Delhi District Court
State vs . Harish Dua @ Sanjay on 29 January, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 690/06
Unique Case ID No. 02404R0285132006
State Vs. Harish Dua @ Sanjay
S/o Sh. Ramlal Dua
R/o A-157, Sudarshan
Park, New Delhi
(Convicted)
FIR No.: 387/2006
Under Section: 302 Indian Penal Code &
25,27/54/59 Arms Act
Police Station: Rajouri Garden
Date of committal to Sessions court: 3.10.2006
Date on which orders are Reserved: 12.1.2011
Date on which judgment announced: 15.1.2011
JUDGMENT:
As per the allegations, on 20/21.4.2006 the accused Harish Dua @ Sanjay committed the murder of Harish Rana knowingly or intentionally by firing the deceased with a pistol. It is also alleged that the accused Harish Dua was found in possession and used the said firearm without any permit of license and in contravention of notification of Government of NCT of Delhi.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 1BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 21.4.2006 Constable Ashok Kumar who was posted in Traffic Circle, Rajouri Garden, was on duty as a Driver of Traffic Inspector and on that day as a routine he checked the Ring Road area falling within the traffic circle of Rajouri Garden. At about 6:00 am when he reached near ESI Hospital, he found one black colour motorcycle bearing no. HR-12H-3822 parked on the road side opposite the ESI Hospital and about 10-15 feet away near the wall he noticed a dead body which was in a sitting posture with the knees touching the ground and head touching the wall in front of him with blood on the forehead. Constable Ashok thereafter informed the PCR pursuant to which Sub Inspector P.C. Yadav along with Constable Hari Darshan reached the spot where they found two cigarettes of Gold Flake, purse and one mobile phone of Samsung. On checking the purse of the deceased one driving license in the name of Harish Rana was found on which information was sent to the address mentioned in the driving license and one Rakesh Rana came to the spot who identified the deceased as his brother Harish Rana. On the basis of the statement of Rakesh Rana the present FIR was registered.
During investigations it was revealed that Harish Rana had lend some money to one Harish Dua (the present accused). The accused was called for investigations but he did not joint the same. On 23.4.2006 the Investigating Officer Inspector Jaivir Singh received an information that Harish Dua was in hurry to St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 2 leave for some unknown place with his bag. Pursuant to the said information the investigating officer along with Sub Inspector P.C. Yadav and other police officials reached A-159, Sudershan Park, New Delhi where they met the accused Harish Dua who was ready to leave with a black bag in his hand. The accused Harish Dua was apprehended and during interrogation he admitted having committed the murder of Harish Dua after which he was arrested in this case. On 24.4.2006 the accused Harish Dua got recovered the clothes which he was wearing at the time of incident from his house and on 26.4.2006 he got recovered the weapon of offence i.e. the katta from the ganda nala, Sudershan Park towards Punjabi Bagh Club. After completion of investigations the present charge sheet was filed in the court.
CHARGE:
The Ld. Predecessor of this court has settled the charges under Section 302 Indian Penal Code and under Section 27 of Arms Act against the accused to which he has pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as 22 witnesses.
Eye witnesses/ public witnesses/ complainant:
PW1 Akbar has deposed that he knew the deceased Harish Rana as he lived in the same area and on 21.4.2006 he had St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 3 left for his godown at village Basai Darapur, Delhi. According to him, the godown of Bittu Rana is adjacent to his godown and on reaching the godown he came to know that the younger brother of Bittu Rana namely Micky had met with an accident. He has deposed that one person namely Som Pal present at the godown told him to go to the police post Raghubir Nagar on which he reached police post Raghubir Nagar where he was made to sign certain papers. The said witness was declared hostile and therefore, he was cross-examined by the Ld. Addl. PP for the state wherein he has denied that on 21.4.2006 he was present opposite ESI Hospital Executive Engineer (Flood) Office on a road leading to Shivaji Park and that near the boundary wall a male body with blood oozing from head towards the face and with its zip open, was found by him which he had identified to be the dead body of Harish Rana. The witness has also denied that the body was then shifted in government vehicle Tata-407 to DDU Hospital mortuary and that doctor had opined after postmortem examination that Harish Rana had been shot dead. The witness has been confronted with his statement made to the investigating officer wherein the aforesaid facts have been recorded. He has admitted that Harish Rana used to lend money on interest but has denied that he had stated to the investigating officer that Harish Rana might have been shot dead by one of the person known to him on account of dispute for return of money. PW1 has, however, proved his statement Ex.PW1/A made to the investigating officer identifying the dead body at the DDU Hospital.St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 4
In his cross-examination the witness has stated that he reached the hospital in the afternoon where Rakesh Rana and his family members were also present but he does not know if Azad Hooda was also present there. According to him, he left the hospital after the dead body had been handed over to its family members and he knew Rakesh Rana for the last 7-8 years. PW1 has also deposed that he knew the deceased for the last 7-8 years who was the brother of his employers namely Rakesh Rana. He has further deposed that his statement was not recorded at the hospital.
PW3 Rakesh Rana is the elder brother of deceased who has deposed that his younger brother Harish Rana was a Financer for TV, Fridge Etc. under the name and style of Rana Finance and Company and also had a factory by the name of Rana and Brothers & Company where CFLs were assembled in the same premises i.e. A-128, Ground Floor, Sudershan Park, New Delhi and they were residing at the first floor and 6/7 persons were employed there. According to him, on 20.4.2006 at about 5:30 pm his brother Harish Rana left the factory on his motorcycle no. HR- 12H-3822 but he did not return home for the entire night and in the next morning police officials came to their house and took him in front of ESI Hospital where he was showed the body of his brother who was bleeding from the head and the motorcycle was parked nearby. He has deposed that the zip of the trouser of his brother was opened and he identified the dead body of his brother which was thereafter sent to DDU Hospital for postmortem examination.St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 5
PW3 has testified that after postmortem it was revealed that his brother had firearms injury on the back of his head. The dead body was thereafter handed over to his brother Anil Rana for last rites. He has proved his statement made to the police which is Ex.PW3/A. PW3 has identified the motorcycle bearing registration no. HR-12H-3823 which is Ex.P-1 and has clarified that registered owner of the motorcycle is his maternal uncle Azad Singh Hooda and the registration number was allotted as 3822 but subsequently it was clarified by the Registering Authority that the number was 3823.
In his cross-examination the witness has admitted that the wife and children of his brother Anil Rana reside and study in Gurgaon and so does Anil Rana who is working at Gurgaon in Sandhar Lok Division - a unit of Hero Honda. According to him, his deceased brother used to consume liquor on an average 2-3 days a week and has denied that his brother used to remain absent through the night, several times a week. PW3 has testified that his brother had purchased a new phone but he is not aware if the mobile no. of the deceased was 9818539091. He has deposed that he did not see any mobile phone lying at the spot but he was told by the police that a mobile phone, gold chain, purse, kara etc. were recovered from the body. The witness has admitted that the motorcycle bearing no. HR-12H-3822 or 3823 is not owned by his brother but states that his brother might have brought the same for use.St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 6
PW4 Azad Singh Hooda is the maternal uncle of the deceased who has deposed that he is the registered owner of Passion Plus motorcycle bearing no. HR-12H-3823. According to him, at the time of seeking registration of the motorcycle he was given a kacchi slip (temporary slip) by the registration authority, Rohtak mentioning the registration no. to be 3822, photocopy of which slip is Mark X on the basis of which he got painted the number on the motorcycle as HR-12H-3822. He has deposed that the motorcycle had been taken by his nephew Harish a few days after its purchase and the same remained in his possession till the date of occurrence. The witness has also deposed that the registration certificate mentioning the number to be HR-12H-3823 was issued to him about one month after the date of registration.
In his cross-examination the witness has admitted that a vehicle at the time of its delivery from the showroom has to be compulsorily insured. He has produced the photocopy of the cover note of insurance police with respect to the motorcycle which is Mark Y. He has deposed that no inquiries were made by the police from him and he does not remember if he had signed any document on 21.4.2006. The witness has also deposed that he came to know about the involvement of his motorcycle in the occurrence on the day he came to know that Harish Rana had been murdered.
PW5 Anil Rana is also the elder brother of deceased Harish Rana who has deposed that on 20.4.2006 he left Gurgaon at about 7:30 pm and was on the way via ESI Hospital where he reached at 9:45 pm. According to him, he saw that his brother St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 7 Harish Rana was standing with the accused Harish Dua on a rehrai of eggs and both of them were talking with each other. He has deposed that he was travelling by a bus and after he alighted from the bus and was walking towards his house, findings his brother at the spot he advised him to return home as it was late. The witness has further deposed his brother told him that he would follow him and asked him to move ahead after which he returned home and went off to sleep but his brother Harish Rana did not return that night. PW5 has also deposed that his brother Harish Rana was engaged in the business of financing and was also working with his other young brother namely Rakesh Rana at his factory and Harish Rana (deceased) had told him that he had financed some amount to Harish Dua which he was not returning and therefore, there were some differences between them. According to him, on 21.4.2006 at about 8:30 am in the morning he had received a call from his brother Rakesh Rana asking him to reach ESI Hospital near bus stand. According to the witness, he walked upto the bus stand and saw the dead body of his brother Harish Rana lying near the office of the Executive Engineer, Flood Office near boundary wall of Shivaji Park with traces of blood flowing from forehead to mouth and police officials thereafter removed the body to DDU Hospital where its postmortem was conducted. He has deposed that it was on the basis of the postmortem report that it was revealed to him that his brother had been shot dead. The witness has identified his signatures on the receipt of the dead body which is Ex.PW5/A. St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 8 In his cross-examination the witness Anil Rana has specifically deposed that they all lived in the same house along with their mother but he is not aware if his mother or wife of the deceased or any other family members were disturbed on account of absence of deceased on the night intervening 20th and 21st of April 2006 as he had gone off to sleep. According to him, he in routine used to return home by 9:30 pm and on 21.4.2006, when he had woken up at 8:00 am Rakesh Rana was not at home. He has specifically deposed that he is not aware if and when the police had come to their house in the morning and informed Rakesh about the discovery of the injured Harish Rana and according to him, when he reached the spot between 8:00 am to 8:30 am Rakesh Rana was already present there and he had no time to ask him about the manner of his receiving the information. Anil Rana has further deposed that before receiving the information from Rakesh none of his family members had told him about the occurrence. He has stated that his statement was not recorded by the investigating officer in the morning at the police post nor any inquiries were made from him except regarding his relationship with the deceased. According to him, at the time when he saw the dead body, it did not come to his mind that he had seen the deceased at ESI hospital on the previous night and he did not tell his brother Rakesh that he had seen deceased with the accused at ESI hospital since they had not come to know the cause of death by then. The witness has also deposed that even at the time of knowing the cause of death, he did not tell Rakesh about the previous night and St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 9 he only disclosed this fact to his brother Rakesh after the last rites at their home. He has also deposed that there was no discussion in the house as regards the cause or manner of death. The witness is not aware the details of the business of his deceased brother. According to PW5, deceased had told him about a month prior to the occurrence that he was having differences with the accused on account of some loan extended to him.
