the house and Salman would come later on.
6. That he waited for his son Salman for about 2030 minutes but when he did not return to home, he (witness) went to the Video Game shop of Gaurav in search of his son Salman but at about 10:4511 PM he found the shop of Video Games closed.
7. That he searched for his son in the locality but he could not be traced after which he reached at St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 60 Ramgarh.
8. That Sonu and Sunil met him near a plot which was surrounded by boundary wall, as they were crossing the boundary wall of the plot on which he asked them about the whereabouts of Salman after which both of them (Sonu and Sunil) told him that Salman had already gone towards their house.
9. That thereafter he returned back to their house but Salman was not present in the house and also did not return home.
10. That he also informed his neighbors that his son Salman was missing while he himself searched for his son Salman for the entire night but could not trace him and hence at about 4 AM he returned home.
11. That in the morning time he again searched for his son Salman in the area but he could not be traced and at about 99:15 AM his neighbour Naim met him on which he (witness) also informed him (Naim) about Salman being missing and hence they both went in search of his son Salman.
12. That at about 1:00 PM Naim came to his house and informed him that the dead body of Salman was found in the vacant plot surrounded by boundary wall in the Ramgarh on which he along with Naim immediately reached there where police officials were already present.
13. That police officials had already shifted dead body of his son Salman to the BJRM Hospital Mortuary after which he along with Naim reached the hospital and identified the dead body of his son Salman in the hospital.
14. That police recorded his statement in detail about the facts and about the identification of dead body vide Ex.PW15/A and after postmortem dead body was handed over to them vide Ex.PW12/B.
15. That Sonu and Sunil met him near the same plot where the dead body of his son Salman was found and police also made inquiries from his son Gullu and recorded his statement.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 61
16. That police also arrested Sonu @ Murgi @ Fahim.
17. That on 11.11.2012 he went to Police Station Mahendra Park where he saw Sunil and he identified him as the person who met him near the plot surrounded by the boundary wall at Ramgarh on 07.11.2012 at about 1111:15 PM and told him along with Sonu that his son Salman had gone to the house.
He has correctly identified the accused Sonu and Sunil in the Court.
6 Mohd. Sharik @ He is the child witness aged about 1213 years and younger Gullu (PW16) brother of the deceased. He has deposed on the following aspects:
1. That he is studying in 9th class in Government School, KBlock, Jahangir Puri.
2. That he is residing in Jahangir Puri along with his parents, grandparents, uncleaunt, brothers and sisters.
3. That he has two sisters and five brothers including the deceased Salman who was the eldest.
4. That on 7.11.2012 at about 10:00 PM after taking his meals he went to play Video Games at I1731, Jahangir Puri and after some time his brother Salman, accused Sunil and Fahim @ Sonu (whom the witness has correctly identified in the Court) also came to the shop and started playing Video Games.
5. That at about 10:30 PM they all left the shop and his brother Salman asked him to leave whereas he (Salman) would come soon and Sunil also told him that he (Salman) was with him and he would leave him at the house.
6. That on this he returned back to his house.
7. That he had last seen his brother Salman alive in the company of accused Sonu and Sunil.
7. Gaurav Sharma This witness has deposed on the following aspects:
(PW17) 1. That he is residing at I524525, Jahangir Puri, Delhi and is running a shop of General Merchandise at I1731, Jahangirpuri.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 62
2. That in the year 2012 he had also kept five machines of video games in his shop out of which one was not working.
3. That on 07.11.2012 at about 10.00 PM Salman and his brother Gullu, and the accused Sonu and Sunil (whom the witness has correctly identified in the Court) came to his shop and played video games for some time between 10.20 to 10.30PM after which Sunil, Salman, Sonu and Gullu left the shop.
4. That the last he had seen Salman was with his brother Gullu, Sonu and Sunil while leaving his shop.
This witness has however denied the suggestion that he had told the police that Sunil had consumed alcohol and has voluntarily explained that he had told them that Sunil normally consumed alcohol at night and might have consumed the same (ho sakta hai, usne pee rakhi ho).
Medical Evidence:
8. Dr. Bhim Singh He is the Autopsy Surgeon who has proved that on 08.11.2012 (PW10) at about 1.00 PM he conducted postmortem examination on the body of Salman S/o Mohd. Salim aged about 14 years, and prepared the Postmortem Report which is Ex.PW10/A. He has proved that he found following external injuries on the body of deceased:
1. Multiple contusions with crecentric abrasions over front and both sides of neck varies from 0.8cm x 0.6 cm to 2.5cm x 1cm.
2. Irregular multiple contusions on the upper part of chest in an area of 16cm x 12cm.
He has also proved the following aspects:
1. That internal examination of Head and Neck revealed that brain was pale, effusion of blood was present in skin subcutaneous tissues of neck present below Injury Number 1 with fracture of hyoide bone of left side and contusions over thyroid and trachea was present, trachea was full of blood.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 63
2. That chest showed effusion of blood in chest wall with fracture of sternum at the level of second rib with fracture ribs second and third on left side of chest, plural cavity was full of blood about one litre, left lung was punctured lacerated, wound below fracture ribs.
3. That on examination of Abdomen all the organs were pale and stomach was full of semi digested food.
4. That the death was due to combine effect of coma, asphyxia and shock due to manual strangulation via hands and chest injury; all injuries were ante mortem, fresh and injury no.1 was caused by manual pressure via hands, Injury no. 2 by blunt force impact which injuries were sufficient to cause death in ordinary course of nature and time since death was 12 to 14 hours.
5. That after postmortem examination he handed over clothes of the deceased and blood sample in gauze piece in sealed condition with sample seal of department i.e. FMT BJRM HOSPITAL.
6. That on 28.12.2012 he received an application from SHO Inspector Darshan Singh of Police Station Mahendra Park alongwith one sealed packet duly sealed with the seal of DS for subsequent opinion regarding weapon of offence.
7. That on opening the seals he found one half piece of brick measuring 11cm x 7cm and after examination he opined that the injury no.2 mentioned in the Postmortem Report No. 1123/12 which is Ex.PW10/A could be possible by above examined brick, which subsequent opinion is Ex.PW10/B.
8. That after examination the brick piece again sealed with the seal of department and handed over to the police.
Forensic Evidence:
9. Indresh Kumar He is the Senior Scientific Officer (Biology) who has proved Mishra (PW13) the following aspects:
1. That on 03.01.2013 seven sealed parcels were received in his office and the same were assigned to him for St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 64 biological and serological examination.
2. That the seals on the parcels were intact and tallied with the sample seal.
3. That on opening the parcel no.1 he found with one shirt having stains which was marked by him as Ex.1a, one inner having dirty stains which was marked Ex.1b, one pant with belt having dirty stains which was marked as Ex.1c, one underwear having dirty stains which was marked as Ex.1d and one pair of dirty chappals which were marked Ex.1e.
4. That on opening parcel no.2 he found brown gauze cloth piece described as blood sample in gauze piece of deceased Salman and the same was marked as Ex2;
5. That on opening parcel no.3 he found one shirt which was marked Ex.3a, one T Shirt which was marked Ex.
3b, one pant which was marked Ex.3c, one underwear which was marked Ex.3d and one pair of shoes which were marked as Ex.3e.
6. That on opening parcel no.4 he found one shirt Ex.4a; one pant having light brown stains which was marked as Ex.4b.
7. That on opening parcel No.5 he found one gauze cloth piece having brown stains described as blood sample of Fahim@ Sonu @ Murgi which was marked Ex.5.
8. That on opening parcel no.6 he found half piece of brick described as weapon of offence which was marked Ex.6.
9. That on opening parcel no.7 he found light greenish brown gauze cloth pieces described as blood sample of accused Sunil @ Raghu which was marked Ex.7.
10. That he examined the above said exhibits and after examination of the exhibits he detected blood on Ex.2 (blood gauze of the deceased), Ex.4b (one pant having light brown stains), Ex.5 (blood gauze of accused Fahim @ Raghu) and Ex.7 (blood gauze of accused Sunil @ Raghu) and also detected human semen on Ex.1d (underwear) vide his detailed biological report which is Ex.PW13/A (two pages).
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 65
11. That he also examined the above said exhibits serologically and he detected Human Blood of Group 'AB' on Ex.2 and also detected Human Blood of 'B' Group on Ex.5 and he also detected Human Blood on Ex.4b and Ex.7.
12. That his detailed serological report in this regard is Ex.PW13/B and after examination of above said exhibits he resealed the remnants with the seal of IKM FSL DELHI.
10. Sh. A.K. He is the Deputy Director, DNA Unit, FSL Rohini, Delhi Srivastava (PW24) who has proved the following aspects:
1. That on 13.5.2014 four sealed parcels duly sealed with the seal of BD FSL DELHI were received in the office of Director for DNA Analysis.
2. That he examined all the parcels containing exhibits and submitted his conclusions as under:
i. Human semen was detected on exhibit 1d(underwear).
ii. Blood was detected on exhibits 2 (dark brown gauze cloth pieces of deceased Salman), exhibit 3 (few dark brown stains i.e. blood sample of accused J.C.L. Fahim @ Murgi) and exhibit 4 (blood sample of accused Sunil @ Raghu).
3. That on examination the alleles from the source of exhibit 3 (blood gauze of accused Fahim @ Murgi) were accounted in the alleles from the source of exhibit 1d (underwear of deceased Salman), however the alleles from the source of exhibit 4 (blood gauze of accused Sunil @ Raghu) were not accounted in the alleles from the source of exhibit 1d (underwear of deceased Salman).
Witness has proved that the DNA profiling (Minifiler & YSTR analysis) performed on the exhibits 1d, 2, 3 and 4 was sufficient to conclude that the single DNA profile from the source of exhibit 1d (underwear of deceased Salman) is matching with DNA profile from the source of exhibit 3 (blood gauze of accused Fahim @ Murgi), but the single St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 66 DNA profile from the source of exhibit 1d (underwear of deceased Salman) was not matching with DNA profile from the source of exhibit 4 (blood gauze of accused Sunil @ Raghu).
Nodal Officer
11. Pawan Singh He is the Nodal Officer from Idea Cellular Ltd. who has (PW8) proved the following aspects:
1. That mobile No. 8750023400 has been issued in the name of Smt. Pancham W/o Sh. Ram Parvesh, R/o D233, Swaroop Nagar, Delhi 42 vide Customer Application Form which is Ex.PW8/A and copy of election I card in support of ID proof is Ex.PW8/B.
2. That the Call Details for the period 15.10.2012 till 07.11.2012 are Ex.PW8/C (running into three pages) and the certificate under Section 65 B of Indian Evidence Act which is Ex.PW8/D. Police/ official witnesses:
12. SI Naresh Pal He is a formal witness being the Crime Team Incharge who (PW1) has proved having visited the spot of incident and having prepared the Crime Team Report which is Ex.PW1/A.
13. Ct. Parvinder He is also a formal witness being the Crime Team (PW2) Photographer who proved the photographs of scene of crime which is Ex.PW2/A1 to Ex.PW2/17 negatives of which photographs are collectively Ex.PW2/B.
14. WHC Sunaina He is a formal witness being the Duty Officer who has proved (PW3) having recorded the FIR No. 313/12 copy of which is Ex.PW3/A and her endorsement on rukka which is Ex.PW3/B.
15. SI Manohar Lal He is a formal witness being the Draftsman who has proved (PW4) having visited the scene of crime and having prepared the scaled site plan which is Ex.PW4/A.
16. HC Chander He is also a formal witness being the MHCM who has proved Bhan (PW5) entry in register no.19 vide S.No. 877 copy of which is Ex.PW5/A (two pages); entry at S. No.878 copy of which is Ex.PW5/B (two pages); entry at S. No. 879 copy of which is Ex.PW5/C (two pages); entry in register no. 21 vide RC St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 67 3/21/13 copy of which is Ex.PW5/D and receipt issued by FSL which is Ex.PW5/E; RC No. 34/21/13 copy of which is Ex.PW5/F and receipt issued by FSL which is Ex.PW5/G.