PW6 Shankar Kumar has deposed that he was working in factory no. A 104, Sudershan Park which is owned by Mr. Bobby and 4-5 other boys also work in the same factory and he used to lock the factory premises at night. According to him, on 20th of a month about two and half years earlier (from the date of his deposition) he locked the factory at about 9:00 pm after his employer had left and when he went to the office portion of the factory to lock the same, Rana and Dua were found sitting in the office and consuming liquor. He has deposed that he requested them to leave as he had to lock the office on which both of them went out of the office and left for their respective houses and Rana (deceased) went on his motorcycle alone.
The said witness has turned hostile and therefore, he was examined by the Ld. Addl. PP for the State wherein he has admitted that he locked the office after both Rana and Dua vacated the same. He has, however, denied that accused Harish Dua and deceased Harish Rana went together on the same motorcycle. He has been confronted with his statement Ex.PW6/DA wherein the said fact is recorded. He is also not aware if Vipin Sikka had come St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 10 to the factory on that day and had left after some time.
In his cross-examination by the Ld. Defence counsel he has deposed that he knew Harish Rana since last three years prior to 20.4.2006 who used to visit the office of Rajeev Verma often and consumed liquor in the office. PW6 has deposed that on the next day at about 8:30 am when he joined duty he came to know that Harish Rana had met with an accident and he called up Rajeev Verms who told him to close the factory. According to the witness, no inquiries were made from him by the police on that day and he remained in the police post for about half an hour and then went back. He is not aware if Rajeev Verma was detained at the police station for about 4-5 days. The witness has further deposed that he knew Vipin Sikka who was also a frequent visitor to their factory and used to consume liquor with Harish Rana. He has further deposed that he did not visit the office on 20.4.2006 between 8 pm to 9 pm but he was present in the factory portion and therefore, he is not aware as to who had visited the office between 8 pm to 9 pm. PW8 Rajeev Verma has deposed that he had been running a factory of manufacturing a spare part (Stem) for Auto Bulbs at Sudershan Park and he knew the deceased Harish Rana.
According to him, on 20.4.2006 he along with Harish Rana (deceased) had gone to Pusa Road on the motorcycle of Harish Rana for supplying the Auto Stem and when they were returning at about 7:45 pm the accused Harish Dua met them at Moti Nagar near Talwar Fish Corner where there was a talk between Harish St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 11 Rana and Harish Dua. The witness has further deposed that the deceased purchased liquor from the liquor vend after which they went to his factory where two persons namely Munna and Kalu were present who were consuming liquor at that time and Harish Rana also joined them. PW8 has testified that thereafter Vipin Sikka and Harish Dua the accused reached the factory and after sometime accused left the factory on seeing that Kalu, Munna and Harish Rana were consuming liquor. According to the witness, accused did not speak to any person, but Vipin Sikka however stayed back and sat with him as they were both non-drinker. He has further deposed that at about 8:25 pm he decided to leave his office on which his labour Shankar, who was assigned the work of locking the office, requested him to ask Harish Rana, Munna, Kalu and Vipin Sikka to vacate the room by 9 pm and accordingly he requested them to leave by 9 pm. The witness has testified that thereafter he left his factory accompanied by Munna and Kalu had left the factory and he directed Shankar to lock the office by 9 pm. PW8 has further deposed that on the next day at about 10 am he received a phone from police post Raghubir Nagar that Harish Rana had expired in an accident and from the police post Bittu @ Rakesh Rana the brother of deceased also spoke to him on phone on whose request he reached the police police and told the police officials regarding the presence of above mentioned persons in his factory before 8:25 pm. According to him, he asked his labour Shankar as to what had happened on the previous night on which Shankar told him that he had locked the office at 9 pm but he did St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 12 not tell him about the presence of accused Harish Dua in the office with Harish Rana at the time of locking the office.
The witness has been declared hostile by the prosecution and was therefore, cross-examined by the Ld. Addl. PP for the State wherein he has deposed that he was interrogated by the police and his statement was recorded. He is unable to tell if accused Harish Dua had spoken to Harish Rana when he (accused) visited his office at about 8 pm. The witness has deposed that he did not state to the investigating officer that Harish Dua had spoken to Harish Rana at that time. He has been confronted with his statement Mark X where the said fact has been recorded. He has admitted that his labour Shankar had told him that Vipin Sikka had also left his office shortly after he had left the same and that Shankar did not tell him that Harish Dua and Harish Rana had left the office for their respective houses. PW8 has also admitted that Shankar had told him that he (Shankar) had locked the office after Harish Dua and Harish Rana left the place.
In his cross-examination by the Ld. Defence counsel the witness has deposed that he knew deceased Harish Rana since childhood and that deceased Harish Rana had been gifted a Splendor Motorcycle in his marriage about 4-5 years prior to occurrence and the deceased had purchased Hero Honda (Passion) 2-3 days before the incident. According to the witness, Harish Rana used to drive the Splendor (older vehicle) and was using the same on the day of occurrence and he had gone with Harish Rana to Pusa Road and returned on this very motorcycle. He has further St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 13 deposed that Harish Rana had consumed about one peg by the time he left the office and he did not notice if there were some eatables with them. According to him on 21.4.2006 police made inquiries from him at the police post Raghubir Nagar and he did not go to his office on that day. He has testified that his statement was not recorded in the evening of 21.4.2006 as he had drunk and he was detained at the police post for the night and he remained there for the next 4-5 days. The witness has further deposed that Shankar was also called to the police post but the statement of Shankar was not recorded in his presence.
PW9 Puran Chand is a Driver (Lifeguard) by profession and has deposed that about 3-4 years earlier (from the date of his deposition) two police officials came to his residence and brought him to police station Rajouri Garden where the accused Harish Dua was also present who led them to Ganda Nala and pointed out from the bridge of nala that he (accused) had thrown a katta in the nala. According to the witness, he dived and swam in the nala for about half an hour and retrieved the country made pistol which he showed to the accused and police officials which the accused identified to be the one which he had thrown in ganda nala. He has testified that there was mud on the country made pistol and it was taken to the police station where on opening an empty cartridge was found after which the sketch of the katta Ex.PW9/A and that of cartridge which is Ex.PW9/B was prepared after which the same were seized vide memo Ex.PW7/A. PW9 has deposed that he had a tea shop which he run for 8 months in a year St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 14 since he is employed by the MCD only for 4 months during the rainy season. The witness has correctly identified the accused Harish Dua in the court as well as the case property i.e. the katta which is Ex.P-3 and the cartridge which is Ex.P-2.
In his cross-examination the witness has deposed that he do not work for Delhi Police but he work for MCD and he had been issued appointment letter and has been given appreciation certificates for his duty as lifeguard on the Yamuna Bank. According to the witness, he had appeared as a witness several times for various police station since he had retrieved many dead bodies also. The witness has been confronted with his statement Ex.PW9/DA where the fact of his operating a tea shop is not mentioned. He has admitted that when he reached the police station he was told by the police officials that they have to visit a particular spot to retrieve a katta from the nala. The witness has testified that the depth of water was 8 to 10 feet and the water was flowing and that no document was prepared regarding the statement made by accused about the manner of throwing of katta and the spot of throwing the same. PW9 has also deposed that large number of public persons had gathered at the time of recovery of katta and he is not aware if any public person signed the documents which were prepared at the police station. He has deposed that the sketch prepared by the investigating officer was of the same katta which he had recovered and which was stained in mud at the time of recovery.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 15PW10 Vipin Sikka is a friend of accused Harish Dua. He has deposed that the accused resides in Sudershan Park and he knew deceased Harish Rana who also lived in Sudershan Park. According to him, deceased Harish Rana was engaged in the business of manufacturing auto bulbs and had given some loan to the accused which was probably Rs.10,000/- and there was some dispute between the two. He has testified that the deceased Harish Rana demanded interest at exorbitant rate and used to abuse the accused for non payment of the interest and principal. PW10 has further deposed that accused had confided in him that he was unable to re-pay the amount. The witness has further deposed that accused had been married about 8-9 months prior to the death of Harish Rana and that Harish Rana was in habit of using foul language for demanding his repayment but accused never told him of any talk by the deceased involving the wife of accused. He has testified that on 20.4.2006 the accused called him up on his land- line phone bearing no. 25179508 by using his mobile phone which call was attended to by his wife but the accused wanted to speak to him on which he attended the call and the accused told that he had some urgent work and wanted to see him immediately but he declined to meet him. He has further deposed that accused did not tell him anything about the death of deceased Harish Rana.
The said witness was declared hostile on this point and was therefore cross-examined by the Ld. Addl. PP for the State wherein he has admitted accused used to meet him very often after finishing the day's work and that the deceased was also engaged in St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 16 the business of money lending at high rate of interest. He has further admitted that deceased had also physically assaulted the accused on account of non payment of loan amount and that in the month preceeding the death of Harish Rana, he (Harish Rana) extremely harassed the accused to a large extent for repayment of interest and loan amount. The witness has also admitted that the accused had told him that he could not tolerate the harassment and torture meeted out by the deceased and that on 20.4.2006 in the evening hours he met the accused who told him that he could not any more tolerate the misbehaviour of the deceased.
He has deposed that in the evening of 20.4.2006 deceased also came along with Rajeev Verma @ Bobby where he himself and accused were present on a Dhaba at Moti Nagar and there was a talk between the deceased and the accused.
However, PW10 has denied that accused had taken a loan of Rs.35,000/- from the deceased and that deceased used to impose penalty on daily basis for failure to repayment of the amount. He has further denied that the deceased had suggested to the accused that he (accused) should sent his wife to him and that the total amount due towards the deceased had increased to Rs. One lakh and he started talking irresponsibly about the wife of accused on which the accused had stated that he would now kill the deceased. The witness has also denied that one day accused showed a katta to him and said that he would kill the deceased since he (accused) was left with no other alternative on which he had advised the accused not to take extreme steps. PW10 has St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 17 denied that the accused told him that he would finish off the deceased. He has deposed that he did not state to the investigating officer that accused had telephonically called the deceased at Moti Nagar Dhaba on the pretext of consuming liquor or that immediately on his arrival, deceased started abusing the accused and demanded money from the accused on which the accused stated that he would clear the account very soon. He has denied that thereafter all the four of them went to the factory of Rajeev Verma @ Booby and that at about 10:45 pm accused called him up and told him that he had shot dead Harish Rana. The witness has been confronted with his earlier statement made to the police which is Ex.PW10/A wherein the aforesaid facts, which he has denied, are mentioned.
In his cross-examination the witness has deposed that he had never taken any loan from the deceased and no transaction of loan to any person was done in his presence. He has admitted that accused had well settled business and is the only son of his parents and that there are no dependents upon his father. According to the witness, accused is engaged in the business of supply of electrical cables and he never given any loan to any person nor the accused demanded any loan from him. He has further deposed that on 21.4.2006 at about 10:30 am he came to know that Harish Rana had expired and police came to his house on 22.4.2006 and took him to police station in the morning hours. He has admitted that he was detained in the police station from 22.4.2006 till 25.4.2006 and was also produced in the court with St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 18 accused Harish Dua. PW10 has testified that he was let off by the police on 25.4.2006 and his statement was recorded by the police on 25.4.2006.
Medical Witnesses:
PW 14 Dr. L.C. Gupta has deposed that on 21.4.06 he was posted in DDU Hospital Mortuary and on that day he conducted postmortem on dead body of Harish Rana aged about 36 years, male. According to him, the body was sent to mortuary by Inspector Jaiveer Singh with an alleged history of the body being recovered by the investigating officer near sub way ESI Hospital, Ring Road, Delhi vide PM No.304/2006. He has deposed that the dead body was of a male person having six ft height and who was well built and nourished and it had a tatoo of name mark "Harish Rana" in Hindi over the anterior aspect of right forearm. The witness has further deposed that there was red shirt, blue jeans, black pant, black vests, white socks, white shoes and blue underwear on the body and both eyes of the dead body were closed and conjunctiva were pale, mouth was closed and dried up blood was present over the face and inside the scalp hairs, rigor motives was present all over; postmortem staining was present at face, front of whole chest and frontal aspect of upper limbs left side chest its dorsolateral aspect, at left arm at its back and postero medial aspect of both arms. According to the witness, apart from the postmortem staining over these area there was postmortem staining at back of chest, abdomen and dependent parts but it was not so St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 19 marked and it was faint in colour. He has proved that following injuries were present over the dead body:
1. A reddish colour abraded bruise of size 0.2 cm x 0.2cm present at medial aspect of right side knee.
2. A reddish colour abraded bruise with swelling present of size 6 cm x 4 cm, present at forehead.
3. Multiple abrasion of different size and shape, between 0.2 cm x 0.2 cm to 0.5 cm x 0.5 cm present at right side forearm all over and at places. Colour of these was red.
4. There was a entry wound of size 2 cm x 2 cm into circular shape present near nape at back of head. It was skull deep with typical sign of seinging, burning and tattooing was also present around it in an area of 3cm x 3 cm surroundings. The margins were inverted and raged in curcial lacerated form.
Tattooing were also present at dorsom of left hand and on opening the skull lacerated rent recovered along with a track communicating upto the right side frontal region of the brain. The track contained pieces of fractured occipital bone and at the end of the track a metal bullet found lodged which was entangled in the fractured skull and scalp tissue.
The witness has further proved that on further opening of the body, following internal findings were revealed:
Head: Scalp, skull and brain were injured and on further dissection there was subarchnoid subdural and extradural collection of blood in the right side of skull cavity.
Neck: No abnormality detected.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 20
Chest: No abnormality detected.
Heart & Lung: No abnormality detected
Abdomen: No abnormality detected, stomach was empty, healthy and internal visceras were NAD, rectum was empty, bladder was NAD and its spinal column was NAD.
According to PW14, the bullet recovered from the head of body and the blood as well as the clothes of the deceased were preserved, sealed and sealed in a pullanda with the seal of DFMT of DDU Hospital and handed over to the investigating officer for FSL, along with 24 photographs which were taken during the autopsy by the investigating officer after calling a private photographer. The witness has proved that the cause of death in this case was shock resulting from extensive cranio cerebral damage (Head injury) consequent upon projectile fire arm weapon injury caused by the other party which was sufficient to cause dead in ordinary course of nature and the postmortem findings were consistent with postmortem shifting of the dead body along with involvement of more than one person in the crime. Time since death was also given which was about 12-18 hours prior to postmortem examination. He has proved his detailed report which is Ex.PW14/A. According to the witness, subsequently an application was moved by Inspector Jaiveer Singh seeking clarification as regards the opinion given by him in his autopsy report regarding the observation "Shifting of dead body and involvement of more St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 21 than one person" and on the said application, he had vide his endorsement dated 6.6.06 which is Ex.PW14/B had advised the investigating officer to revisit with original inquest papers and the evidence collected during investigation well supporting the view which the investigating officer narrated in the said correspondence and thereafter the investigating officer did not come back to him again thereafter for seeking opinion.
The witness has been shown a bullet head lying in cotton taken out from a plastic box on which he has deposed that the said bulled head must be the said bullet Ex.PX1 which was taken out during the course of autopsy from inside the skull cavity of the deceased.
On specific court question the witness has deposed that it was a dead body of a six ft height well developed and well nourished person and the postmortem staining was fixed at two different area and aspects of the dead body and that too in two different identifiable colours. At one set of aspect of the body the postmortem staining was marked in colour and at the other set of aspect of the body the postmortem staining was faint in colour. The first set of aspect which was marked in colour was at face, front of whole chest, frontal aspect of upper limbs, left side chest dorsolaterally, left arm at back and posteromedial aspect of both arm and the faint postmortem staining was on back of chest, back of abdomen and independent parts. The two colours of postmortem staining and that too at different set of aspect of the body can only be possible when the dead body has been shifted St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 22 from one site to other and that too before the fixing of postmortem staining and moreover, a dead body of such a well built, nourished and of height cannot be shifted by a single person on Ring Road.
The said witness has been duly cross-examined by the Ld. Addl. PP for the State wherein he has deposed that being an autopsy surgeon they usually mention only the positive findings i.e. whatever came to his notice during the course of examination was duly mentioned in the report. According to the witness, after death the coagulation of blood procedure stops immediately as it depends upon the enzymic reaction and has denied that coagulation of blood usually commences after about 4 hours of the death. He has also deposed that coagulation of blood has hardly any relation with postmortem staining which is a postmortem procedure and relates directly to the gravitational force of the earth in which the blood which remains in small tributratries shifts towards the dependent part after rupturing the vessels because of set up of anoxia (lack of oxygen in the blood as well as in the tissues). The witness has further deposed that he did not notice any coagulation of blood in the present case and since he did not find any change in the visceral organ, so he had mentioned " NAD" i.e no abnormality detected. According to him, it is not necessary that in the dead body along with the appearance of external postmortem staining, internal hypostasis also takes place in the dependent portion of the visceral organs and has deposed that he did not notice cardiac polypi. PW14 has also deposed that he did not carry any X-ray of the dead body and he prepared the postmortem examination report just after St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 23 completing the postmortem examination in his office and not in the mortuary. He has further deposed that he personally handed over the postmortem report along with the inquest papers and also the photographs to the police official against receipt but he is not aware if he had handed over the postmortem report on 20.5.2006. The witness has also deposed that initially at the time of postmortem examination they prepared rough notes and thereafter on the basis of it, the final report is prepared but he did not hand over the said rough notes to the investigating officer. PW14 has also deposed that as per medical jurisprudence the objectives of carrying out postmortem examination on a dead body are:
1. This is an essential step and one of the legal necessity in the procedure of criminal investigation carried U/s 174 Code of Criminal Procedure and this shall be taken by the investigating officer as per Punjab Police Rules.
2. It is the essential duty of state government as the crime is always against the state.
3. An autopsy surgeon has to give his opinion qua the cause of death and mode of death along with other things like the weapon used, time since death and other things which are having bearing on the case for the benefit of the investigation and the investigating agency and further to assist the court at the time of trial.
He has further deposed that as per the inquest papers received by him the information about the crime was received by the police at 6.18 am on 21.4.06 and therefore, the dead body must St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 24 have been recovered thereafter only and it was received at around 2.00 pm on 21.4.06. According to PW14, his role comes into the picture only when the dead body is laid down on the table of the mortuary for postmortem examination and prior to that the body remains in the custody of police officials, even when it is kept in cold storage of the mortuary and the hospital staff is only there to assist them but it is only the investigating officer who remains in custody and in charge of the body and even he deputes his constables to be on duty in this regard and therefore, he is not aware as to in what condition the dead body was brought to the mortuary. He has denied that in connection with the application dated 25.5.06 moved by investigating officer Inspector Jaiveer Singh regarding subsequent opinion, he had contacted him a number of times but he deliberately did not give the subsequent opinion and has deposed that the investigating officer never turned up with the original documents which he had asked for. He is not aware if the investigating officer recorded DD No. 68B dated 9.6.06 PS Rajouri Garden or not as investigating officer never turned with the original documents. He has denied that he inspected the spot and has stated that in case if he would have inspected the spot, then he would have made a report in this regard in the documents prepared by him and would have given it to the investigating officer for placing on the file. According to the witness, his opinion that the dead body of such a well built, nourished and of height cannot be shifted by a single person on ring road is based on the presence of two set of postmortem St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 25 staining marks of different duration and at the spot there ought to have been a plenty of blood about which the investigating officer has not mentioned anywhere in the inquest papers. The witness has admitted that in the newspaper Dainik Jagran dated 2.1.2008 and 7.1.2008 news items published which are Mark PW14/X were relating to him. He has deposed that the allegations made against him as per the said news articles have been verified by constituting different Boards at the end of Hon'ble Health Secretary, Chief Secretary and Hon'ble LG Delhi and all the three have exonerated him from the allegations made against him by mentioning a wording that "none of the allegations found true against Dr. L. C. Gupta and all allegations were made by the police personals who have their vested interest" and even the allegations against him by DG Prisons, Sh. B.K. Gupta were also found to be not true which were with regard to three different postmortem reports which were conducted by a Board of doctors which was constituted either by the orders of Ld. Metropolitan Magistrate or SDM. The witness is not aware as to whether in any case any review board was established which reversed his findings and has deposed that the board constituted in various cases on the request of police was not in consonance to the provisions of law.
It may be observed that during the cross-examination by the Ld. Addl. PP, this witness Dr. L.C. Gupta protested at the manner in which the Addl. PP was cross-examining him stating that the nature of questions which have been put to him have never been put to him in any other case in which he carried out the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 26 postmortem examination and from the nature of questions it appeared that the Ld. Addl. PP was rather helping the defence by devaluing the evidentiary value of the postmortem examination. It was duly observed by the Ld. Predecessor of this court that all such evidentary value of the deposition of the witness which include his cross examination by Ld. APP besides the documents prepared by him shall be considered at the time of final judgment.
In his cross-examination by the Ld. Defence Counsel the witness has admitted that Rigor Mortis is a continuous process which normally sets in after 2-3 hours of death and continues till about 12 hours to completely set in and thereafter remains in that position for another 12 hours and thereafter it starts receeding. According to him, Rigor Mortis normally starts from small joints and during the postmortem examination he did not notice any smell of alcohol or any other smell in the body. He has further deposed that the photographs of the dead body are got conducted by the same investigating officer who brought the inquest papers and the investigating officer remains present inside the autopsy room. After seeing the photographs, the witness has stated that the head of the bullet is visible embedded inside the brain tissue and there is no photograph available in the photographs now on the judicial file of the bullet after it was taken out. He is not aware as to whether any such photograph was taken or not and admits that the 24 photographs now available on judicial file do not bear his St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 27 signatures. According to Dr. L. C. Gupta (PW14), the endorsement "Blood, clothes, bullet sealed and handed over to IO for CFSL alongwith 24 photos which were taken by IO himself at time of postmortem through private photographer" was mentioned at the same time when the postmortem examination report was prepared but in practice the same are handed over immediately after the postmortem examination and prior to writing of the report. He does not remember as to when he wrote on document No.1 of the inquest papers that "total (12) I.P. R. and HO to IO with photographs". He has deposed that the endorsement encircled in red on the postmortem examination report at point X is made in routine course and the photographs were collected by the investigating officer from private photographer directly as it is the responsibility of the investigating officer to bring the photographer and to get the procedure photographed and thereafter to collect the photographs and similarly, the blood, clothes and bullet, pullandas are prepared immediately after the postmortem examination and are directed to be collected by the investigating officer then but if the investigating officer himself chooses not to collect it, then it is the responsibility of the investigating officer and they do not mention it as a routine in their report. The witness has denied his handwriting on the reverse of page no.1 of inquest paper which is Ex.PW14/DA and the photocopy shown by the defence counsel is Ex.PW14/DB.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 28Police/ officials witnesses:
PW2 HC Bhagwati Prasad is the duty officer who has deposed that on 21.4.2006 at about 7:05 pm Constable Kishan Gopal brought a rukka which was sent by Inspector Jaibir Singh on the basis of which he recorded FIR No.387/06, carbon copy of which is Ex.PW2/A. According to the witness, he recorded Kayami DD no. 8A which respect to the present FIR and after recording the FIR he made endorsement on the rukka which is Ex.PW2/B. He has deposed that after registration of FIR, copy of the FIR and rukka was sent to the spot through Constable Krishan Gopal for further investigations by Inspector Jaibir Singh. The witness has further deposed that the special report to senior officers was sent through special messenger i.e. Constable Rajesh Kumar and the copy sent to the Ld. MM through special messenger is Ex.PW2/C. In his cross-examination the witness has admitted that the entire bunch of the certifies copies of the FIR issued by the trial court along with application for inspection is Ex.PW2/DA. He has deposed that the FIR register contains one original FIR and three copies. He has admitted that the FIR register pertaining to the present FIR contains three pages written in ink with respect to the present FIR and has deposed that no carbon copy of the present FIR is contained in the register. According to him, number 11417 printed at the top right hand corner of each page of the FIR refers to the book number and there can be only one register with this St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 29 number. He has further deposed that as per the DD register special messenger returned to the police station after giving a copy to the Ld. MM at 11:25 pm on 21.4.2006 and the relevant entry is at serial no. 12A, copy of which DD No. 12 A is Ex.PW2/DA. He has admitted that first 25 FIRs in the present register bear book no. 11171 and has stated that the remaining 25 FIRs bear book no. 11417.