17. Ct. Mahipal Singh He is a formal witness who has proved that on 3.1.2013 he (PW6) took seven sealed pullandas from the MHCM vide RC No. 3/21/13 copy of which is Ex.PW5/D and RC No. 34/21/13 copy of which is Ex.PW5/F and deposited the same at FSL Rohini vide receipt Ex.PW5/E and Ex.PW5/G. He has also proved that on 12.05.2014 he received the exhibits duly sealed with the seal of IKM FSL DELHI from MHC(M) on the directions of the Investigating Officer and took the same to FSL Rohini again vide RC No. 34/21/14 which is Ex.PW6/A but due to some objections the exhibits could not be deposited in the office of FSL and therefore he returned to the Police Station and handed over the exhibits to the MHC(M).
18. HC Pramod He is a formal witness being the PCR Official who has proved (PW7) that on 8.11.2012 at 10:26:29 hrs he received a call from mobile No. 9871557012 to the effect that "Ramgarh Colony Bijli Ghar Ke Pass Big Apple Ki Dukan Ke Paas Ek Ladka Mara Pada Hai, Jiski age Lagbhag 1516 years hai". He has proved having filled up the PCR Form which is Ex.PW7/A.
19. Ct. Sukhbir Singh This witness has deposed on the following aspects:
(PW18) 1. That on 08.11.2012 at about 10.30AM after receiving a call of DD No. 14A on which he alongwith SI Anoop Yadav reached at a vacant plot A46, Ram Garh, Jahangir Puri, Delhi.
2. That there was a boundary wall of height of fivesix feet on the plot from four sides and many public persons were present there outside the boundary wall.
3. That they saw a dead body of a boy aged about 1415 years inside the plot in the bushes and the boy was lying with his face towards the ground and there were no clothes on his body except his underwear and pant which was pulled down till his knee on the legs.
4. That one grey coloured full sleeves winter cloth and one check shirt and one pair of slippers were also found near the dead body.
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 68
5. That SI Anoop called the Crime Team Officials who conducted the proceedings and photographer took photographs and the dead body was inspected by the Investigating Officer and there was grass (ghass phoos) and blood found on his face.
6. That there were blue injury marks on his neck and chest portion and meanwhile one person namely Naim reached there and identified the dead body as that of Salman S/o Salim.
7. That Beat HC Ravinder Nath also reached there.
8. That SI Anoop prepared the rukka and handed over the same to HC Ravinder Nath for registration of FIR and he was sent to Police Station Mahendra Park and thereafter on the direction of SI Anoop he (witness) took the dead body of Salman to the mortuary of BJRM Hospital.
9. That at about 12.301.00PM SI Anoop came at BJRM Hospital and postmortem was conducted on the body of Salman after which the dead body was handed over the relatives of the deceased vide Ex.PW12/B.
10. That after postmortem doctor handed over two packet in sealed condition with the seal of hospital with sample seal to him and he handed over the same to SI Anoop who seized the same vide memo Ex.PW18/A.
20. SI Anoop Singh He is the initial Investigating Officer of the case who has (PW19) deposed that:
1. That on 08.11.2012 at about 10.30AM he received DD No. 14A from the Duty Officer which is Ex.PW19/A.
2. That thereafter he alongwith Ct. Sukhbir reached at the place of incident i.e. a vacant plot A46, Ram Garh, Jahangir Puri, Delhi and there was a boundary wall of height of 56 feet on the plot from four sides.
3. That many public persons were present there outside the boundary wall and they saw a dead body of a male boy aged about 1415 years inside the plot in the bushes who was lying with his face towards the ground.
4. That there were no clothes on his body except his underwear and pant near his knee on the legs and one St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 69 grey coloured full sleeves under shirt, one check shirt of black colour and one pair of slippers were also found near the dead body.
5. That he called the Crime Team officials at the spot and in the meanwhile the SHO Inspector Darshan Singh also reached the spot.
6. That Crime Team official conducted the proceedings and photographer took photographs and they Inspected the dead body.
7. That after turning the dead body they found grass (ghass phoos) and blood was found on his face and there were blue injury marks on his neck and chest portion and meanwhile one person namely Naim came there who identified the dead body as of Salman S/o Salim.
8. That in the meanwhile the Beat HC Ravinder Nath also reached there and there were many public persons and hence due to law and order problem, he shifted the dead body of Salman with clothings and slippers to BJRM Hospital Mortuary through Ct. Sukhbir.
9. That he prepared the rukka which is Ex.PW19/B and the same was sent to the Police Station Mahendra Park through HC Ravinder Nath for the registration of FIR.
10. That SHO Inspector Darshan Singh remained at the spot and he went to the BJRM Hospital Mortuary and meanwhile Salim, father of deceased Salman also reached at the hospital alongwith Naim.
11. That he recorded the statement of Mohd. Salim vide Ex.PW15/A and statement of Naim vide Ex.PW11/A. According to the witness he also recorded statement of Shakeel Ahmed vide Ex.PW12/A and he also recorded statement of Sheikh Afsar Ali vide Ex.PW19/C.
12. That thereafter he filled the Inquest Form Ex.PW19/D, prepared the brief facts which is Ex.PW19/E and made request for postmortem vide Ex.PW19/F.
13. That on his request postmortem was conducted on the body of Salman and after postmortem the dead body was handed over the relatives of the deceased vide St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 70 Ex.PW12/B.
14. That after postmortem Ct. Sukhbir handed over two packets in sealed condition with the seal of hospital and sample seal to him and he seized the same vide memo Ex.PW18/A.
15. That in the meanwhile Inspector Darshan also reached at the hospital and recorded the statement of Naim and Salim after which they returned back to the spot and thereafter Investigating Officer Inspector Darshan Singh prepared the site plan at his instance which is Ex.PW19/G.
16. That thereafter they returned to the Police Station where he deposited all the seized articles in the Malkhana and the Investigating Officer recorded statement of Gaurav and also recorded his statement.
17. That on 09.11.2012 at about 8.30AM he alongwith Inspector Darshan Singh and HC Sudesh went to the I Block, Jahangir Puri where Salim father of deceased and Gullu brother of the deceased met them.
18. That at the instance of Salim they reached the house of the accused Sonu @ Fahim @ Murgi and at the instance of Salim, the accused was apprehended by them.
19. That Sunil was observed to be below 18 years on which the Investigating Officer Called the Juvenile Welfare Officer SI Kaptan Singh and in his presence, the accused Sonu was interrogated by the Investigating Officer and he confessed about the incident of murder of the deceased Salman.
20. That the accused was taken into custody vide apprehension memo Ex.PW19/H, his personal search was taken vide Ex.PW19/I and his disclosure statement was recorded vide Ex.PW19/J.
21. That at the instance of Fahim, his shirt of cream colour of white and brown linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were kept in a cloth pullanda and sealed with the seal of DS and seized vide seizure memo Ex.PW19/K. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 71
22. That he disclosed that he was wearing the said clothes at the time of incident and thereafter accused pointed out the place of incident vide pointing out memo Ex.PW19/L.
23. That accused Fahim @ Sonu produced one half piece of brick from place of incident from the bushes and disclosed that he had caused injuries to the deceased Salman by said brick piece after which the said brick was sealed in a cloth pullanda by the Investigating Officer with the seal of DS and seized the same vide memo Ex.PW19/M.
24. That thereafter Fahim @ Sonu was handed over to HC Sudesh for medical examination at BJRM Hospital and thereafter they went to the Police Station where they received information from HC Sudesh that medical examination was completed and thereafter they reached at JJ Board, Delhi, Delhi Gate where Fahim @ Sonu was produced and was sent to the observation home.
25. That thereafter they returned to the Police Station where the Investigating Officer recorded his statement.
26. That on 11.11.2012 he again joined the investigation with Inspector Darshan Singh and HC Sudesh and they all reached near Kushal Cinema, Jahangir Puri at about 9.4510.00PM where at the instance of secret informer they apprehended accused Sunil.
27. That one mobile phone make Wing with SIM was recovered from his possession which mobile was sealed in a cloth pullanda by the Investigating Officer with the seal of DS and seized the same vide memo Ex.PW19/N.
28. That the accused Sunil was interrogated by the Investigating Officer and he confessed about his involvement in the murder of deceased Salman after which the accused Sunil was arrested vide memo Ex.PW19/O and his personal search was taken vide Ex.PW19/P.
29. That thereafter they reached at the Police Station where Salim was present and he identified the accused St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 72 Sunil.
30. That the wearing clothes of accused Sunil i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were taken into possession by the Investigating Officer and sealed the same in a cloth pullanda with the seal of DS and seized the same vide memo Ex.PW19/Q.
31. That the Investigating Officer recorded disclosure statement of Sunil vide Ex.PW19/R after which the accused Sunil also pointed out the place of incident vide pointing out memo Ex.PW19/S and accused Sunil was sent to BJRM Hospital for Medical Examination through HC Sudesh and thereafter they returned back to the Police Station and the Investigating Officer recorded his statement.
32. That 23.04.2014 the SHO handed over to him the DNA Finger Printing Result in respect of the present case and directed him to file the same in the form of supplementary charge sheet.
33. That on 25.04.2014 he filed the FSL/DNA Finger Printing Result before Ld. MM in the form of supplementary charge sheet.
34. That in compliance to order dated 09.05.2014 he directed the MHC(M) to get the exhibits deposited in the FSL and on 13.05.2014 the exhibits were got deposited in the FSL office by the MHC(M).
35. That on the directions of SHO dated 31.05.2014 he got the FSL/Finger Printing result submitted before Ld. MM on 02.06.2014.
The witness has correctly identified the accused Sunil and Sonu @ Fahim in the Court. He has also identified the case property i.e. one dual SIM mobile phone make Wing bearing IMEI No. 357430045604186 and IMEI No. 357430045704184 with SIM of idea bearing SIM of mobile number 8750023400 as the same which was recovered from the possession of accused Sunil, which mobile is Ex.P1; one shirt, one T shirt, one pant, one underwear and one pair of Shoes as the same as recovered from the possession of the accused Sunil which are collectively Ex.P2; one shirt and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 73 one pant as the same as recovered at the instance of accused Fahim @ Sonu which shirt and pant are collectively Ex.P3; one half brick as the same which was recovered at the instance of Fahim @ Sonu which brick piece is Ex.P4; one shirt, one inner, one pant, one underwear and one pair of chappals as the same which was belonging to the deceased and found with him at the spot, which articles are collectively Ex.P5.
21. HC Sudesh This witness has deposed on the following aspects:
Kumar (PW20) 1. That on 09.11.2012 he had joined the investigations of the present case along with SHO and SI Anoop.
2. That they all went to I1152, Jahangirpuri where on the pointing out of Mohd. Salim and Gullu the accused Sonu @ Murgi was apprehended.
3. That Investigating Officer Interrogated the accused and since he appeared to be a juvenile and also gave his age as less than 18 years, the Juvenile Officer SI Kaptan was called by the Investigating Officer and Sonu was handed over to him who interrogated the accused.
4. That the clothes which Sonu was wearing were got changed at his house and the same were converted into pullanda and sealed with the seal of DS and thereafter they were taken into possession by Investigating Officer vide memo Ex.PW19/K.
5. That the accused Sonu was apprehended vide apprehension memo Ex.PW19/H, his personal search was conducted vide memo Ex.PW19/I and the statement of Gullu and Mohd. Salim were recorded and they were relieved after which the disclosure statement of Sonu was recorded vide Ex.PW19/J.
6. That the accused Sonu pointed out the place of incident vide Ex.PW19/L after which he got recovered a half brick as the one with which he inflicted injuries on the deceased.
7. That the Investigating Officer converted the same into a pullanda and sealed the same with the seal of DS and thereafter seized the same vide memo Ex.PW19/M. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 74
8. That thereafter Sonu was taken to BJRM hospital where his medical examination was got conducted and the doctor handed over blood sample in a sealed pullanda and a sample seal to him which he handed over to the Investigating Officer who seized the same vide memo Ex.PW20/A.