The said witness has been re-examined by the Ld. Addl. PP for the State wherein he has deposed that on 21.4.2006 he recorded the initial Kayami DD regarding registration of FIR No. 387/06 in the daily diary register vide DD No. 8A after which he recorded the FIR No. 387/06 and thereafter enclosing Kayami DD in daily diary register vide DD No. 9A. Copy of the DD No. 8A is Ex.PW2/D and copy of the DD No. 9A is Ex.PW2/E. The witness has also deposed that first page of Ex.PW2/C is in ink whereas the other pages are carbon copies and according to him, while preparing the FIR one carbon paper was inadvertently not put by him and therefore, he wrote page no. 1 in ink subsequently.
PW11 HC Jaiveer Singh has deposed that on 21.4.2006, he was posted as photographer in Mobile Crime Team, West District and on that day at about 7.00 am after receiving wireless message he along with In-charge Crime team reached the spot i.e. Opposite ESI Hospital, Executive Engineer (Flood) Office Road, near Shivaji Park boundary wall where they met Inspector Jaiveer Singh along with other staff. According to him, at the instance of the investigating officer he took 7 photographs of dead St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 30 body and of the spot, negatives of which are Ex.PW11/A1 to Ex.PW11/A7 and the photographs are Ex.PW11/B1 to Ex.PW11/B7.
In his cross-examination the witness has deposed that the dead body was of a male in a sitting posture near a wall and the head of the deceased was tilting towards the wall as if the same was resting on the wall. According to him, the dead body was in a stiff/rigid position and in his presence the crime team officials did not touch the dead body and when he was taking the photographs then the body was turned also in order to take photographs of its face. On being asked as to whether he had taken the photographs of the body when its head was resting with the wall, the witness deposed that the head of the body was never resting with the wall. The witness has further deposed that he did not take photographs of any mobile phone at the spot nor he saw see any mobile phone at the spot.
PW12 Ct. Ashok Kumar has deposed that on 21.4.06 he was posted in Traffic Circle, Rajouri Garden and was working as driver of TI, Rajouri Garden. According to him, as a routine he used to check the ring road area falling within the traffic circle of Rajouri Garden so as to check whether any vehicle etc. is parked over there which is not in a running condition and similarly, on that day also at around 6.00 am he started on his routine checking. He has deposed that at about 6.10 am when he reached near ESI Hospital, he found one black colour motorcycle bearing no. HR 12 H 3822 parked on the road side opposite the ESI Hospital and no St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 31 one was present near the motorcycle on which he looked around and found that about 10-15 ft away near the wall of a nearby park a person was seen by him in a sitting posture near the wall and the knees of the said person were touching the ground and his head was touching the wall in front of him. He has also deposed that he noticed blood dropping down from the head and face of the deceased. According to him, he had observed the said person from a distance of about 3-4 feet who appeared to be dead and his body in rigid condition on which he rang up PCR at No.100 through his mobile phone No. 9868007719.
PW13 HC Raj Kumar is a formal witness being the MHCM who has deposed that on 21.4.06 investigating officer Inspector Jaiveer Singh deposited in the malkhana one mobile phone make SAMSUNG having IMEI No. 05-11-03215062922- 20E50788, one purse of brown colour containing Rs.850/-, one driving licence of Harish Rana, some visiting cards and some slips. According to him, on that day the investigating officer also deposited 4 sealed parcels sealed with the seal of JS alleged to be containing:
1) Two cigarettes make Gold Flake 2) Blood stained earth 3) Earth control 4) Blood gauze
The witness has further deposed that the investigating officer had also deposited one motorcycle No. HR 12H 3822 and three sealed pullandas sealed with the seal of DFMT DDU hospital St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 32 alleged to be containing (i) clothes of the deceased (ii) Blood sample of the deceased and (iii) one bullet recovered from the body of the deceased pursuant to which he made entry at serial No. 4982 of register No. 19. He has also deposed that on 24.4.2006, the investigating officer Inspector Jaiveer Singh had deposited one sealed pullanda sealed with the seal of JS alleged to be containing one T Shirt and one pant of accused and he made entry in this regard at Sl. No. 4988 of register No. 19. He has also deposed that on 26.4.2006 investigating officer Inspector Jaiveer Singh deposited one pullanda sealed with the seal of PY alleged to be containing one desi katta and one empty cartridge and entry in this regard is made at Sl. No. 4995. PW13 has proved that on 30.5.2006, 8 exhibits of this case along with three sample seal and FSL form were sent to FSL Rohini through Ct. Vinod Kumar on the instructions of investigating officer and after depositing the same, Ct. Vinod Kumar deposited the receipt with him. According to the witness, thereafter on 14.11.2006, ASI Om Parkash deposited six pullandas sealed the seal of FSL with FSL result which was handed over to investigating officer Inspector Jaiveer Singh. He has also deposed that on 01.5.06 Inspector Jaiveer Singh had deposited two pullandas sealed with the seal of FSL. He has proved that the sealed pullandas remained intact during his custody and he did not tamper with the same nor he allowed anyone to tamper with it. He has placed on record the relevant entries of register No.19 which are collectively Ex.PW13/A and the copy of RC which is Ex.PW13/B. St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 33 PW15 SI Lalit Kumar has deposed that on 21.4.06 he was posted as Incharge Mobile Crime Team, West District and on that day after receiving the information he along with his staff reached near park grill, outside the office of Executive Engineer (Civil) Basai Dara Pur, opposite ESI Hospital. He has deposed that there they met the investigating officer Inspector Jaiveer Singh, SI P.C. Yadav and other police officials, where one dead body wearing red shirt, blue jeans and white sports shoes, golden kara in hand and chain in neck, lying near park wall and blood was coming from the head. He has also deposed that a motorcycle Hero Honda No. HR 12 H 3822 was also there after which he inspected the spot and took the photographs. The witness has deposed that no chance prints was found there after which he prepared his report which is Ex.PW15/A. PW16 SI Mahesh Kumar has deposed that on 20.5.2006, he was posted at as a draftsman in Crime Branch and on that day he was called by the investigating officer Inspector Jaiveer Singh at police station Rajouri Garden from there he along with investigating officer Inspector Jaiveer Singh reached the spot i.e near ring road, Office Executive Engineer (Civil), Irrigation and Flood Control Department, Govt. of Delhi. He has deposed that on the pointing out of the investigating officer Inspector Jaiveer Singh he took rough notes of the place of occurrence and on the basis of those rough notes he prepared scaled site plan Ex.PW16/A with its correct marginal notes on 08.6.06 and handed over the same to the investigating officer. He has further deposed that he destroyed the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 34 rough notes after preparing the scaled site plan.
PW17 SI P.C. Yadav has deposed that on 21.4.2006 he was posted as Incharge Police Post PP Raghubir Nagar, Police Station Rajouri Garden and on that day in the morning at around 6.15 am he received DD No.37 which was already marked to ASI Abhinandan. He has deposed that after receiving the information he along with Ct. Hari Darshan reached the spot i.e. Ring Road, near Executive Engineer Office, Flood Control where one dead body was found near the boundary wall of Shivaji Park which was in sitting posture and the forehead of the deceased was towards the boundary wall. According to him, there was some blood on the forehead of the dead body, one golden chain was there in the neck of deceased and one gold kara and one motorcycle, Hero Honda was lying there and near the dead body two cigarette of Gold Flake and One mobile phone SAMSUNG were lying. He has deposed that the purse of the deceased was checked which was containing one driving licence in the name of Harish Rana R/o A 128 Sudarshan Park, Rs.850/- and some visiting cards after which information was sent to the house of the deceased pursuant to which one Rakesh came to the spot and identified the deceased as his brother as Harish Rana. The witness has deposed that in the meanwhile Inspector Jaiveer Singh reached the spot who recorded the statement of Rakesh Rana, the brother of deceased and he called the crime team and crime team inspected the spot and took the photographs. The witness has also testified that the mobile phone and the purse of the deceased were seized vide memo St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 35 Ex.PW17/A and the investigating officer also lifted two cigarettes of Gold Flake lying at the spot, blood stained earth, earth control and blood and after putting the same into different pullanda they were sealed the seal of JS and seized vide memo Ex.PW17/B. PW17 has proved that the Motorcycle Hero Honda was seized vide memo Ex.PW17/C and the seal after use was handed over to ASI Abhinandan after which the investigating officer prepared the inquest papers and the dead body was sent to DDU Hospital mortuary. He has also deposed that thereafter they reached in the hospital and postmortem examination on the dead body was got conducted after the identification of the dead body by witness Akbar and Rakesh Rana vide Ex.PW1/A and Ex. PW17/D. He has testified that after the postmortem dead body was handed over to the relatives of the deceased and the doctor handed over to the investigating officer three pullandas alleged to be containing clothes of the deceased, blood in gauze pieces and the third pullanda contained the bullet recovered from the head of the deceased alongwith the sample seal, which were seized vide memo Ex.PW17/E. The witness has further deposed that thereafter, the investigating officer recorded statement of Rakesh Rana, the brother of the deceased and prepared rukka and handed over to Ct. Krishan Gopal for getting the FIR registered after which he alongwith the investigating officer reached the spot and in the meantime Ct Krishan Gopal returned at the spot and handed over the same to the investigating officer copy of FIR and original St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 36 rukka. According to him, on 23.4.2006 he remained in investigation of this case along with Inspector Jaiveer Singh and on that day at around 4.00 pm Inspector Jaiveer Singh received a secret information that one Harish Dua S/o Ram Lal who was not turning up for investigations has come to his house and is in hurry to leave for somewhere with his bag pursuant to which he along with Inspector Jaiveer Singh reached at A-159, Sudarshan Park, New Delhi where the mother of Harish Dua and his wife were present there and Harish Dua was ready to leave somewhere with a black bag in his hand. He has further stated that the investigating officer apprehended Harish Dua and on checking of the bag some clothes and towel were found and on interrogation the accused got perplexed and was not able to give satisfactory reply and after some time the accused told that he had committed the murder of Harish Rana. According to PW17, the mother and wife of Harish Dua began to create some problem and therefore, Harish Dua was taken to Police Post Raghubir Nagar where he was arrested vide memo Ex.PW17/F and his personal search was conducted vide memo Ex.PW17/G and the accused made disclosure statement which is Ex.PW17/H and disclosed that he can got recovered the katta and bullet and one live cartridge from the nala of Sudarshan Park and also the his wearing clothes which he was allegedly wearing at the time of incident. The witness has further proved that on 24.4.2006 he again remained in investigation of this case alongwith Inspector Jaiveer Singh during which the accused Harish Dua was taken out from the police lock up after which accused St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 37 took them at the place of occurrence i.e. at the ring road opposite ESI Hospital near the office of Executive Engineer, Flood and Irrigation and pointed out the place where he had fired and shot on Harish Rana vide pointing out memo Ex.PW17/J. He has further deposed that thereafter accused took them at his house i.e, A-159, Sudarshan Park and taken out one T Shirt of mahendi colour on which Top Secret was written and one pant of green colour on which label of San Patrix was affixed from the almirah and told them that these were the same clothes which he was wearing at the time of incident, which clothes were converted the same in pullanda by the investigating officer and sealed with the seal of JS and seized vide memo Ex.PW17/K. He has further proved that thereafter accused took them Ganda Nala Sudarshan Park towards Punjabi Bagh Club and pointed out that he had thrown the katta and one live cartridge in the nala. According to the witness, since the nala was very deep, it was not possible to search the same and help of the diver was required for searching the nala. He has proved the pointing out memo of the same which is Ex.PW17/L and has deposed that accused was produced before the Ld. MM and 5 days police custody remand was taken and thereafter accused was sent to police lock up after the medical examination.
The witness S.I. P.C. Yadav has further deposed that on 26.4.2006 he alongwith investigating officer Inspector Jaiveer, Ct. Vinod and one diver Pooran Chand who was called from Jamna Bazar to trace out the desi katta, remained in the investigation of this case and the accused Harish Dua was taken out from the lock St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 38 up and took them at ganda nala at Sudarshan Park and pointed out the place where he had thrown the weapon and cartridge. According to the witness, at the instance of accused Harish diver Pooran Chand went inside the nala and took out one desi katta from the nala which katta was stained with mud. He has also deposed that the katta was cleaned and accused Harish Dua had identified the katta and told them that it was the same katta with which he had killed Harish Rana and on checking the katta one empty cartridge was found in the chamber of the katta was taken out. The witness has proved that thereafter the investigating officer prepared the sketch of the katta which is Ex.PW9/A and empty cartridge which is Ex.PW9/B and the total length of the barrel was 16 cm; length of body was 11.3cm and length of the butt was 7 cm and the length of empty cartridge was 5 cm and diameter of the bottom was 1.5 cm. According to him, the katta and empty cartridge were put up into a pullanda and sealed with the seal of PY and seized vide memo Ex.PW7/A and FSL form was also filled and seal was handed over to him.
The witness has correctly identified the accused Harish Dua in the court as well as the case property i.e. the motorcycle No. HR 12 H- 3822 which was found at the spot from the photographs Ex.B2 and the motorcycle is Ex.P1, the empty cartridge which is Ex.P2 and desi katta which is Ex.P3; one mobile phone Samsung and one purse of brown colour containing Rs.150/-, Driving License of Harish Rana, some visiting cards and St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 39 some slips, which mobile phone and purse are collectively Ex.P4 and one T shirt and one pant belonging to the accused which are collectively Ex. P5.
In his cross-examination the witness has deposed that the inquest proceedings took place at the spot and it was done in Hindi by the investigating Officer, Inspector Jaiveer Singh. He has admitted that if the dead body is not identified request is sent to mortuary for preserving the same and that he was actively involved in the investigation on 21.4.2006. According to him, a request was sent to the mortuary for preserving the dead body which was sent by Inspector Jaiveer Singh and was in his (P.C. Yadav) handwriting. The witness has also stated that the letter of request for preserving the body which is Ex.PW17/DX-1 is not in his handwriting and it is in the handwriting of ASI Abhinandan. He has denied the suggestion that since the dead body could not be identified at the spot, therefore ASI Abhinandan had of his own sent this request. According to the witness, when he examined the dead body at the spot, the Rigor Mortis had set in and he had only taken the search of the dead body, rest the position of the dead body was not changed and was sent to the mortuary in the same position. He has testified that the crime team which had reached the spot also examined the dead body and the cause of death could not be ascertained and it was even not ascertained that the deceased had been hit by a bullet. He has deposed that at the time when they reached the spot, the PCR officials were still there and that the SHO PS Moti Nagar had also come to the spot. He has further St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 40 admitted that the officials of the PCR who reached the spot informed their control room, pursuant to which a PCR form is filled up on the basis of the information received from such officials regarding the position at the spot. The witness has further deposed that on 21.4.2006 in the morning after they had traced the brother of the deceased, they had inquired from Rakesh Rana but he did not give them any names of the suspect. He is unable to tell if Inspector Jaiveer was inside the room along with the doctor at the time of carrying out postmortem but states that while the postmortem examination was being conduct, both he and Inspector Jaiveer were present in the hospital. He has deposed that the statement of Rakesh Rana was recorded by the investigating officer in the hospital at about 6.00/6.30 pm in Hindi, in his presence and even at that time Rakesh Rana did not name anybody as suspect, though they asked him. He has further deposed that the inquest papers were not sent with the dead body and they were carried by the investigating officer to the mortuary which papers were handed over to the doctor. The witness has further deposed that at the time of carrying out the inquest proceedings they had joined Rakesh Rana, brother of accused and Akbar as witnesses and admits that no other public witness was joined. PW17 has also admitted that by 21.4.2006 they had come to know that the murder had been committed at the spot where the dead body was found and by evening they came to know that the deceased had died of a bullet injury He has also admitted that when he moves out of the police station for investigation, the ravangi is made in the register St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 41 and then thereafter the corresponding Vapsi. According to him, secret information was received by the investigating officer Inspector Jaiveer Singh at about 4.00 pm but he is unable to tell whether it was reduced into writing or not. He has deposed that he did not carry out any investigations/inquiry from any persons named Rajiv @ Bobby and Vipin Sikka nor was such inquiry made in his presence by the investigating officer from such persons. According to PW17, no person by the name of Rajiv @ Bobby or Vipin Sikka were detained in the police station for inquiry/investigations in this case. He has testified that no person by the name of Shanker was ever investigated by him nor he had seen him in connection with the present case nor his statement was recorded in his presence. After seeing the statement of Vipin Sikka U/s 161 Cr.PC which is Ex.PW10/A the witness has deposed that the same is in his handwriting which according to him, was recorded on 22.4.06 in the evening. He has denied the suggestion that Vipin Sikka had been detained in this case since 21.4.2006 for about 4-5 days continuously. According to the witness, there was no occasion to join the public witnesses at the time of arrest of accused since a problem had been created by the wife and mother of the accused, as a result of which a large number of public persons gathered at the spot and they were compelled to leave. He has also admitted that this aspect does not find a mention in his statement U/s 161 Cr.PC. and that all the formalities of arrest took place at the police post. He has further deposed that on 23.4.06 when he came to the Police Post from the house of the accused St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 42 alongwith the accused, he came via Sudarshan Park and no pointing out memo by the accused was prepared on 23.4.2006 since the accused did not point out any place of incident or recovery to him on 23.4.2006. The witness has deposed that on 24.4.2006 he did not meet Vipin Sikka after he joined investigations and he did not see Vipin Sikka even after the police remand of the accused was taken. PW17 has admitted that the application U/s 164 Cr.PC for recording the statement of Vipin Sikka is in his handwriting but states that at the time of presenting the application Vipin Sikka was not with him in the court. He has further admitted that they had taken the police remand for 5 days but he cannot tell if it was for taking the accused to Azam Garh. He has testified that the weapon of offence was not recovered on 25.4.06 and that he met Pooran Chand for the first time on 26.4.06 at about 11.00/11.30 am in the police station and as soon as Pooran Chand came to the police station he left alongwith the accused and investigating officer. He has admitted that Sudarshan Park is a thickly populated area with large number of residences and shops but states that not many people gathered at the place of recovery and the said place was a part of Najafgarh drain and the spot is separated by a boundary wall of the drain which separates it from Sudarshan Park. He has further admitted that if they stand on one side of the wall, the nala is not visible and has deposed that the nala on the other side is visible from the bridge connecting both the sides of the nala. PW17 has also deposed that at the said place the khaka and seizure memo were prepared by him on the instructions St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 43 of investigating officer and no public person was available as the documents were prepared while sitting along the nala on one of the sides. According to him, at the time when the katta was taken out from the nala, it was smudged but he is unable to tell if the finger prints would still be present on the katta despite the same being smudged with mud. He has also deposed that the diver had got the katta recovered from the drain and after cleaning the same with water and handed over the katta to them which katta was still wet after it was washed by the diver with the nala water was dried/ cleaned by the investigating officer and the khaka was prepared only after the katta was dried at the spot itself. He has testified that in the present case no bullet was recovered and only empty cartridge was recovered from the chamber of the katta and during investigations he had not seen the lead piece in connection with this case.
PW18 ASI B.D. Yadav is a formal witness who has deposed that on 20/21.4.2006 he was posted as Incharge PCR Van, Power 29 with duty hours from 8 pm to 8 am and on that day at about 6:15 am after receiving the call he alongwith his staff reached opposite ESI Hospital Ring Road where one person was sitting in the posture of urinating near the wall and on checking he was found dead. According to the witness, after some time public gathered here and thereafter SI P.C. Yadav and SHO PS Moti Nagar and SHO Rajouri Garden reached there. He has also deposed that a motorcycle no. HR-12H-3822 was parked about 10 yards away from the spot of the roadside.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 44PW19 Inspector Mahesh Kumar has deposed that in the year 2006 he was posted as Sub Inspector in Police Station Uttam Nagar and was working as Nodal Officer of the West District. According to him, he received a letter from Deputy Commissioner Office, West District bearing No. 346/DIC- M(West) dated 10.5.06 which letter is Ex.PW19/A for collecting the call details of mobile phone No. 9818539019 pursuant to which he collected the calls details for the period 10.4.06 to 21.4.06 from Bharti Tele venture Ltd. which are Ex.PW19/B and handed over to the investigating officer.
In his cross-examination the witness has deposed that the calls details which he obtained for the period 10.4.06 to 21.4.06 runs into two pages. He has further deposed that he had gone to the office of Bharti Airtel in connection with the present case and the delivery of the requisition letter is duly get acknowledged on the copy of the requisition letter which he carried.