9. That the accused Sonu was then produced before the JJB at Delhi Gate and he was sent to Observation Board.
10. That on 11.11.2012 he again joined the investigations in the present case along with the Investigating Officer who had received a secret information regarding the presence of accused Sunil near Kushal Cinema, G Block, Jahangirpuri.
11. That on receipt of this information he along with SI Anoop, Inspector Darshan Singh reached Kaushal Cinema where the secret informer pointed out towards a boy standing in front of Kushal Cinema on which he was apprehended and on interrogation, his name was disclosed as Sunil @ Raghu.
12. That Investigating Officer interrogated him and arrested him vide arrest memo Ex.PW19/O, his personal search was conducted vide memo Ex.PW19/P and the disclosure statement of the accused was also recorded vide Ex.PW19/R.
13. That the accused then led them to the place of incident where the Investigating Officer prepared the pointing out memo which is Ex.PW19/S, after which the accused was taken to the BJRM Hospital for his medical examination.
14. That doctor handed over the blood sample of the accused duly sealed with the seal of the hospital along with the sample seal to him and he handed over the same to the Investigating Officer who seized the same vide seizure memo Ex.PW20/B after which the accused was brought to the Police Station and put in the lock up and his statement was recorded thereafter.
15. That Sonu @ Fahim produced his shirt of cream color with white and brown linings and one cream pant from St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 75 his house and disclosed that he was wearing the said clothes at the time of incident and thereafter Investigating Officer sealed the same and seized the same.
16. That one mobile phone of Wing company with a SIM was recovered from the possession of accused Sunil on 11.11.2012 and sealed by the Investigating Officer in the cloth pullanda with the seal of DS and seized the same vide seizure memo Ex.PW19/N.
17. That on 11.11.2012 accused Sunil was brought to the Police Station and his coffee colored shirt and coffee colored pant and one underwear and his one pair of shoes and one Tshirt of round neck were taken in possession by the Investigating Officer and kept the same in a cloth pullanda and sealed the same with the seal of DS and seized the same vide seizure memo Ex.PW19/Q. The witness has correctly identified the accused Sunil and Sonu in the Court.
22. Inspector He is the Investigating Officer of the present case who has Darshan Singh deposed as under:
(PW21) 1. That on 08.11.2012 he was posted as SHO of Police Station Mahendra Park and on that day at about 10.30 AM information was received about the dead body lying at the Ram Garh, Jahangir Puri and DD No. 14A was recorded which was marked to SI Anoop.
2. That at about 10.45AM he also reached at plot No. A46, Ram Garh , Jahangir Puri, Delhi where SI Anoop, Ct. Sukhbir, HC Ravinder Nath met him there and many public persons were also present there.
3. That he saw a dead body of a boy about 1415 years old inside the plot in the bushes lying with his face towards the ground and there were no clothes on his body except his underwear and pant near the knee on his legs.
4. That one grey coloured full sleeves under shirt and one check shirt of black colour were found near the dead body and one pair of slippers were also found near the dead body.
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 76
5. That they called the Crime Team officials at the spot who conducted the proceedings and photographer took photographs.
6. That they Inspected the dead body and after turning the dead body they found grass (ghass phoos) and blood was found on his face.
7. That there were blue injury marks on the neck and chest portion and meanwhile one person namely Naim came there who identified the dead body as of Salman S/o Salim.
8. That there were many public persons there and due to law and order problem, he directed SI Anoop to shift the dead body of Salman with clothings and slippers to BJRM Hospital Mortuary through Ct. Sukhbir.
9. That SI Anoop prepared the rukka which was sent to the Police Station Mahendra Park through HC Ravinder Nath for the registration of FIR whereas he himself remained at the spot and SI Anoop went to the BJRM Hospital Mortuary.
10. That he also reached at the hospital at about 2.00PM and recorded the statement of Naim and Salim and SI Anoop handed over all the prepared documents to him and thereafter they returned back to the spot and prepared the site plan at the instance of SI Anoop which is Ex.PW19/G.
11. That thereafter they returned to the Police Station and on his direction SI Anoop deposited all the seized articles in the Malkhana and he recorded statement of Gaurav and SI Anoop and other police officials at the Police Station.
12. That he searched for the accused but the accused could not be arrested.
13. That on 09.11.2012 at about 8.30AM he alongwith SI Anoop, HC Sudesh went to the IBlock, Jahangir Puri where Salim father of deceased and Gullu brother of the deceased met them and he recorded statement of Gullu.
14. That at the instance of Salim they reached the house of the accused Sonu @ Fahim @ Murgi and at the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 77 instance of Salim, the accused Sonu was apprehended.
15. That the accused was primafacie observed to be below 18 years on which he called the Juvenile Welfare Officer SI Kaptan Singh and in his presence, Sonu was interrogated during which he confessed about the incident of murder of the deceased Salman.
16. That the accused Sonu was taken into custody vide apprehension memo Ex.PW19/H on which the mother of accused namely Smt. Anisa put her thumb impression.
17. That the personal search of the accused Sunil was taken vide Ex.PW19/I and his disclosure statement was recorded vide Ex.PW19/J.
18. That at the instance of accused Fahim, his shirt of cream colour of white and brown linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were kept in a cloth pullanda and sealed with the seal of DS and seized vide seizure memo Ex.PW19/K.
19. That the accused disclosed that he was wearing the said clothes at the time of incident and thereafter accused pointed out the place of incident vide pointing out memo Ex.PW19/L.
20. That accused Fahim @ Sonu produced one half piece of brick from place of incident from the bushes and disclosed that he had caused injuries to the deceased Salman with the said brick piece on which the said brick was sealed in a cloth pullanda with the seal of DS and taken into possession vide memo Ex.PW19/M.
21. That thereafter they took the accused Sonu @ Fahim to BJRM Hospital where his medical examination was conducted after which doctor handed over blood sample of the accused Sonu duly sealed with the seal of hospital with sample seal to them and he seized the same vide memo Ex.PW20/A.
22. That thereafter Sonu @ Fahim was produced before Juvenile Justice Board and was sent to Observation Home and thereafter they returned to the Police Station where he deposited the seized articles in the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 78 Malkhana and recorded the statements of witnesses.
23. That on 11.11.2012 he alognwith SI Anoop and HC Sudesh reached near Kushal Cinema, Jahangir Puri at about 9.00PM where at the instance of secret informer they apprehended accused Sunil and one mobile phone of make Wing with SIM was recovered from his possession.
24. That the said mobile was sealed in a jar with the help of cloth and sealed the same with the seal of DS and seized vide memo Ex.PW19/N.
25. That the accused was interrogated by him during which he confessed about his involvement in the murder of deceased Salman.
26. That accused Sunil was arrested vide memo Ex.PW19/O and his personal search was taken vide Ex.PW19/P after which they reached at Police Station where Salim was present who identified the accused Sunil.
27. That the clothes worn by the accused Sunil i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were taken into possession by him and he sealed the same in a cloth pullanda with the seal of DS and seized the same vide memo Ex.PW19/Q.
28. That he recorded the disclosure statement of accused Sunil vide Ex.PW19/R after which the accused Sunil pointed out the place of incident vide pointing out memo Ex.PW19/S and the accused Sunil was sent to BJRM Hospital for medical Examination through HC Sudesh and they returned back to the Police Station.
29. That HC Sudesh returned back to the Police Station and produced blood sample of accused Sunil to him in sealed condition with the seal of Hospital with sample seal to him on which he seized the same vide seizure memo Ex.PW20/B.
30. That he deposited the seized articles in the Malkhana and recorded statement of witnesses and on the next day the accused was produced before the Court and was sent to Judicial Custody.
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 79
31. That he collected the birth certification of accused Sonu @ Fahim and got the same verified.
32. That on 27.11.2012 SI Manohar Lal took the rough notes and measurement of the spot and prepared the scaled site plan.
33. That he collected the Crime Team Report, Photographs, Postmortem Report with inquest documents and the PCR Form during his investigations.
34. That on 28.12.2012 he took the pullanda of the brick to the Autopsy Surgeon for subsequent opinion vide his application Ex.PW21/A and collected the subsequent opinion which is Ex.PW10/B.
35. That during investigation Fahim @ Sonu was declared more than 18 years by the Juvenile Justice Board.
36. That on 03.01.2013 exhibits of this case were sent to the FSL, Rohini through Ct. Mahipal and he recorded statement of witness and after completion of investigation he submitted charge sheet against accused Sunil and Fahim @ Sonu.
23. Inspector This witness has proved that on 27.04.2013 she collected the Lakshmi Dubey FSL results from the FSL Rohini which are Ex.PW13/A and (PW22) Ex.PW13/B with forwarding letter and thereafter she filed the supplementary charge sheet against the accused persons Sunil and Fahim @ Sonu.
24. HC Mukesh This witness has proved the following aspects:
Kumar (PW23) 1. That on 13.05.2014 he was posted as MHC(M) at police station Mahendra Park and on that day Ct. Vikas took four sealed parcels duly sealed with the seal of FSL vide RC No. 36/21/14 dated 13.05.2014 copy of which is Ex.PW23/A.
2. That on 30.05.2014 Ct. Vikas had brought the FSL result duly sealed with the seal of FSL and handed over the same to him vide RC No. 36/21/14 and no tampering was done while the exhibits and result remained in his possession.
3. That the entry in this regard which is Ex.PW23/B. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 80 (78) Now coming to the microscopic evaluation of evidence against the accused Sunil @ Raghu and Fahim @ Raju @ Murgi.
Medical Evidence:
(79) The case of the prosecution is that both the accused i.e. Sunil @ Rahu and Fahim @ Sonu @ Murgi as well as the deceased Salman were good friends and on the date of incident the accused had committed the murder of deceased Salman by manually strangulating him and also by giving repeated brick blows on his chest. In this regard the prosecution has placed its reliance on the testimony of Autopsy Surgeon Dr. Bhim Singh and the Postmortem report prepared by him.
(80) I have gone through the testimony of Dr. Bhim Singh (PW10) who has proved that on 08.11.2012 at about 1.00 PM he conducted postmortem examination on the body of Salman S/o Mohd. Salim aged about 14 years, male, on the request of SI Anoop Yadav of Police Station Mahendra Park, Delhi with alleged history of found on 08.11.2012 at about 10.30AM. Witness has further proved that on examination he found following external injuries on the body of deceased:
1. Multiple contusions with crecentric abrasions over front and both sides of neck varies from 0.8cm x 0.6 cm to 2.5cm x 1cm.
2. Irregular multiple contusions on the upper part of chest in an area of 16cm x 12cm.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 81
(81) He has proved that on internal examination of Head and Neck brain was found to be pale; there was effusion of blood was present in skin subcutaneous tissues of neck present below Injury Number1 with fracture of hyoide bone of left side and contusions over thyroid and trachea was present, trachea was full of blood; Chest shows effusion of blood in chest wall with fracture of sternum at the level of second rib with fracture ribs second and third on left side of chest. The Plural Cavity was full of blood about one litre, left lung was punctured lacerated, wound was present below fracture ribs; Abdomen all the organs were pale and stomach was full of semi digested food. The witness has proved having opined that the death was due to combined effect of coma, asphyxia and shock due to manual strangulation via hands and chest injury; all injuries were ante mortem, fresh and injury no.1 was caused by manual pressure via hands, Injury no. 2 by blunt force impact which injuries were sufficient to cause death in ordinary course of nature and time since death was 12 to 14 hours. He has proved the detailed Postmortem Examination Report which is Ex.PW10/A and that after the postmortem examination he handed over clothes of the deceased and blood sample in gauze piece in sealed condition with sample seal of department.