PW20 Inspector Jaiveer Singh is the investigating officer who has proved the various investigations conducted by him. He has deposed that on 21.4.06 he was posted at police station Rajouri Garden as Inspector Investigation and on that day he received information from the Duty Officer on telephone that one dead body was lying in front of ESI Hospital near the wall of Shivaji Park pursuant to which he left his house and reached the police station and after taking his IO kit he alongwith Ct. Vinod went from the police station vide DD No.3A and reached at the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 45 spot, where SI PC Yadav, SI Abhinandan, Ct. Krishan Gopal and Ct. Hari Darshan met him. According to him, one dead body was found lying near the wall of Shivaji Park and blood was oozing out from the head was running towards the face and there was a golden chain in the neck of the deceased and a golden kara was there in the right hand of the dead body. The witness has deposed that one purse was found in the back pocket of the pants which was worn by the deceased and Rs. 850/- cash, some visiting cards and one driving licence in the name of Harish Rana S/o Balbir Singh and some slips (hisab Kitab parchi) were there in the purse. He has further deposed that through driving licence the identity of the deceased was revealed to be Harish Rana and near the dead body two cigarettes make Gold Flake were lying and at a distance of 8- 10 steps from the dead body one motorcycle make Hero Honda bearing registration No. HR-12-H-3822 was parked and one mobile phone make Samsung of white colour was also lying. PW20 has testified that the information was given at the address which was mentioned on the driving license pursuant to which the brother of deceased namely Rakesh Rana arrived at the spot and in the meanwhile Crime Team was called at the spot and the spot was got photographed and they also tried to lift finger prints from the motorcycle. The witness has proved that blood stained soil, earth control and blood in a gauze piece as well as the two cigarettes were lifted from the spot and were taken in police possession after keeping all the said articles in separate plastic containers and sealing the same with the seal of JS with the help of cloth piece, St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 46 vide seizure memo Ex.PW17/B and the purse alongwith its contents and the said mobile phone after ascertaining its IMEI number was taken in police possession vide seizure memo Ex.PW17/A. According to PW20 he thereafter got the dead body shifted to mortuary DDU Hospital through Ct. Krishan Gopal and leaving ASI Abhinandan at the spot while he along with Rakesh Rana and other staff reached at DDU Hospital and made a request for the postmortem of the deceased which request for postmortem is Ex.PW20/A after which he prepared the brief facts which are Ex.PW20/B and filled Form 25-35 (I) (B) which is Ex.PW20/C. He has deposed that the dead body was identified by one Akbar and Rakesh Rana and he recorded their statements to this effect which are Ex.PW1/A and Ex.PW17/D and after postmortem the dead body was handed over to Anil Rana vide memo Ex.PW5/A. The witness has further deposed that after postmortem the doctor informed him that a projectile of bullet i.e. a pallet (sikka/lead) was found inside the head of deceased and the doctor handed over three pullandas stated to be containing clothes of deceased, blood sample of deceased and the projectile of bullet which was found inside the head of deceased, all sealed with the seal of DFMT, DDU Hospital, to Ct. Krishan Gopal who in turn handed over the said pullandas along with the sample seal to him which were taken in police possession vide seizure memo Ex.PW17/E. He has proved having recorded the statement of Rakesh Rana which is Ex.PW3/A and prepared the rukka Ex.PW20/D which he handed over to Ct.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 47Krishan Gopal who went to the police station and after getting the FIR registered reached at the spot, where he had already reached from the hospital and there Ct. Krishan Gopal handed over the copy of FIR and original rukka to him. The witness has proved having prepared the site plan at the instance of SI PC Yadav which is Ex.PW20/E and having recorded the the statement of Anil Rana, Akbar and police officials including crime team officials. He has further deposed that on 22.4.06 he reached Police Post Raghubir Nagar where Rakesh Rana was called and interrogated regarding the friend circle of deceased Harish Rana who told that his brother was having friendship with Rajiv Verma @ Bobby and thereafter he interrogated Rajiv Verma and Vipin Sikka and recorded their statements. The witness has testified that Rakesh Rana told him that his brother Harish Rana has lent some money to one Harish Dua pursuant to which one police official was sent to house of Harish Dua but Harish Dua was not found and on 23.4.06 he along with SI PC Yadav and other police officials reached at Sudershan Park for the investigation of this case where he interrogated Rajiv Verma @ Bobby and one Shanker and recorded their statements. At about 4:00 pm he received secret information that Harish Dua S/o Ramlal who was not turning up at his house for some days, had come to his house and is in hurry to leave for somewhere alongwith his bag. The witness has further deposed that on this information he along with SI PC Yadav & other police officials reached at A159, Sudershan Park, New Delhi where they met the mother and wife of Harish Dua and the accused Harish Dua was St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 48 ready to leave for somewhere with a black bag in his hand on which the accused was apprehended. According to PW20, the accused was interrogated but the accused was not able to give any satisfactory reply and after some time the accused disclosed to them of having committed the murder of Harish Dua. However, in the meantime mother and wife of Harish Dua started creating some problem and therefore, they brought Harish Dua to Police Post Raghubir Nagar where the accused was arrested vide memo Ex.PW17/F and personally searched vide memo Ex.PW17/G. He has further proved that the accused made disclosure statement which is Ex.PW17/H wherein the accused disclosed that he could get the katta and bullet and live cartridge recovered from the nala of Sudershan park and also his clothes which he was wearing at the time of incident after which the accused was got medically examined. The investigating officer has further deposed that on 24.4.2006 accused Harish Dua was taken out from the police lockup who took them at the place of occurrence i.e. Ring Road, Opposite ESI Hospital, near the office of Executive Engineer Flood and Irrigation where the accused pointed out the place where he had fired shot on Harish Rana vide pointing out memo Ex.PW17/J. He has deposed that thereafter accused took them at his house i.e A-159, Sudershan Park and taken out one T-shirt of Mehandi colour on which "Top Secret" was written and one pant of green colour on which label "Santpatrix" was affixed, from the almirah and told them that these were the clothes which he (accused) was wearing at the time of incident. The witness has proved having St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 49 seized the said clothes vide memo Ex.PW17/K after sealing the same and seal after use was handed over to SI PC Yadav. The accused thereafter took them to ganda nala, Sudershan Park towards Punjabi Bagh Club and pointed out that he had thrown the katta and live cartridges in the nala and since the nala was very deep so it was not possible to search the same and help of the diver was required for searching the nala. The witness has further deposed that he prepared the pointing out memo which is Ex.PW17/L and thereafter the accused was produced before the Ld. MM and his five days police custody remand was obtained. He has also deposed that he moved an application for recording the statement of Vipin Sikka under Section 164 Code of Criminal Procedure carbon copy of which is Ex.PW20/F which application was marked to Ld. Link MM which fixed the same on 25.4.2006 on which date the Ld. Link MM has rejected the same. He has also deposed that thereafter accused Harish Dua was taken from the police lockup who took them at Ganda Nala and they casually searched the Ganda Nala but the recovery could not be effected on that day. Thereafter again on 26.4.2006 one diver Puran Chand was called from Jamuna Baazar to trace out the desi katta and he along with SI PC Yadav, Ct. Vinod & diver Puran Chand and the accused Harish Dua who was taken from police lockup, reached at Ganda Nala, Sudershan Park where at the instance of accused Harish diver Puran Chand went inside the ganda nala and retrieved one desi katta from the nala which katta was smudged with mud. According to the witness, the katta was cleaned and accused Harish Dua St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 50 identified the katta as the same with which he had killed Harish Rana. PW20 has also deposed that on checking the katta one empty cartridge was found in the chamber of the katta after which he prepared the sketch of the katta which is Ex.PW9/A and that of empty cartridge which is Ex.PW9/B and on measuring the total length of the barrel was found 16 cm, length of the body was 11.3 cm and length of the butt was 7cm; the length of the empty cartridge was 5 cm and diameter of the cartridge was 1.5 cm. He has proved that the katta and empty cartridge were put up in empty pullanda and sealed with the seal of PY and seized vide memo Ex.PW7/A after which he filled the FSL form and seal after use was handed over to SI PC Yadav. The witness has further deposed that on 20.5.06 SI Mahesh Kumar took the rough notes and measurement at his instance for preparing the scaled site plan and later on he handed over the scaled site plan to him. PW20 has also stated that he collected the postmortem report on 20.5.06 and on perusal of the said report it was found that doctor had opined the possibility of involvement of more than one person and shifting of dead body and therefore, on 6.6.2006 he sought clarifications from Dr. L.C. Gupta regarding his observation in the postmortem report vide his application Ex.PW20/F on which doctor had given in writing and advised him to collect the evidence on this aspect after which he conducted the investigation in this regard and found that there was no involvement of more than one person nor any possibility of shifting of dead body. The witness has also deposed that on 30.5.06 exhibits of this case were sent to FSL through Ct.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 51Vinod who deposited the receipt with the MHC(M). He has proved having collected the copy of PCR form which is Ex.PW20/X and also of having collected the call details of the mobile phone of accused which is Ex.PW19/B and certified copy of DD No.37 which is Ex.PW20/G. According to the investigating officer after completing the investigations challan was prepared by the then SHO and filed in the court and later on he collected the FSL result which is Ex.PY1 and he moved an application to Addl. Deputy Commissioner of Police for according the sanction under Section 39 Arms Act and the same was accorded which is Ex.PY.
The witness has identified the accused Harish Dua as well as the court property i.e. the motor cycle no. HR-12H-3822 which is Ex.P1; empty cartridge which is Ex.P2; desi katta which is Ex.P3; one mobile phone and one purse of brown colour containing Rs.850 (one currency note of Rs.500 and three currency notes of Rs.100 and one currency note of Rs.50), driving license of Harish Rana, some visiting cards and slips which are collectively Ex.P4; one T-shirt of Mehandi colour and one pant of dark green colour belonging to accused which are collectively Ex.P5.