(82) The Autopsy Surgeon has further proved that on 28.12.2012 he received an application from SHO Inspector Darshan Singh of Police Station Mahendra Park alongwith one sealed packet sealed with the seal of DS for St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 82 subsequent opinion regarding weapon of offence. He has also proved that on opening the seals he found one half piece of brick measuring 11cm x 7cm and after examination he opined that the injury no.2 mentioned in the Postmortem Report Ex.PW10/A could be possible by above examined brick, which subsequent opinion is Ex.PW10/B. The Ld. Defence Counsel has not been able to controvert the Postmortem Report Ex.PW10/A and the subsequent opinion Ex.PW10/B. (83) It is evident from the Postmortem Report Ex.PW10/A that the postmortem examination of the deceased was conducted on 8.11.2012 at 1:00 PM and the time of the death has been opined by the Autopsy Surgeon as 12 - 14 Hours meaning thereby that the death of the deceased Salman had taken place on the intervening night of 78.11.2012 between 10:00 PM to 12:00 Midnight. This is compatible to the Last Seen Evidence on record in the form of testimonies of Mohd. Salim (PW15), Mohd. Sharik @ Gullu (PW16) and Gaurav Sharma (PW17) who had last seen the deceased alive leaving the shop of Video Games along with accused Sunil and Fahim between 11:0011:15 PM in the company of the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi and confirms the prosecution version.
(84) The medical evidence also confirms the status of the injuries present on the dead body as reflected in the photographs taken by the Crime Team photographer Ct. Parvinder (PW2) which photographs are Ex.PW2/A3, Ex.PW2/A4, Ex.PW2/A5, Ex.PW2/A6, Ex.PW2/A7 and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 83 Ex.PW2/A8 and the photograph of the dead body i.e. Ex.PW2/A3 shows the tongue protruding out confirms strangulation as opined by the Autopsy Surgeon.
(85) It is writ large that the body of the deceased child was found in a naked condition with his pant pulled down under the knee with his clothes were lying near the body which is only possible when there is an attempt to commit a sexual assault upon the male child against the order of nature and this aspect stands confirmed from the Forensic Evidence which confirms the DNA of the accused Fahim @ Sonu @ Murgi on the underwear of the deceased child Salman.
(86) The Medical Evidence on record establishes that the nature of injuries present on the dead body of the deceased and also confirms that it was not the work of a single person and more than one person were involved in the same. It also confirms that the death of the deceased was due to combined effect of coma, asphyxia and shock due to manual strangulation via hands and chest injury which injuries were sufficient to cause death in ordinary course of nature and is compatible to the prosecution version of Homicidal Death of the child caused by second party. Forensic Evidence:
(87) The case of the prosecution that the dead body of the deceased child Salman was discovered in the morning from the vacant plot bearing No. A46, Ramgarh, Jahangir Puri with boundary walls on all the sides which plot St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 84 is in the possession of Ram Gopal Sisodia (though the title of the plot is being disputed but being a non relevant fact to the proceedings before this Court which are relating to unnatural death of a child and discovery of his body in the plot and the title of the plot where this dead body was discovered is not relevant). The case of the prosecution is that one grey coloured full sleeves winter cloth, one check shirt and one pair of slippers were also found near the dead body which were lifted by the Investigating Officer and seized. Further, after the postmortem examination the Autopsy Surgeon had handed over the pants and underwear of the deceased and his blood sample in a sealed condition to the Investigating Officer. After the arrest of the accused Sunil @ Raghu and Fahim @ Raju their blood samples were also obtained and the clothes which they were wearing at the time of the incident were also taken into possession. All these above exhibits were then sent to FSL Rohini and were subjected to Biological/ Serological and DNA Fingerprinting Examination. In this regard the prosecution has placed its reliance on the testimonies of Sh. Indresh Kumar Mishra (PW13) and Sh. A.K. Srivastava (PW24) and the reports prepared by them.
(88) Coming first to the testimony of Sh. Indresh Kumar Mishra (PW13), he has proved that on 03.01.2013 seven sealed parcels were received in his office which were assigned to him for biological and serological examination. On opening the parcel no.1 he found one shirt having stains which was marked by him as Ex.1a, one inner having dirty stains which was marked Ex.1b, one pant with belt having dirty stains which was marked as St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 85 Ex.1c, one underwear having dirty stains which was marked as Ex.1d and one pair of dirty chappals which were marked Ex.1e; on opening parcel no.2 he found brown gauze cloth piece described as blood sample in gauze piece of deceased Salman and the same was marked as Ex.2; on opening parcel no.3 he found one shirt which was marked Ex.3a, one T Shirt which was marked Ex.3b, one pant which was marked Ex.3c, one underwear which was marked Ex.3d and one pair of shoes which were marked as Ex.3e; on opening parcel no.4 he found one shirt Ex.4a; one pant having light brown stains which was marked as Ex.4b; on opening parcel No.5 he found one gauze cloth piece having brown stains described as blood sample of Fahim @ Sonu @ Murgi which was marked Ex.5; on opening parcel no.6 he found half piece of brick described as weapon of offence which was marked Ex.6 and on opening parcel no.7 he found light greenish brown gauze cloth pieces described as blood sample of accused Sunil @ Raghu which was marked Ex.7. He has proved that he examined the above said exhibits and after examination of the exhibits he detected blood on Ex.2 (blood gauze of the deceased), Ex.4b (one pant having light brown stains), Ex.5 (blood gauze of accused Fahim @ Raghu) and Ex.7 (blood gauze of accused Sunil @ Raghu) and also detected human semen on Ex.1d (underwear) vide his detailed biological report which is Ex.PW13/A (two pages). Witness has further proved that he also examined the above said exhibits serologically and he detected Human Blood of Group St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 86 'AB' on Ex.2 (blood gauze of the deceased) and also detected Human Blood of 'B' Group on Ex.5 (blood gauze of accused Fahim @ Raghu) and he also detected Human Blood on Ex.4b (one pant having light brown stains) and Ex.
7 (blood gauze of accused Sunil @ Raghu). Witness has proved his detailed serological report which is Ex.PW13/B. (89) The above Biological/ Serological Reports establishes the presence of Human Blood on the pants of the accused Fahim @ Sonu @ Murgi which he was wearing at the time of the incident and also the presence of Human Semen on the underwear of the deceased child Salman (Ex.1d). (90) To whom the above semen stains so present on the underwear of the deceased child could not be accounted for, due to which reason the samples were sent to FSL Rohini for DNA Examination/ Analysis and it is the DNA Fingerprinting Report which conclusively connected the accused Fahim @ Sonu @ Murgi with this offence (i.e. attempt to commit carnal intercourse against the order of nature).
(91) Sh. A.K. Srivastava (PW24), Deputy Director, DNA Unit, FSL Rohini, Delhi has proved that on 13.5.2014 four sealed parcels duly sealed with the seal of BD FSL DELHI were received in the office of Director for DNA Analysis and he examined all the parcels containing exhibits. He has further proved that the source of Ex.1d (underwear of the deceased), Ex.2 (dark brown gauze cloth pieces of deceased Salman), Ex.3 (few dark brown stains i.e. blood sample of accused Fahim @ Murgi) and Ex.4 (blood sample St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 87 of accused Sunil @ Raghu) were subjected to DNA isolation and DNA was isolated from the source of exhibits 1d, 2, 3 and 4. The witness has also proved that DNA profile for the exhibits 1d, 2, 3 and 4 was then prepared by using Amp FLSTR Minifiler PCR Amplification kit and Y filer PCR Amplification kit and STR analysis. He has proved that the data was then analyzed by using Gene Mapper IDX software, however Y filer on the exhibit 4 could not be generated due to inhibitors. The witness has further proved that on examination the alleles from the source of exhibit 3 (blood gauze of accused Fahim @ Murgi) were accounted in the alleles from the source of exhibit 1d (underwear of deceased Salman), however the alleles from the source of exhibit 4 (blood gauze of accused Sunil @ Raghu) were not accounted in the alleles from the source of exhibit 1d (underwear of deceased Salman). He has also proved having concluded that the DNA profiling (Minifiler & YSTR analysis) performed on the exhibits 1d, 2, 3 and 4 were sufficient to conclude that the single DNA profile from the source of exhibit 1d (underwear of deceased Salman) was matching with DNA profile from the source of exhibit 3 (blood gauze of accused Fahim @ Murgi), however the single DNA profile from the source of exhibit 1d (underwear of deceased Salman) was not matching with DNA profile from the source of exhibit 4 (blood gauze of accused Sunil @ Raghu). He has proved his detailed report in this regard which is Ex.PW24/A (running into four pages including the Genotype Analysis).
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 88 (92) It is this DNA Fingerprinting Report duly proved by the FSL Expert which conclusively establishes the presence of DNA of accused Fahim @ Sonu @ Murgi on the underwear of the deceased child Salman and conclusively connects the accused with the alleged offence. Fahim on his part has not been able to offer any explanation regarding the presence of these semen stains on the underwear of the child. It also confirms the prosecution version to the effect that the motive of the offence was to commit carnal intercourse against the order of nature with the deceased child Salman which the child resisted on which the child was killed by first giving blows to him on his chest with the half brick lying at the spot and then by manually strangulating him.
Electronic Evidence:
(93) The case of the prosecution is that at the time of his arrest the accused Sunil @ Rahu was found in possession of one dual SIM mobile phone make Wing bearing IMEI No. 357430045604186 and IMEI No. 357430045704184 with SIM of idea bearing SIM of mobile number 8750023400 which was seized vide memo Ex.PW19/N. The case of the prosecution is that the accused Sunil @ Raghu was using the said mobile number at the time of his arrest and the location chart establish his presence at the spot at the time of incident. In this regard the prosecution has placed its reliance on the testimony of Pawan Singh (PW8), the Nodal Officer from Idea St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 89 Cellular Ltd. and the records proved by him.
(94) Sh. Pawan Singh (PW8), Nodal Officer from Idea Cellular Ltd.
has proved that mobile No. 8750023400 has been issued in the name of Smt. Pancham W/o Sh. Ram Parvesh, R/o D233, Swaroop Nagar, Delhi 42 vide Customer Application Form Ex.PW8/A and copy of election I card in support of ID proof is Ex.PW8/B. Witness has further proved the Call Details for the period 15.10.2012 till 07.11.2012 which are Ex.PW8/C (running into three pages) and the certificate under Section 65 B of Indian Evidence Act which is Ex.PW8/D. I have carefully analysed the Call Details Record of the above mobile phone and it is evident that on the date of incident i.e. 7.11.2012 at 20:01 Hours (8:01 PM) the user of the mobile phone i.e. the accused Sunil received an SMS from No. 4944236313233400 and at that time the location of the accused was near the spot of incident i.e. the Tower installed at Sanjay Enclave which is 100150 meters away from the spot of incident. (95) A dispute has been raised by the Ld. Defence Counsels on the aspect of user of mobile phone by the accused Sunil @ Raghu. It is submitted that the mobile phone bearing No. 8750023400 does not belong to the accused Sunil @ Raghu and has been planted upon him only to work out the present case.
(96) I have considered the rival contentions and I may observe that when the aforesaid material was put to the accused in his statement under Section 313 Cr.P.C. he has simply denied the same. In case if the mobile St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 90 phone was not recovered from the possession of the accused then it became all the more necessary for the accused to explain how the said mobile phone was recovered from his possession in his personal search. It stands established from the electronic evidence on record that the accused Sunil @ Raghu was using the mobile phone bearing No. 8750023400 and the location of mobile phone was at Sanjay Enclave which is about 100150 meters from the scene of crime and the defence has not been able to successfully demolish the case put forth by the prosecution as aforesaid.
(97) In view of the above I hereby hold that the electronic evidence lends independent confirmation to the version of the prosecution and establishes the location of the user (i.e. accused Sunil @ Raghu) at the time of the incident in the same area where the crime was committed. Common Intention/ Motive of the Crime:
(98) The case of the prosecution is that the accused Sunil @ Raghu and Fahim @ Raju were good friends of the deceased child Salman and were together in a video game shop belonging to Gaurav Sharma and thereafter both the accused took the child Salman to an isolated plot where they in furtherance of their common intention tried to commit commit carnal intercourse against the order of nature with Salman but on account of the resistance offered by Salman they gave him a beating and hit him with a brick and then manually strangulated him.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 91
(99) However, before coming to the merits of the allegations, I may observe that the Motive has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(100) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumes significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
(101) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 92 consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(102) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(103) In so far as the aspect of common intention is concerned, I may observe that Section 34 Indian Penal Code has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 93 appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime.