In his cross-examination the witness has admitted that when he visited the alleged spot on 21.04.2006 he did not record any statement for getting the FIR registered and has deposed that he remained at the spot till 9.00 AM/ 9.15 AM and till then he did not come to know that somebody has been killed or that the cognizable offence has taken place and that is the reason no step St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 52 was taken to get any FIR registered. He has deposed that the dead body in the present case was sent to mortuary for preservation for the purposes of identification for seventy two hours and the body was sent to mortuary at about 9.15AM. The witness has admitted that he did not send the dead body to the mortuary and states that it was sent by ASI Abhinandan of his own. He has testified that he did not come to know at the spot till 9.30AM on 21.04.2006 as to who is the offender or what was the motive of the offence or even the witness in connection with the present case. According to him, nobody reported to him on 21.04.2006 that a murder has taken place in respect of the present incident. He has admitted that there is an independent department in the DDU Hospital, where the dead body, the papers are deposited and later on the papers and the property taken by the doctor, during the postmortem, is sealed and packed. He has also admitted that when the postmortem was conducted, till then no paper was sent to the mortuary since by that time none was prepared. He has deposed that he was present along with the doctors at the time of conducting of postmortem which took about one hour and it was the doctor who called the photographer and he is not aware of the name of photographer. According to him, he did not collect the photographs, inquest papers and the postmortem report etc. from DDU Hospital on 21.04.2006, as the same were not available at that time nor was he handed over any parcel in DDU Hospital or otherwise on 21.04.2006 in connection with the present case but states that the pullandas were handed over by the doctor to Ct. Kishan Gopal, St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 53 who in turn handed over the same to him. He has also deposed that neither Rakesh Rana nor any other witness told him about the motive in connection with the present case on 21.04.2006 and that is why he did not record any such statement of any of the witnesses. The witness has further deposed that he met one Azad Singh Hooda on 21/04/2006 and tried to know about the ownership of motorcycle No. HR-12H-3822 but he did not ask anybody to show the document of ownership in respect of the said motorcycle. According to him, the crime team took/ lifted the finger prints from the motorcycle and the finger prints of the accused were not taken on 21.04.2006 but he does not remember if the finger prints of the accused and those found on the motorcycle were ever sent to the FSL. He has admitted that during the course of investigations he came to know that Rakesh Rana resided in Delhi whereas Anil Rana and his family resided in Gurgaon as on the date of incident. He has deposed that during his investigations he came to know for the first time on 22.04.2006 that the deceased was last seen and found in the factory of Rajeev Verma @ Bobby S/o Late Sh. Yashpal Verma in his factory at A-104, Sudershan Park and he summoned Rajiv Verma in the police station on 22.04.2006 but discharged him after inquiry in the evening of 22.04.2006 itself. According to the witness, on 23rd they along with other police officers had gone to Sudershan Park at about 10:30/ 11AM at the factory of Rajiv Verma but he did not notice any liquor bottles or glasses lying in the factory. He has admitted that the accused did not point out anything while they were crossing the nala and that St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 54 when they started from the house of the accused they were aware of the murder of Harish Rana and the place from where his body was recovered. PW20 has testified that Vipin Sikka remained with them in the investigation till 25.04.2006 when the statement of Vipin Sikka was recorded by the Ld. Link MM but after 25.04.2006. He has also deposed that accused had pointed out the Sudershan Park Nala on 25.04.2006 and no memo was prepared on 25.04.2006. The witness has further deposed that he was not aware if the flood control department also had their own divers of whose services the police can avail. He has testified that he did not take the accused to Azamgarh despite the police remand having been taken and according to the witness the accused had during the interrogation disclosed that he could not tell the whereabouts and details of the supplier. He has admitted that Sudershan Park falls in the jurisdiction of police station Moti Nagar and states that the recovery was affected from Sudhershan Park Nala and not from the Najafgarh drain. He has further deposed that no writing work pertaining to the present case was done in the police station by him on 26.04.2006 but he does not remember if any body else had done any writing work in the police station. He has further deposed that Pooran Chand handed over to him the said katta smudged with mud immediately after retrieving the same and it was placed on a paper for making the sketch of the same in the same condition. The witness has further deposed that the katta retrieved from the nala was sealed and packed at the place of recovery near Sudershan Park Nala itself. He has also deposed that on 21.04.2006 he had St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 55 not done any writing work in connection with the present case and the entire inquest papers (Ex.PW20/A to C, Ex.PW5/A, PW14/DA, PW1/A) and seizure memos (Ex.PW17/A, 17/B, 17/E, 17/K) of the case property dated 21.04.2006 are in the hand of SI PC Yadav. The witness has been shown the document Ex.PW14/DA and at its back stage containing some written matter covered by white fluid but he is not aware who has put white fluid in the written matter at portion A to C. He has admitted that if the accused is not named in the FIR and is not arrested from the spot, TIP is invariably required and states that in the present case he did not offer the accused to be put to the Test Identification Parade. According to the witness besides the conduct of the accused they had no other material to arrest the accused in the present case on 23.04.2006.
PW21 Shri Rakesh Kumar Ld. Metropolitan Magistrate, Karkardooma Courts has deposed that on 24.4.06 he was posted as MM in Rohini Courts and on that day, an application for recording statement U/s 164 Cr.PC of witness Vipin Sikka was marked to him by the Ld. Link MM Shri Sanjay Khanagwal. The witness has deposed that he adjourned the application for 25.4.2006 and on 25.4.2006 he dismissed the application of the investigating officer for recording the statement of Vipin Sikka, vide proceedings Ex.PW21/A. He has proved his order sheet dated 25.4.2006 which is Ex.PW21/B after which the proceedings were ordered to be sent to the concerned court in sealed envelope.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 56PW22 Ct. Rajesh Kumar has deposed that on 21.4.2006 he was posted as a Constable at Police Post Raghuvir Nagar police station Rajouri Garden. According to him at about 8:20 the investigating officer handed over one envelope to him which he took on motorcycle as special messenger and delivered the same to the residence of Ld. Metropolitan Magistrate, residence of Deputy Commissioner of Police, Addl. Deputy Commissioner of Police and Joint Commissioner of Police. He has deposed that after delivery of the same he returned to the police station.
In his cross-examination the witness has admitted that in his statement to the investigating officer he has not mentioned the fact regarding delivery of the dak at the residence of Joint Commissioner of Police. He is unable to tell the exact time when he returned back to the police station. He has further deposed that the Duty Officer made an entry about his returning back to the police station after delivery of the FIR and he signed the same.
Statement of accused/ defence evidence:
After completion of prosecution evidence the statement of accused Harish Dua has been recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence has been put to the accused which he has denied. He has stated that he is innocent and is the only son of his parents. According to him, he was unlawfully lifted from his residence on the night of 21.4.06 by the police and was detained in police post Raghubir Nagar and the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 57 police apprehended and arrested him in the present case without any reason ground or evidence. The accused has further stated that he was detained in the police station unlawfully despite his protest and his father was constrained to send a fax on 23.4.06 to the police commissioner Delhi vide Ex.D1 complaining about the unlawful detention and the message confirmation report is encircled as point 'X' on Ex.D1 and the message conveyed through this fax is encircled as point 'Y' on Ex.D1. According to him, thereafter his father again sent a telegram to the Commissioner of Police Delhi vide a telegram dated 24.4.06, certified copy of which telegram is Ex.D2, the original receipt for sending the telegram is Ex.D3. He has also stated that the police/ investigating officer also received the aforesaid fax and telegram and were annoyed as to why his family had complained about his unlawful detention to the higher police officials and in order to justify his unlawful detention in the police station since 21.4.06, the police showed his arrest in the present case as an accused. He has further stated that his father again send another telegram on 25.4.06 certified copy of which is Ex.D4 and all the documents alleged to have been made between 20.4.06 and 29.4.06, and exhibited in the present case are false, forged and fabricated documents. According to him, he never made any disclosure statement nor any pointing out memo was prepared at his instance and no recovery has been effected in the present case in his presence or at his instance. He has stated that he had never taken any loan of money from the deceased or from any St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 58 other person till date and the story and theory of motive and commission of offence by him, as propounded by the prosecution is the brain child of PW17 and PW20 and is palpably false and preposterous. The accused has further stated that till 24.4.06 police had neither informed him nor his family the reason or the ground of his detention or the FIR under which he was detained and on 24.4.06 his family availed the services of an advocate to ascertain from the court if any FIR has been registered involving the applicant in any case registered at PS Rajouri Garden. Accordingly on inquiry it was revealed that FIR No. 387 and 389 had not reached the court and therefore, applications were filed for inspecting the aforesaid FIRs, certified copies of which applications are Ex.D5 and D6 respectively and on inspection it revealed that the said FIRs had not been sent to the Magistrate/ court till then and as such the magistrate directed the Niab Court to bring the FIRs in the court on 25.4.06. Accordingly on 25.4.06 the FIR was sent to the magistrate and inspection was carried out, the certified copy of the said FIR is Ex.P7. According to the accused, initially the application for obtaining certified copy of the inspection applications was dismissed by the magistrate, the certified copies of which applications are Ex.D8 and D9 containing the orders of the Magistrate at point X. FINDINGS:
I have carefully perused the record along with the written synopsis of arguments filed by both the parties. I propose St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 59 to first deal with all the allegations/ averments individually in a tabulated form and later on comprehensively.
Sr. Name of the Details of Deposition
No. witness
PUBLIC WITNESSES
1. Akbar (PW1) He is the neighbour of the deceased Harish Rana
and has deposed on the following aspects:
1. On 21.4.2006 he had left for his godown at
village Basai Dara Pur.
2. That on reaching the godown he came to know
that younger brother of Bittu Rana, whose
godown is adjacent to his godown, namely Micky had met with an accident.
3. That one Som Pal asked him to go to the police post Raghubir Nagar where he was made to sign certain papers.
This witness has turned hostile and has denied that on 21.4.2006 he was present at ESI Hospital Executive Engineer (Flood) Office on a road leading to Shivaji Park where near the boundary wall a male dead body with blood oozing from the head towards the face and with its zip open was found which he identified to be of Harish Rana. He has admitted that Harish Rana used to lend money on interest but has denied that he had told the investigating officer that Harish Rana might have been shot dead by one of the person known to him on account of dispute for return of money.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 602. Rakesh Rana He is the elder brother of the deceased Harish Rana (PW3) who has deposed as under:
1. That the deceased was a Financier for TV, Fridge Etc. under the name and style of Rana Finance and Company and also had a factory by the name of Rana & Brothers & Company where CFLs were assembled.
2. That on 20.4.2006 at about 5;30 pm Harish Rana left the factory on his motorcycle bearing no. HR- 12H-3822 and did not return for the entire night.
3. That in the next morning police officials came to their house and took him in front of ESI Hospital where he was showed the body of his brother who was bleeding from the head and his motorcycle was parked nearby and the zip of his trouser was open.
4. That he identified the body of his brother and thereafter the body was sent to the hospital for postmortem examination and it was revealed that the deceased had firearm injury on the back of his head.
5. That his deceased brother had given money on loan to Ghai, Rajiv Verma,Kalu & Anil Kumar and his brother had imposed penalty upon them for default in repayment.
6. That registered owner of the motorcycle bearing no. HR-12H-3823 is his maternal uncle namely Azad Singh Hooda and the registration number was initially allotted to be 3822 which was accordingly painted on the number place but later on it was clarified by the Registering Authority that the number was 3823.
He has proved his statement made to the police which is Ex.PW3/A and has identified the motorcycle bearing no. HR-12H-3823 which is Ex.P-1.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 613. Azad Singh He is the maternal uncle of the deceased Harish (PW4) Rana and has deposed on the following aspects:
1. That he is the registered owner of the motorcycle bearing no. HR-12H-3823.
2. That at the time of seeking registration of the motorcycle he was given a Kachchi slip on the basis of which registration no. 3822 was got painted on the motorcycle.
3. That after one month of the purchase of motorcycle the registration certificate mentioning the number to be HR-12H-3823 was issued to him.
4. That the motorcycle had been taken by his nephew Harish Rana a few days after its purchase which remained in his possession till the day of occurrence.
4. Anil Rana He is the eldest brother of deceased Harish Rana (PW5) and is the witness who had last seen the deceased Harish Rana alive with the accused. He has deposed on the following aspects:
1. That his younger brother Harish Rana was engaged in the business of financing and was also working with Rakesh Rana at his factory.
2. That the deceased had told him that he had financed some amount to accused Harish Dua which the accused was not returning and therefore, they had some differences with each other.
3. That in April 2006 he was residing at Delhi and working at Gurgaon on 20.4.2006 he left Gurgaon at about 7:30 pm and was on the way via ESI Hospital where he reached at about 9:45 pm.
4. That he saw that his younger brother Harish Rana (deceased) was standing with the accused Harish Dua on a rehari of eggs where they were talking with each other.