The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 94 meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793 and reference in this regard is also being made to the case of decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna.
(104) Applying the settled principles of law to the facts of the present case, I may observe that the last seen evidence conclusively connects the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi to the offence and establishes that they were the persons who were last seen in the company of the deceased child when they were taking the child with them and were seen near the boundary wall of the plot at about 11:15 PM where the dead body of the child was discovered next day, together with the medical and forensic evidence and the photographs taken by the Crime Team as discussed herein above confirm that the motive was to commit carnal intercourse against the order of nature with the deceased child and on account of the resistance offered by Salman they gave him a beating and brutally hit him with a brick St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 95 and then manually strangulated him.
(105) The nature of injuries confirm that it was not the work of a single person and more than one person was involved in the same. Further, the fact that at the time when the dead body was discovered it was lying naked with the clothes lying next to the dead body and the pant and underwear of the deceased was near the knee, coupled with the fact that the Biological Report confirming the existence of semen stains on the underwear of the deceased and the DNA Fingerprinting Report confirming the presence of DNA of accused Fahim @ Sonu @ Murgi on the underwear of the deceased child Salman, conclusively establishes that the motive of crime was to commit carnal intercourse against the order of nature with the deceased child Salman and on account of the stiff resistance offered by the child Salman, he was killed.
(106) I may note that the medical evidence does not prove any any sexual act has been committed upon the child. However, the Forensic Evidence in the form of DNA Fingerprinting Report establishes that the DNA of accused Fahim @ Sonu was present on the underwear of the deceased Salman thereby confirming that it was only an attempt to commit carnal intercourse with the child and on account of the resistance offered by the child he was done to death by the accused fearing exposure. Both the accused and the deceased were seen together by Gaurav Sharma and by Mohd. Sharik leaving the video game shop and when the child Salman did not return home, his father Mohd. Salim started searching him and even crossed the vacant plot St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 96 at Ramgarh at about 11:00 PM where he met both the accused i.e. Sunil @ Raghu Fahim @ Sonu. When Mohd. Salim asked them about his son Salman they mislead him by saying that Salman had already gone. I may observe that the child was not so small. He was aged about 14 years and was in a position to offer an effective resistance to the accused who are also young boys. Had it been the job of one person alone, the deceased could have successfully warded off the attempt The fact that the deceased was manually strangulated coupled with the fact that there was a blunt force impact on the chest resulting into fracture of ribs, establishes that it was not the work of a single person and more than one person was involved.
(107) In view of the above and also in view of the fact that the deceased child Salman was last seen alive in the company of the accused Sunil @ Raghu and Fahim @ Sonu, I hold that there is ample material on record to prove that both the accused had acted in common consortium and had shared common intention to commit carnal intercourse against the order of nature with the child Salman. The first attempt to commit carnal intercourse against the order of nature with Salman was made by the accused Fahim @ Sonu @ Murgi and the accused Sunil @ Raghu in furtherance of common intention aided and assisted in the act (attempt to commit carnal intercourse against the order of nature with the child Salman) which aspect also stands established from the fact that the clothes of the deceased were lying near the dead body and the pants of the deceased child were pulled below the knees (also apparent from the photographs).
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 97 Ocular Evidence/ Last Seen:
(108) Ocular evidence/eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. The eye witness account requires a careful independent assessment and evaluation for its credibility, it should not be adversely pre judged on the basis of other evidence. The ocular evidence has to be tested for its inherent consistency and inherent probability of the story, consistency of the account given by one witness with that given by the other witness held to be creditworthy, consistency with the undisputed facts, the 'credit' of the witnesses who performed in the witnessbox, their power of observation and it is only then that the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.
(109) Unfortunately, in the present case there is no direct eye witness count and the entire case of the prosecution is based upon circumstantial and last seen evidence. The case of the prosecution is that both the accused Sunil @ Rahu and Fahim @ Raju @ Murgi were good friends of the deceased child Salman and on the date of incident i.e. 7.11.2012 at about 10:00 PM all three of them i.e. accused Sunil @ Raghu, Fahim @ Raju and the deceased child Salman went to the shop of Gaurav Sharma for playing video games and the deceased Salman was last seen alive in the company of the accused by Gullu (brother of the deceased) who had also gone there with him to play video games and by the owner of the video game shop namely Gaurav Sharma when St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 98 all of them had left the shop of Gaurav Sharma together. Thereafter when the child Salman did not return to home, his father namely Salim started searching for him and also reached the Video Game shop of Gaurav at about 10:45 PM but found the shop of Video Games closed. Thereafter he searched for his son in the locality but he could not be traced after which at about 11:0011:15 PM Mohd. Salim reached the vacant plot at Ramgarh which was surrounded by boundary wall, where both the accused i.e. Sunil @ Raghu and Fahim @ Raju were crossing the boundary wall of the plot on which Salim asked them about the whereabouts of Salman and both the accused told that Salman had already gone towards his house. Thereafter Salim continued to wait for his child Salman whole the night but he did not return and it was on the next day morning that the dead body of Salman was discovered in the same vacant plot. In this regard the prosecution is placing its reliance on the testimonies of Naim (PW11) the neighour of the deceased, Mohd. Salim (PW15) father of the deceased, Mohd. Sharik @ Gullu (PW16) younger brother of the deceased and Gaurav Sharma (PW17) owner of the video game shop.
(110) Before coming to the merits of the allegations on merits, I may observe that the 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 99 corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(111) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].
(112) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that: "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."
(113) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 100 under: "....... It is not necessary to multiply with authorities. The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218. ..."
(114) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 101 accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(115) Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused is trustworthy or not. If yes, the effect thereto.
(116) Coming first to the testimony of Ajay (PW9) who is the person who had made a call on 100 number regarding the discovery of a dead body.
He has proved in the Court that on 08.11.2012 at about 10 AM he was going to Ramgarh behind the Big Apple when one boy informed him that one person was lying dead in the plot within four boundary walls, on which he made a call at 100 number from his mobile No. 9871557012 which call has been confirmed from PCR Form Ex.PW7/A duly proved by HC Pramod (PW7). Further, Sh. Ram Gopal Sisodia (PW14) has proved that the dead body of the child was found in Plot No. A46, Ramgarh, Jahangirpuri, Delhi which is a vacant plot with a boundary wall. I may observe that there appears to be a St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 102 civil dispute on the title of this plot but this fact is not relevant to the present case.
(117) In so far as Naim (PW11) is concerned, he is the neighbour of the deceased who has proved that on 8.11.2012 at about 9:00 AM Saleem informed him that his son Salman was missing since 07.11.2012 on which he also searched Salman and at about 12 noon he went to the a vacant plot at Ramgarh where he found the dead body of a boy and identified the dead body as that of Salman, after which he informed Salim of the same. (118) The most important witnesses of the prosecution who had last seen the deceased alive in the company of the accused are Mohd. Salim (PW15) father of the deceased, Mohd. Sharik @ Gullu (PW16) younger brother of the deceased and Gaurav Sharma (PW17) owner of the video game shop. Coming first to the testimony of Mohd. Salim (PW15) the father of the deceased, the relevant portion of his testimony is as under:
"........ I am residing at the aforementioned address for the last 1314 years. I have two daughters and five sons including deceased Salman. Salman was aged about 14 years and he had studied upto class 4th. On 07.11.2012 at about 9:309:45 PM my son Salman had gone to the near by shop at I1731, Jahangirpuri belonging to Gaurav for playing Video games and he told me that he would return within 30 minutes after playing video games. My another son Gullu aged about 12 years had already gone to the shop of Gaurav for playing video games before Salman went there. At about 10:30 PM Gullu returned to our house. I asked him about Salman then Gullu told me that St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 103 Salman was with his friends Sonu and Sunil and they were playing video games and he further informed that Sunil and Sonu told him to go to the house and Salman would come later on. I waited for my son Salman for about 2030 minutes but when he did not returned to the house then I went to the Video game shop of Gaurav in search of my son Salman and at about 10:4511 PM I found that the shop of Video games was closed. I searched my son in the locality but he could not be traced out. I also reached at the Ramgarh. Sonu and Sunil met me near a plot which was surrounded by boundary wall as they were crossing the boundary wall of the plot. I asked them about the whereabouts of Salman. Both told me that Salman had already gone towards our house. Thereafter I returned back to our house but Salman was not present in the house and he did not return to the house. I also informed my neighborhs that my son Salman was missing. I searched for my son Salman whole night but could not trace him and at about 4 AM I returned to my house. In the morning time I again searched my son Salman in the area but he could not be recovered. At about 99:15 AM Naim, my neighbor met me and I also told him about missing of Salman and he also went in search of my son Salman. At about 1 PM Naim informed me at my house that the dead body of Salman was found in the vacant plot surrounded by boundary wall in the Ramgarh. I along with Naim immediately reached there but police officials were present there. Police officials had already shifted dead body of my son Salman to the BJRM hospital mortuary. I along with Naim reached there and identified the dead body of my son Salman in the hospital. Police recorded my statement in detailed about the facts and about the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 104 identification of dead body vide EX PW 15/A bearing my signatures at point A. After postmortem dead body was handed over to us vide already EX PW 12/B bearing my signatures at point B. Sonu and Sunil met me near the same plot where the dead body of my son Salman was found. Police also made inquiries from my son Gullu and recorded his statement. Police also arrested Sonu @ Murgi @ Fahim was arrested by the police.
On 11.11.2012 I went to the police station Mahendra Park where I saw Sunil and I identified him as the person Sunil who met me near the plot surrounded by the boundary wall at Ramgarh on 07.11.2012 at about 1111:15 PM and told me along with Sonu that my son Salman had gone to the house.
Accused Sonu and Sunil are present in the court today (correctly identified by the witness)......."
(119) The witness has been crossexamined by the Ld. Defence Counsel, wherein he has explained that they have a joint family and children used to take money from him, his brother, his mother etc. He has also explained that Salman used to go with his uncle at his shop of Kabari in Alipur at about 8 AM and returned back at about 88:30 PM and in those days his brother was not feeling well. The witness has further explained that he was not known to Sunil prior to the incident but his children were knowing him. Witness has denied the suggestion that he has identified both the accused persons at the instance of the Investigating Officer and has explained that Sonu is residing in the nearby locality. Witness has also denied the suggestion that he has taken the name of Sonu due to previous enmity with his family or St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 105 that his son Gullu did not tell him anything about Salman playing Video Games or that Salman had not played Video Games on that day. (120) Coming next to the testimony of child witness Mohd. Sharik @ Gullu (PW16) the younger brother of the deceased who had gone to the shop of Gaurav Sharma for playing video games and had returned home and had informed his father that he had seen his brother Salman with the accused Sunil and Fahim. Here, I may observe that before recording his statement, this Court has observed that by his physical appearance the child appeared to be around 1213 years of age. This Court had questioned him and interacted with him during which the witness claimed that he is 13 years of age and was studying in class 9th. He understood the sanctity of oath and also the nature of questions/ queries put to him and hence his statement was recorded by this Court on Oath in vernacular. The relevant portion of his testimony is as under:
Court observation: By physical appearance the child appears to be around 1213 years of age. I have questioned him and inter acted with him. He claims that he is 13 years of age and studying in class 9th. He under stands the sanctity of oath and also the nature of questions / queries being put to him and hence I proceed to record his statement on oath.
On S. A. Mai Government School K Block Jahangirpuri mei class 9th mein parhta hoon. Main jahangirpuri mein apne mammi papa, dadadadi, chachachachi aur apne behan bhaiyon ke saath rehta hoon, Hum log do behan aur paanch bhai thay. Mohd. Salman mere sabse bare bhai St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 106 thay jo gujar gaye hain.
07.11.2012 ko raat ke 10.00 baje main khana khakar video game kehlne I1731 Jahangir puri gaya tha. Thori der baad mera bhai Salman, Sunil jo ki court mein baitha hai (witness has correctly pointed out to accused Sunil) aur Sonu jo be court main hai (witness has correctly pointed out to accused Fahim @ Sonu ) bhi aa gaye aur video games khelne lag gaye. Thore der baad hum log sab vahan se nikle aur ghar jaane lage. Mere bhai salman ne bola ki too jaa, main abhi a raha hoon.
Sunil ne mujhe bola "ye mere saath hai, mai ise bhej doonga". Is par mein ghar chala gaya. Maine akhiri baar apne bhai Salman ko Sonu aur Sunil ke saath dekha Tha.
Court Question: Jab aap nikle thay to kya time tha?
Ans. Yehi koi 10.30 baje ka time tha......" (121) He has been duly crossexamined by the Ld. Defence Counsel,
the witness has explained that for playing one Video Game one has to pay Rupee One Coin. He has further explained that while they were playing Video Games there were twothree persons also present but he is not aware of their names. He has also explained that when he left his house for playing Video Games, he had informed his parents about the same and his brother Salman came there after about 1015 minutes of his reaching there. The witness has specifically stated that none was accompanying the accused Sunil and Sonu at that time. He has further explained that Salman usually went to play Video Games along with Sonu and Sunil but used to return back home. He has also stated that when Salman did not return back, he had informed his St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 107 parents that Salman had gone along with Sonu and Sunil. (122) Now coming to the testimony of Gaurav Sharma (PW17) the owner of the video game shop who has confirmed that both the accused Sunil @ Raghu and Fahim @ Raju had come to his shop along with Salman and all three of them had left his shop together. The relevant portion of his testimony is as under:
"........ I am residing at the aforementioned address and I am running a shop of General merchandize at I 1731, Jahangirpuri. In the year 2012 I had also kept five machines of video games in my shop out of which one was not working. On 07.11.2012 at night at about 10.00PM Salman and his brother Gullu, Sonu (accused present in the court and correctly identified) and Sunil (accused present in the court and correctly identified) came to my shop and played video games for some time between 10.20 to 10.30PM Sunil, Salman Sonu and Gullu left the shop. The last I had seen Salman was with his brother Gullu, Sonu and Sunil when leaving my shop.
At this stage Ld. Addl. PP seeks permission to put leading question to the witness.
Heard. Permission is granted.
It is correct that police interrogated me and I had made my statement to them. It is wrong to suggest that I had told the police that Sunil had consumed alcohol. Vol. I had told them that Sunil normally consumes alcohol at night and might have consumed the same (ho sakta hai, usne pee rakhi ho)......"
(123) In his cross examination by the Ld. Defence Counsel, the witness has stated that no record of any persons who used to come and play has been St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 108 maintained by him and has explained that it is not required for him. He has also explained that at that time he was virtually about to close his shop and there was nobody else in the shop. The witness has further explained that Gullu, Salman, Sonu and Sunil were known to him prior to the incident because they use to frequent his shop very often for playing Video Games but Salman did not come very frequently.
(124) From a combined reading of the testimonies of Mohd. Salim (PW15), Mohd. Sharik @ Gullu (PW16) and Gaurav Sharma (PW17), the following aspects stand established:
➢ That on 7.11.2012 at about 10:00 PM Mohd. Sharik @ Gullu the younger brother of the deceased had gone to play Video Games at I1731, Jahangir Puri belonging to Gaurav Sharma (proved by Mohd.
SalimPW15, Mohd. Sharik PW16 and Gaurav SharmaPW17).
➢ That after about 15 minutes Salman (deceased), accused Sunil and Fahim @ Sonu also came to the shop and started playing Video Games (proved by Mohd. Sharik PW16).
➢ That at about 10:30 PM they all left the shop and Salman asked Mohd.
Sharik @ Gullu to go whereas he (Salman) would come soon and accused Sunil also told Gullu that he would leave Salman at home (proved by Mohd. Sharik PW16 and Gaurav Sharma PW17).
➢ That when Gullu returned back to his home, his father Mohd. Salim asked him about Salman on which he informed his father that Salman was with his friends Sonu and Sunil and also informed that Sunil and St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 109 Sonu told him to go to house whereas Salman would come later on (proved by Mohd. SalimPW15 and Mohd. Sharik PW16).
➢ That at about 10:4511:00 PM when Salman did not return back to the house, Mohd. Salim went to the Video Game Shop of Gaurav Sharma in search of his son Salman but he found the shop of Video Games closed (proved by Mohd. SalimPW15).
➢ That Mohd. Salim searched his son Salman in the locality but could could not trace him out after which he reached at the vacant plot bearing no. A46, Ramgarh, Jahangir Puri, Delhi which is surrounded by boundary walls on all the sides (proved by Mohd. SalimPW15).
➢ That the accused Sonu and Sunil met Mohd. Salim while they were crossing the boundary wall of the plot on which Mohd. Salim asked them about the whereabouts of Salman and both the accused (Sonu and Sunil) told him that Salman had already gone towards his house (proved by Mohd. SalimPW15).
➢ That on this Mohd. Salim returned back to his house but Salman did not return back (proved by Mohd. SalimPW15).
➢ That in the morning Mohd. Salim again searched his son Salman in the area but he could not be traced (proved by Mohd. SalimPW15). ➢ That at about 99:15 AM the neighbour namely Naim met Mohd. Salim on which Mohd. Salim also informed Naim about the missing of Salman and they both went in search of Salman (proved by Naim St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 110 PW11 and Mohd. SalimPW15).
➢ That at about 1:00 PM Naim informed Mohd. Salim at his house that the dead body of Salman was found in the vacant plot surrounded by boundary wall in Ramgarh (proved by NaimPW11 and Mohd. Salim PW15).
➢ That on this Mohd. Salim along with Naim immediately the spot but by that time the dead body of Salman was already shifted to the Hospital where Mohd. Salim identified it (proved by NaimPW11 and Mohd. SalimPW15).
(125) Here, I may observe that Mohd. Salim (PW15) is a reliable witness. He is the father of the deceased and his behaviour is natural and probable. When Mohd. Sharik @ Gullu returned home he inquired about Salman from him and when Salam did not return home till 10:30 PM finding it very late, Mohd. Salim himself went to look about the child and also went to the shop of Video Games but the shop was found closed. While Mohd. Salim was returning back to his house, he had even crossed the plot which was on the way and saw the accused Sunil and Fahim crossing the boundary wall and inquired from them about the whereabouts of Salman who told him that he gone back to home on which he returned home but not finding Salman he again started searching for him throughout the night. It was on the next day morning that his neighbour Naim informed him that the dead body of Salman was found in the vacant plot. There is no reason to doubt the version of Mohd. Salim more so since he had named both the accused Sunil @ Raghu St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 111 and Fahim @ Raju @ Murgi in his first statement to the Investigating Officer which is Ex.PW15/A which was recorded without any wastage of time. Here, I may observe that the information was received at Police Station Mahendra Park at 10:30 AM vide DD No. 14A which is Ex.PW19/A pursuant to which the police reached the spot but they did not find any eye witness. Simultaneously Naim who came to know about the dead body also reached the spot and identified reached the spot and identified the dead body as of Salman. In the meantime information was sent to the Crime Team at 10:40 AM and the Crime Team reached the spot at 11:40 AM and inspected the spot till 11:40 AM and prepared its report which is Ex.PW1/A. Thereafter at 12:50 PM SI Anoop Kumar (PW19) prepared rukka Ex.PW19/B on the basis of DD No. 14A and the FIR Ex.PW3/A was registered at 1:05 PM. The dead body of the deceased child Salman was shifted to the Mortuary of BJRM Hospital where Mohd. Salim also reached. SI Anoop Kumar then recorded the statement of Mohd. Salim wherein he had specifically named both the accused Sunil @ Raghu and Fahim @ Sonu at the first instance. On the same day the postmortem on the dead body of the deceased was conducted and on the next day i.e. 9.11.2012 the accused Fahim @ Sonu was arrested at the instance of Mohd. Salim.
(126) The witnesses Mohd. Salim (PW16), Mohd. Sharik @ Gullu (PW16) and Gaurav Sharma (PW17) have no history of animosity with the accused Sunil @ Raghu or Fahim @ Sonu and there is no reason for them to falsely implicate them. Their testimonies even otherwise are natural, St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 112 probable, trustworthy and there is no reason to disbelieve the same. I hereby hold that the testimonies of Mohd. Salim (PW16), Mohd. Sharik @ Gullu (PW16) and Gaurav Sharma (PW17) establishes that in the instant case there is a proximity between the last seen and the time of death of the deceased. It is evident from the Postmortem Report Ex.PW10/A that the postmortem examination of the deceased was conducted on 8.11.2012 at 1:00 PM and the time of the death has been opined by the Autopsy Surgeon as 12 - 14 Hours thereby establishing that the death of the deceased Salman had taken place on the intervening night of 78.11.2012 between 10:00 PM to 12:00 Midnight and it was around 11:15 PM to 11:30 PM that Mohd. Salim had seen both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi coming out of the boundary wall of the vacant plot. Further, the DNA Report confirms that the semen stains present on the underwear of the deceased child Salman were of the accused Fahim @ Sonu @ Murgi, thereby lending independent confirmation to the version put forth by the father of the deceased. (127) The accused are the best persons who could have offered an explanation as to when they parted with the company of the deceased without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 113 within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience.
(128) When this incriminating material was put to the accused Sunil @ Raghu and Fahim @ Sonu they failed to explain when they parted company with the deceased and where and in response to the same have simply denied the incriminating material as incorrect.
(129) In view of the above, I hereby hold that the fact that the deceased child Salman was last seen alive in the company of the accused Sunil @ Raghu and Fahim @ Sonu, is highly determinative of their guilt. Apprehension/ Arrest of the accused - Disclosure Statements:
(130) The case of the prosecution that after the registration of the FIR on 8.11.2012, on the very next day i.e. at about 8.30AM SI Anoop (PW19), HC Sudesh (PW20) and Inspector Darshan Singh (PW21) went to the IBlock, Jahangir Puri where Salim father of deceased and Gullu brother of the deceased met them. Thereafter at the instance of Mohd. Salim they reached at the house of the accused Sonu @ Fahim @ Murgi and at the instance of Salim, the accused was apprehended. During interrogation the accused Fahim @ Sonu was interrogated by the Investigating Officer during which he confessed about the killing of the deceased Salman. The accused was then arrested vide memo Ex.PW19/H, his personal search was taken vide Ex.PW19/I and his disclosure statement was recorded vide Ex.PW19/J. At the instance of accused Fahim, his shirt of cream colour of white and brown St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 114 linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were kept in a cloth pullanda and sealed with the seal of DS and seized vide seizure memo Ex.PW19/K. Thereafter the accused Fahim @ Sonu pointed out the place of incident vide pointing out memo Ex.PW19/L and pursuant to his disclosure statement the accused Fahim @ Sonu got recovered one half piece of brick from the place of incident from the bushes and disclosed that he had caused injuries to the deceased Salman by said brick piece after which the said brick was sealed in a cloth pullanda by the Investigating Officer with the seal of DS and seized the same vide memo Ex.PW19/M. (131) On 11.11.2012 during investigations SI Anoop (PW19), HC Sudesh (PW20) and Inspector Darshan Singh (PW21) reached near Kushal Cinema, Jahangir Puri at about 9.4510.00PM where at the instance of secret informer they apprehended accused Sunil. One mobile phone of make Wing with SIM was recovered from the possession of the accused Sunil @ Raghu which mobile was seized vide memo Ex.PW19/N. The accused Sunil was then interrogated by the Investigating Officer who confessed about his involvement in the murder of deceased Salman after which the accused Sunil was arrested vide memo Ex.PW19/O and his personal search was taken vide Ex.PW19/P. The clothes which the accused Sunil @ Raghu was wearing i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were taken into possession by the Investigating Officer and sealed St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 115 the same in a cloth pullanda with the seal of DS and seized the same vide memo Ex.PW19/Q. The Investigating Officer then recorded the disclosure statement of Sunil vide Ex.PW19/R after which the accused Sunil also pointed out the place of incident vide pointing out memo Ex.PW19/S. (132) Ld. Defence Counsel has vehemently argued that the disclosure statements of the accused are inadmissible in evidence being hit by the provisions of Section 25 of Evidence Act. On the other hand the Ld. Ld. Addl. PP for the State has vehemently argued that the disclosure statements so made by the accused are admissible in evidence more so since pursuant to his disclosure statement the accused Fahim @ Sonu got recovered the half brick piece with which he had caused injuries to the deceased Salman which is discovery of a relevant fact as per the provisions of Section 27 of Evidence Act.
(133) I have considered the rival contentions and I may observe that the place where the dead body was recovered was already within the knowledge of the police. It was also within the knowledge of the Investigating Agency that the injury no.2 was caused by blunt force impact but it was not within their knowledge as to what was the nature of weapon used by the accused and where the accused had hidden the same. I may note that though large number of bricks were lying at the spot of incident, as evident from the photograph Ex.PW2/A7 yet it was only on the pointing out of the accused Fahim @ Sonu that the half brick piece Ex.P3 was recovered and the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 116 medical evidence on record confirms the use of this half brick piece in giving blunt injuries to the deceased.
(134) What turns on the fact is that it was the accused Fahim @ Sonu @ Murgi led the police party to the place of occurrence i.e. plot no. A46, Ramgarh, Jahangir Puri, Delhi and from the nearby bushes he got recovered the half brick piece with which he had caused injuries to the deceased child Salman. The medical evidence on record establishes that there were irregular multiple contusions on the upper part of chest in an area of 16cm x 12cm and on internal examination of chest there was blood in chest wall with fracture of sternum at the level of second rib with fracture ribs second and third on left side of chest, plural cavity was full of blood about one litre, left lung was punctured lacerated, wound below fracture ribs. Further, the subsequent opinion of the Autopsy Surgeon which is Ex.PW10/B establishes that the injury no.2 was caused by this half piece of brick (Ex.P4), which the accused has not been able to controvert. Therefore, this part of the disclosure statement of the accused Fahim @ Sonu @ Raju leading to the discovery of the half brick as the weapon of offence is discovery of a relevant fact as contemplated under Section 27 of Evidence Act and is admissible in evidence.
(135) In view of my aforesaid discussion I hereby hold that the disclosure made by the accused Fahim @ Sonu leading to the recovery of half brick piece is incriminating qua the accused.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 117
Photographs of the Scene of Crime - Proved:
(136) I may observe that the scene of crime has been duly inspected by the Crime Team incharge SI Naresh Pal (PW1) and photographed by Ct.
Parvinder Singh (PW2) who has proved the various photographs taken by him which are Ex.PW2/A1 to Ex.PW2/A17. The relevant photographs which confirm the status of the scene of crime spot and also lend credence to the ocular versions given by witnesses are as under:
(137) The above photograph Ex.PW2/A6 particularly the portion encircled by me indicates that there were no clothes on the body of the deceased except the pants which were pulled below the knee and irregular multiple contusions on top part of the chest.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 118
(138) The above photograph Ex.PW2/A7 particularly the portions encircled by me confirm the presence of bricks including the half brick Ex.P4 (weapon of offence) near the dead body and the clothes lying nearby.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 119
(139) From the above photograph Ex.PW2/A3 the injuries on the face/ neck and chest portion of the deceased child particularly irregular multiple contusions on top part of the chest and blue marks around the neck confirming manual strangulation of the deceased child, can be seen. The above photograph also shows that the protruding tongue of the deceased child, thereby lending credence to the medical evidence and confirms that the child was strangulated.
(140) The above photograph Ex.PW2/A11 particularly the portion encircled by me shows the presence of clothes of the deceased lying near the dead body.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 120
(141) Apart from the above photographs which I have specifically made a part of the judgment, the other photographs of the spot so taken at the spot by Ct. Parvinder (PW2) lend independent confirmation to the oral testimonies of the prosecution witnesses regarding the position of the dead body when it was discovered and confirms the scene of crime which photographs are highly incriminating qua the accused.
Charges Established against the accused:
(142) Charges under Sections 363/34, 377/511 read with 34 IPC and 302/34 Indian Penal Code have been settled against the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi.
(143) On the basis of the testimonies of the various prosecution witnesses, the medical, forensic and other circumstantial on record, I hereby hold that the prosecution has been able to successfully prove and establish that on 7.11.2012 at about 10:00 PM at Shop of Gaurav Sharma, IBlock Jahangir Puri, Delhi both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi in furtherance of their common intention kidnapped Salman S/o Mohd. Saleem aged about 14 years from the lawful guardianship of his parents without their consent. Even if it is presumed that the accused had taken the deceased with his consent (the child being aged about 14 years) it will not fatal to the case of the prosecution on account of the fact that there were signs of resistance on the body of the child showing that he had resisted to the illegal designs of the accused making them liable for the offence under Section 363/34 Indian St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 121 Penal Code.
(144) Further, the prosecution has been able to successfully prove and establish that the accused Fahim @ Sonu @ Murgi attempted to commit carnal intercourse against the order of nature with Salman and the accused Sunil @ Raghu in furtherance of the common intention aided and assisted in the act/ attempt to commit carnal intercourse against the order of nature, for which both the accused i.e. Sunil @ Raghu and Fahim @ Sonu @ Murgi are held guilty of the offence under Section 377/511 read with 34 Indian Penal Code.
(145) The prosecution has also been been able to successfully prove and establish that both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi in furtherance of their common intention committed the murder of child Salman by strangulation and by causing brick blow on his chest for which both the accused are held guilty of the offence under Section 302/34 Indian Penal Code.
FINAL CONCLUSIONS:
(146) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 122 circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(147) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. The identity of the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi has been established and their prompt arrest within a few hours of the incident particularly after the discovery of the dead body of the child Salman has been duly established. On the basis of the testimonies of the various prosecution witnesses the following aspects stand established:
➢ That on 7.11.2012 at about 10:00 PM Mohd. Sharik @ Gullu the younger brother of the deceased had gone to play Video Games at I1731, Jahangir Puri (belonging to Gaurav Sharma).St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 123
➢ That after about 15 minutes Salman (deceased), accused Sunil and Fahim @ Sonu also came to the shop and started playing Video Games;
that at about 10:30 PM they all left the shop and Salman asked Mohd.
Sharik @ Gullu to go whereas he (Salman) would come soon and accused Sunil also told Gullu that he would leave him at the house.
➢ That when Gullu returned back to his home, his father Mohd. Salim asked him about Salman on which he informed his father that Salman was with his friends Sonu and Sunil and also informed that Sunil and Sonu told him to go to house whereas Salman would come later on.
➢ That at about 10:4511:00 PM when Salman did not return back to the house, Mohd. Salim went to the Video Game Shop of Gaurav Sharma in search of his son Salman but he found the shop of Video Games closed.
➢ That Mohd. Salim searched his son Salman in the locality but could could not trace him out after which he reached at the vacant plot bearing no. A46, Ramgarh, Jahangir Puri, Delhi which is surrounded by boundary walls on all the sides.
➢ That the accused Sonu and Sunil met Mohd. Salim while they were crossing the boundary wall of the plot on which Mohd. Salim asked them about the whereabouts of Salman and both the accused (Sonu and Sunil) told him that Salman had already gone towards his house.
➢ That on this Mohd. Salim returned back to his house but Salman did not return back.
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 124 ➢ That in the morning Mohd. Salim again searched his son Salman in the area but he could not be traced; that at about 99:15 AM the neighbour namely Naim met Mohd. Salim on which Mohd. Salim also informed Naim about the missing of Salman and they both went in search of Salman.
➢ That at about 1:00 PM Naim informed Mohd. Salim at his house that the dead body of Salman was found in the vacant plot surrounded by boundary wall in Ramgarh.
➢ That on this Mohd. Salim along with Naim immediately rushed to the spot but by that time the dead body of Salman was already shifted to the Hospital where Mohd. Salim identified it.
➢ That on the basis of DD No.14A the rukka was prepared and the FIR was registered and the Crime Team was called to the spot which inspected the scene of crime and took photographs of the same vide Ex.PW2/A1 to Ex.PW2/A17.
➢ That on 8.11.2012 the statement of Mohd. Salim father of the deceased and Mohd. Sharik @ Gullu the brother of the deceased were recorded in the hospital and the statement of Gaurav Sharma was recorded who all confirmed that they had last seen the deceased child Salman in the company of the accused Sunil @ Raghu and Fahim @ Sonu while they were taking him away with them after they left the shop of Gaurav Sharma and Mohd. Salim also informed that while he was searching for his son he had seen Sunil and Sonu near the boundary wall of the plot St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 125 where the dead body of Salman was discovered the next day. ➢ That when Mohd. Salim inquired about the whereabouts of Salman from Sunil @ Raghu and Fahim @ Sonu, they misled him saying that he (deceased Salman) had already gone home.
➢ That on 09.11.2012 at about 8.30AM at the instance of Salim (father of deceased) and Gullu (brother of the deceased), the accused Sonu @ Fahim @ Murgi was apprehended from his house.
➢ That the accused Sonu was interrogated by the Investigating Officer during which the accused disclosed his involvement in killing of the deceased Salman.
➢ That the accused Sonu @ Fahim was arrested and his disclosure statement was recorded.
➢ That at the instance of accused Fahim, his shirt of cream colour with white and brown linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were taken into possession.
➢ That the accused Sonu @ Fahim pointed out the place of incident and got recovered one half piece of brick from the bushes near the place of incident and disclosed that he had caused injuries to the deceased Salman by said brick piece after which the said brick was taken into possession.
➢ That 11.11.2012 pursuant to a secret information the accused Sunil @ Raghu was apprehended from near Kushal Cinema, Jahangir Puri. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 126 ➢ That one mobile phone of make Wing with SIM was recovered from his possession which mobile was taken into possession after which the accused Sunil was arrested in this case and his disclosure statement was recorded.
➢ That the wearing clothes of the accused Sunil i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were then taken into possession by the Investigating Officer. (148) The prosecution has been able to conclusively establish that the motive of crime was to commit carnal intercourse against the order of nature with the deceased child but on account of his stiff resistance, the child was killed. The Medical Evidence on record conclusively establishes that the death of the deceased child Salman was due to combined effect of coma, asphyxia and shock due to manual strangulation via hands and chest injury which injuries were sufficient to cause death in ordinary course of nature and is compatible to the prosecution version. Further, the nature of injuries present on the dead body of the deceased confirms that it was not the work of a single person and more than one person was involved in the same. The Medical Evidence is also compatible to the Last Seen Evidence on record in the form of testimonies of Mohd. Salim, Mohd. Sharik @ Gullu and Gaurav Sharma who have last seen the deceased alive in the company of the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi and confirms the prosecution version. The fact that the deceased child Salman was last seen alive in the company of the accused Sunil @ Raghu and Fahim @ Sonu, is highly St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 127 determinative of their guilt.
(149) Further, the DNA Fingerprinting Report conclusively establishes the presence of the DNA of accused Fahim @ Sonu @ Murgi on the underwear of the deceased child Salman found at the spot and conclusively connects the accused with the alleged offence. It also confirms the prosecution version to the effect that the motive of the offence was to commit carnal intercourse with the deceased child Salman against the order of nature and when the child resisted he was given blows with a half brick and then manually strangulated.
(150) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(151) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 128 inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(152) This being the background I hereby hold that the prosecution has been able to successfully prove and establish that on 7.11.2012 at about 10:00 PM at Shop of Gaurav Sharma, IBlock Jahangir Puri, Delhi both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi in furtherance of their common intention kidnapped Salman S/o Mohd. Saleem aged about 14 years from the lawful guardianship of his parents without their consent. Even if it is presumed that the accused had taken the deceased with his consent (the child being aged about 14 years) it will not fatal to the case of the prosecution on account of the fact that there were signs of resistance on the body of the child showing that he had resisted to the illegal designs of the accused making them liable for the offence under Section 363/34 Indian Penal Code. (153) Further, the prosecution has been able to successfully prove and establish that the accused Fahim @ Sonu @ Murgi attempted to commit carnal intercourse against the order of nature with Salman and the accused Sunil @ Raghu in furtherance of the common intention aided and assisted in the act/ attempt to commit carnal intercourse against the order of nature, for which both the accused i.e. Sunil @ Raghu and Fahim @ Sonu @ Murgi are held guilty of the offence under Section 377/511 read with 34 Indian Penal Code.
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 129 (154) The prosecution has also been been able to successfully prove and establish that both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi in furtherance of their common intention committed the murder of child Salman by strangulation and by causing brick blow on his chest for which both the accused are held guilty of the offence under Section 302/34 Indian Penal Code.
(155) Be listed for arguments on sentence on 21.10.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.10.2014 ASJII(NW)/ROHINI
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 130
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 24/2013 Unique Case ID No. 02404R0042512013 State Vs. (1) Sunil @ Raghu S/o Sh. Nanu Ram R/o C1790, Jahangir Puri, Delhi (Convicted) (2) Fahim @ Sonu @ Murgi S/o Sharif R/o I1152, Jahangir Puri, Delhi (Convicted) FIR No.: 313/2012 Police Station: Mahendra Park Under Sections: 302/363/377/511/34 IPC Date of Conviction: 16.10.2014 Arguments heard on: 29.10.2014 Date of Sentence: 1.11.2014 APPEARANCE:
Present: Sh. Shiv Kumar, Ld. Addl. Public Prosecutor for the State.
Both the convicts i.e. Sunil @ Raghu and Fahim @ Sonu are in Judicial Custody with Ms. Neelam Singh Advocate/ Amicus Curiae.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 131
ORDER ON SENTENCE:
As per the allegations on 7.11.2012 at about 10:00 PM at Shop of Gaurav, I Block Jahangir Puri, Delhi both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi in furtherance of their common intention kidnapped Salman S/o Mohd. Saleem aged about 14 years from the lawful guardianship of his parents and then attempted to commit carnal intercourse against the order of nature with Salman. It has also been alleged that both the accused in furtherance of their common intention committed murder of Salman by strangulation and by causing brick blow on his chest and face.
On the basis of the testimonies of the various prosecution witnesses including Mohd. Salim (father of the deceased), child witness Mohd. Sharik (brother of the deceased) and Gaurav Sharma (owner of the video game shop) and also on the basis of medical, forensic and other circumstantial evidence on record, this Court vide a detail judgment dated 16.10.2014 held both the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi guilty of the offence under Section 363/34, 377 r/w 511/34 and 302/34 Indian Penal Code.
Vide the detail judgment this Court has observed that the prosecution has been able to successfully establish that on 7.11.2012 at about 10:00 PM Mohd. Sharik @ Gullu the younger brother of the deceased had gone to play Video Games at I1731, Jahangir Puri (belonging to Gaurav Sharma); that after about 15 minutes Salman (deceased), accused Sunil and Fahim @ Sonu also came to the shop and started playing Video Games; that St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 132 at about 10:30 PM they all left the shop and Salman asked Mohd. Sharik @ Gullu to go whereas he (Salman) would come soon and accused Sunil also told Gullu that he would leave him at the house; that when Gullu returned back to his home, his father Mohd. Salim asked him about Salman on which he informed his father that Salman was with his friends Sonu and Sunil and also informed that Sunil and Sonu told him to go to house whereas Salman would come later on; that at about 10:4511:00 PM when Salman did not return back to the house, Mohd. Salim went to the Video Game Shop of Gaurav Sharma in search of his son Salman but he found the shop of Video Games closed; that Mohd. Salim searched his son Salman in the locality but could could not trace him out after which he reached at the vacant plot bearing no. A46, Ramgarh, Jahangir Puri, Delhi which is surrounded by boundary walls on all the sides; that the accused Sonu and Sunil met Mohd. Salim while they were crossing the boundary wall of the plot on which Mohd. Salim asked them about the whereabouts of Salman and both the accused (Sonu and Sunil) told him that Salman had already gone towards his house; that on this Mohd. Salim returned back to his house but Salman did not return back.
It has also been established that in the morning Mohd. Salim again searched his son Salman in the area but he could not be traced; that at about 99:15 AM the neighbour namely Naim met Mohd. Salim on which Mohd. Salim also informed Naim about the missing of Salman and they both went in search of Salman; that at about 1:00 PM Naim informed Mohd. Salim St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 133 at his house that the dead body of Salman was found in the vacant plot surrounded by boundary wall in Ramgarh; that on this Mohd. Salim along with Naim immediately rushed to the spot but by that time the dead body of Salman was already shifted to the Hospital where Mohd. Salim identified it.
It has also been established that on 09.11.2012 at about 8.30AM at the instance of Salim (father of deceased) and Gullu (brother of the deceased), the accused Sonu @ Fahim @ Murgi was apprehended from his house; that the accused Sonu was interrogated by the Investigating Officer during which the accused disclosed his involvement in killing of the deceased Salman; that the accused Sonu @ Fahim was arrested and his disclosure statement was recorded; that at the instance of accused Fahim, his shirt of cream colour with white and brown linings and one pant of cream colour were recovered from his house i.e. I1152, Jahangir Puri which were taken into possession; that the accused Sonu @ Fahim pointed out the place of incident and got recovered one half piece of brick from the bushes near the place of incident and disclosed that he had caused injuries to the deceased Salman by said brick piece after which the said brick was taken into possession.
The prosecution has also been able to prove and establish that on 11.11.2012 pursuant to a secret information the accused Sunil @ Raghu was apprehended from near Kushal Cinema, Jahangir Puri; that one mobile phone of make Wing with SIM was recovered from his possession which mobile was taken into possession after which the accused Sunil was arrested in this case and his disclosure statement was recorded; that the wearing clothes of the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 134 accused Sunil i.e. coffee colour shirt, coffee colour pant, one inner and one pair of shoes and underwear were then taken into possession by the Investigating Officer.
This Court has further observed that the prosecution has been able to conclusively establish that the motive of crime was to commit carnal intercourse against the order of nature with the deceased child but on account of his stiff resistance, the child was killed.
The Medical Evidence on record conclusively establishes that the death of the deceased child Salman was due to combined effect of coma, asphyxia and shock due to manual strangulation via hands and chest injury which injuries were sufficient to cause death in ordinary course of nature and is compatible to the prosecution version. Further, the nature of injuries present on the dead body of the deceased confirms that it was not the work of a single person and more than one person was involved in the same. The Medical Evidence is also compatible to the Last Seen Evidence on record in the form of testimonies of Mohd. Salim, Mohd. Sharik @ Gullu and Gaurav Sharma who have last seen the deceased alive in the company of the accused Sunil @ Raghu and Fahim @ Sonu @ Murgi and confirms the prosecution version. The fact that the deceased child Salman was last seen alive in the company of the accused Sunil @ Raghu and Fahim @ Sonu, is highly determinative of their guilt.
Further, the DNA Fingerprinting Report conclusively establishes the presence of the DNA of accused Fahim @ Sonu @ Murgi on St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 135 the underwear of the deceased child Salman found at the spot and conclusively connects the accused with the alleged offence. It also confirms the prosecution version to the effect that the motive of the offence was to commit carnal intercourse with the deceased child Salman against the order of nature and when the child resisted he was given blows with a half brick and then manually strangulated.
Heard arguments on the point of sentence. The convict Sunil @ Raghu is a young boy of 25 years having a family comprising of aged widow mother, one sister and four brothers. He is 9th class pass and is reported to have been working in a vegetable shop at Subji Mandi Azadpur.
The convict Fahim @ Sonu is a young boy of 22 years having a family comprising of aged widow mother and two younger sisters. He is totally illiterate and is reported to have been working as Labour in a factory.
Ld. Counsel for the convicts has vehemently argued that both the convicts are young boys having no previous criminal involvements and are first time offenders. She has also argued that both the convicts belong to poor families and in fact the convict Fahim @ Sonu is the sole bread earner of his family. She has prayed that a lenient view be taken against the convicts.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 136 to impose death sentence upon the convicts. It is also argued that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
Ld. Addl. PP for the State has also prayed for compensation to the family of the victim and has placed his reliance in the case of Delhi Domestic Working Women's Forum Vs. Union of India and Ors. reported in (1995) 1 SCC 14 wherein it has been observed that:
"......... Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 137 compensation......"
On the other hand the Ld. Amicus Curiae appearing on behalf of the convicts has argued that the convicts are very poor persons so much so that they were not in a position to arrange for a counsel at their expenses and had been given legal assistance at state expenses and has prayed for a minimum compensation.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 138 or
(b) Where the murder involves exceptional depravity. The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 139 aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation. St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 140
Now I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that both the convicts Sunil @ Raghu and Fahim @ Sonu are young boys and have no previous criminal record. The aggravating factors are that the the convicts were good friends of the deceased child Salman. The extent of force used upon the child is evident from the fact that there was fracture of sternum at the level of second rib with fracture ribs second and third on left side of chest of the child. The convicts in order to ensure that their crime (attempt to commit carnal intercourse against the order of nature) does not come to light, strangulated the child on their failure to commit carnal intercourse against the order of nature on account of stiff resistance from the child so that their acts may not come to light.
I may note that lately cases of aggravated sexual assault on children including sodomization of male children are on rise. The deceased child was a vulnerable prey for the convicts who were previously known to him, rather were friendly to him. It makes no difference whether in cases of sexual offence the victim is a child male or female. The physical pain and trauma (physical, emotional and physiological) faced by the child is the same. A male child is as much at a risk as a female child. Ironically, these offences are committed by those who are closely related and known to the child.
In the present case the offence has been committed by the persons who were close friends of the deceased child. This is nothing short of betrayal of trust, the child Salman must have reposed in the convicts. What St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 141 the convicts have done is unthinkable. This category of perpetrators of crime who if not removed from the circulation of the society would destroy it. This Court cannot ignore the loud cry for justice by the society in this case involving heinous crime of sodomization of an innocent child of tender years and his grotesque killing and will respond by imposition of proper sentence least people loose faith in the Judicial System and take law into their hands. If the Justice System fails to act in time to come up to legitimate expectations of the society; people would stand up and act, for which we cannot blame them. There cannot be a disconnect between the sentence so imposed by the Court and the legitimate expectations of the society. Let those who mess with children know that the Justice System in India has Zero Tolerance for it and a Single Moment of Madness can lead them to a Life behind the bars.
This being the background, the ghastly, inhuman act of the convict cannot be condoned and a substantive, stern sentence if not imposed upon him would be travesty of justice. The message to be sent by the Court has to be loud and clear, and that is "do not mess with a child" and any person who meddles with the child male or female in any manner shall not be spared come what may. The present case cannot be put on the same pedestal as other ordinary murder case but at the same time it also does not fall within the category of Rarest of Rare Case or even Rare Case. I therefore award the following punishment to the convicts:
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 142
Sunil @ Raghu S/o Sh. Nanu Ram:
1. For the offence under Section 363 IPC the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
2. For the offence under Section 377 r/w 511 IPC the convict is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
3. For the offence under Section 302 IPC the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.1,00,000/ (Rs. One Lac). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months. The entire fine amount of Rs.1,00,000/ shall be given to the parents of the deceased child Salman as compensation under Section 357 Cr.P.C.
All the sentences shall run concurrently.
Fahim @ Sonu @ Murgi S/o Sharif:
1. For the offence under Section 363 IPC the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.2,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 143
2. For the offence under Section 377 r/w 511 IPC the convict is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.5,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
3. For the offence under Section 302 IPC the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.1,00,000/ (Rs. One Lac). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months. The entire fine amount of Rs.1,00,000/ shall be given to the parents of the deceased child Salman as compensation under Section 357 Cr.P.C.
All the sentences shall run concurrently.
Benefit of section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them during the trial, as per rules.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the parents of the deceased child Salman.
Matter be also referred to Delhi Legal Service Authority for further compensation to the parents of the deceased under Victim Compensation Scheme.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 144 functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convicts free of costs and one of order on sentence be attached with their jail warrant.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 1.11.2014 ASJII(NW)/ ROHINI
St. Vs. Sunil @ Raghu & Anr., FIR No. 313/12, PS Mahendra Park Page No. 145