5. That he alighted from the bus and advised Harish Rana to return home on which Harish Rana asked told that he would follow him.St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 62
6. That he thereafter returned home and went off the sleep.
7. That on 21.4.2006 in the morning at about 8:30 am he received a phone call from his brother Rakesh Rana asking him to reach ESI Hospital near bus stand pursuant to which he reached the spot and saw the dead body of his brother Harish Rana lying near the office of Executive Engineer, Flood Office near boundary wall of Shivaji Park and there were traces of blood flowing from the forehead to mouth.
8. That thereafter the dead body was shifted to DDU Hospital and after postmortem it was revealed that his brother had been shot dead.
9. Thereafter conducting the last rites of his brother Harish Rana, he told his other brother and the police of having seen the accused with the deceased, the previous night.
He has identified the accused Harish Dua in the court and proved his statement regarding identification of dead body which is Ex.PW5/A.
5. Shankar Kumar This witness is a worker in factory no. A-104 (PW6) Sudershan Park which was owned by Rajev Verma @ Bobby. He has last seen the deceased having drinks in the factory of Rajiv Verma with the accused. He has deposed as under:
1. That on the instructions of his employer he used to lock the factory premises at night.
2. That on 20th of a month about two and half years, he locked the factory at about 9 pm after his employer had left and when he went to the office portion of the factory to lock the same, Rana and Dua (accused) were sitting in the office and consuming liquor
3. That he requested them to leave on which both the of them went out of the office and left for their respective houses and that Rana (deceased) had gone on his motorcycle alone.St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 63
He has correctly identified the accused Harish Dua in the court. He has, however, turned hostile and has denied that the accused and the deceased went together on the same motorcycle in his present.
6. Rajeev Verma He is also a witness who had last seen the deceased (PW8) having drinks in his factory and has deposed on the following aspects:
1. That on 20.4.2006 he along with Harish Rana had gone to Pusa Road for supply of Auto Stem on the motorcycle of Harish Rana.
2. That when they were returning on the motorcycle at about 7:45 am the accused Harish Dua met them at Moti Nagar near Talwar Fish Corner where the deceased and the accused had a talk after which they came to his factory where two persons namely Munna and Kalu were already present and were consuming liquor at that time.
3. That Harish Rana (deceased) also joined them and started consuming liquor with Munna and Kalu and thereafter Vipin Sikka and the accused Harish Dua reached the factory and thereafter accused Harish Dua left the factory on seeing that Kalu, Munna and Harish Rana were consuming liquor.
5. That at about 8:25 pm he decided to leave his office and he asked his employee Shanker to lock the office on which Shanker requested him to ask Harish Rana, Munna, Kalu and Vipin Sikka to vacate the room by 9 pm.
6. That accordingly he requested them to leave the office by 9 pm and thereafter Munna and Kalu left the factory.
7. That on the next day at about 10 am he received a phone from police post Raghubir Nagar that Harish Rana had expired in an accident and on request of Rakesh Rana he reached the police post where he told the police regarding the presence of aforesaid persons in his factory before 8:25 pm. St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 64
8. That he asked Shankar as to what had happened on the previous night but Shankar told him that he had locked the office at 9 am and did not tell him about the presence of accused Harish Dua in the office with the deceased.
He has correctly identified the accused Harish Dua in the court. However, he has turned hostile and has deposed that he did not state to the investigating officer that HarishDua has spoken to Harish Rana. He has admitted that Shankar has not told him that the accused and the deceased left the office for their respective houses. He has also admitted that Shankar had told him that he locked the factory of his factory after Harish Dua and Harish Rana left the place.
7. Puran Chand He is a Diver (Safeguard) by profession with the (PW9) MCD and had retrieved the katta from Ganda Nala on the pointing out of the accused Harish Dua. He has deposed on the following aspects:
1. That about 3-4 years earlier two police officials came to his residence and brought him to the police station Rajouri Garden where he met the accused Harish Dua.
2. That the accused led them to Ganda Nala near police station Rajouri Garden and pointed out from the bridge the place where he had thrown the katta.
3. That he dived and swam in the nala for about half hour and retrieved a country made pistol and shown the same to the accused who identified the same to be the one which he had thrown in the ganda nala.
4. That on opening the same an empty cartridge was found therein after which the sketch of the katta which is Ex.PW9/A and that of the cartridge which is Ex.PW9/B were prepared and the same were seized vide memo Ex.PW7/A. The witness has correctly identified the accused Harish Dua and the katta and empty cartridge in the court.St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 65
8. Vipin Sikka He is known to both the accused and the deceased (PW10) and has deposed on the following aspect:
1. That Harish Rana was engaged in the business of manufacturing Auto bulbs.
2. That Harish Rana had given some loan to the accused which was probably of Rs.10,000/- and there was some dispute between two since deceased demanded interest at exorbitant rates.
3. That the deceased used to abuse the accused for non-payment of the interest and principal amount and the accused had confided in him that he was unable to re-pay the loan amount.
4. That the accused had been married about 8 to 9 months prior to the death of Harish Rana and the deceased Harish Rana was in a habit of using foul language for demanding his repayment but accused never told him of any talk by the deceased involving the wife of accused.
5. That on 20.4.2006 accused called him up on his land line no. 25179508 using his mobile phone since the accused wanted to see him but since he was sleeping he told the accused that he would meet him in the morning.
He has turned totally hostile on having seen the accused and deceased together at the factory of Rajeev Verma but has admitted that accused had told him that he could not tolerate the harassment and torture meeted out by the deceased. He has denied that one day prior to the incident the accused had shown him a katta and told him that he would kill Rana since he had left with no other alternative.
MEDICAL WITNESSES:
9. Dr. L.C. Gupta This witness has proved having conducted the (PW14) postmortem upon the dead body of deceased Harish Rana. He has proved the postmortem report which is Ex.PW14/A. He has proved his following opinion that:
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 661. Cause of death in this case was shock resulting from extensive cranio cerebral damage (Head injury) consequent upon projectile fire arm weapon injury caused by the other party which was sufficient to cause dead in ordinary course of nature and the postmortem findings were consistent with postmortem shifting of the dead body along with involvement of more than one person in the crime.
2. Time since death was also given which was about 12-18 hours prior to postmortem examination.
He has also deposed that subsequently an application was moved by Inspector Jaiveer Singh seeking clarifications on which he vide his endorsement Ex.PW14/B advised the investigating officer to revisit with original inquest papers and the evidence he collected but the investigating officer did not come back to him again.
On specific court question the witness has deposed that the deceased was six feet in height, well developed and well nourished person and the postmortem staining was fixed at two different area and aspects of the dead body and that too in two different identifiable colours. At one set of aspect of the body the postmortem staining was marked in colour and at the other set of aspect of the body the postmortem staining was faint in colour. The first set of aspect which was marked in colour was at face, front of whole chest, frontal aspect of upper limbs, left side chest dorsolaterally, left arm at back and posteromedial aspect of both arm and the faint postmortem staining was on back of chest, back of abdomen and independent parts. The two colours of of postmortem staining and that too at different set of aspect of the body could only be possible when the dead body has been shifted from one site to other and that too before the fixing of postmortem staining. He has also stated that as per his view a dead body of such a well built, nourished and of height cannot be shifted by a single person on Ring Road.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 67POLICE WITNESSES (proving investigations)
10. HC Bhagwati He is a formal witness being the Duty Officer who Prasad (PW2) has proved the FIR copy of which is Ex.PW2/A; his endorsement on the rukka which is Ex.PW2/B and copy of the FIR sent to the concerned MM through special messenger which is Ex.PW2/C.
11. Ct. Vinod He is also a witness to the recovery of the katta and Kumar (PW7) has corroborated the testimony of PW9 Puran Chand in toto.
12. HC Jaiveer He is a formal witness being the photographer who Singh (PW11) has proved having taken the photographs of the dead body at the spot which are Ex.PW11/B1 to B7 and the negatives which are Ex.PW11/A1 to A7.
13. Ct. Ashok He is the witness who had first seen the body of the Kumar (PW12) deceased. He has deposed on the following aspects:
1. That on 21.4.2006 as a routine he checked the Ring Road area falling within the traffic circle of Rajouri Gaden.
2. That at about 6:10 am when he reached near ESI Hospital he found one black colour motorcycle bearing no. HR-12H-3822 parked on the road side opposite the ESI Hospital.
3. That about 10-15 feet away near the wall of a nearby park a person was found in sitting posture near the wall and the knees of the said person was touching the ground and his head was touching the wall.
4. That he noticed blood dropping down from his head and face and the said person was appeared to be dead after which he rang up the PCR.
14. HC Raj Kumar He is a formal witness being the MHC(M) who has (PW13) proved the various entries by way of which the investigating officer had deposited the various pullandas with him.
15. SI Lalit Kumar He is the incharge of crime team who has proved his (PW15) report which is Ex.PW15/A.
16. SI Mahesh He is a formal witness who has proved having Kumar (PW16) prepared the scaled site plan which is Ex.PW16/A on the basis of the rough notes taken by him from the spot on 20.5.2006.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 6817. SI P.C. Yadav He has joined the investigations with the (PW17) investigating officer Inspector Jaiveer Singh and has proved the various documents as under:
Ex.PW17/A Seizure of mobile phone and purse
Ex.PW17/B Seizure of gold flake, blood stained
earth, earth control and blood.
Ex.PW17/C Seizure memo of motorcycle
Ex.PW17/D Statement of Rakesh Rana
Ex.PW17/E Seizure of pullandas handed over by
the doctor.
Ex.PW17/F Arrest memo of the accused
Ex.PW17/G Personal search memo of the accused
Ex.PW17/H Disclosure statement of the accused
Ex.PW17/J Pointing out memo of the spot
Ex.PW17/K Seizure of clothes of the accused
Ex.PW17/L Pointing out memo of the spot from
where the katta was recovered
18. ASI B.D. Yadav He is a formal witness being the Incharge of the (PW18) PCR Van who has reached the spot on receipt of the information.
19. Insp. Mukesh He is also a formal witness who has proved having Kumar (PW19) collected the call details of the mobile no.
9818539019 for the period 10.4.2006 to 21.4.2006 which are Ex.PW19/B.
20. Insp. Jaiveer He is the investigating officer of this court who has Singh (PW20) proved the various investigation proceedings conducted by him.
21. Sh. Rakesh He has proved having dismissed the application of Kumar, Ld. MM the investigating officer for recording the statement (PW21) of Vipin Sikka under Section 164 Cr.P.C. vide his order dated Ex.PW21/A.
22. Ct. Rajesh He is a formal witness who has proved having Kumar (PW22) delivered the copy of FIR to the residence of the Ld. Metropolitan Magistrate, Deputy Commissioner of Police, Addl. Deputy Commissioner of Police and the Joint Commissioner of Police.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 69Now coming to the microscopic examination in respect of the evidence against the accused Harish Dua.
Identity of the accused:
In so far as the identity of the accused Harish Dua is concerned, the same has not been disputed since he was known to the deceased and his family members even prior to the incident as evident from the testimonies of various witnesses of the prosecution including the brother of the deceased i.e. Rakesh Rana (PW3), Anil Rana (PW5), Shankar Kumar (PW6) and Rajeev Verma (PW8). In fact the brother of the deceased Anil Rana (PW5) who on the date of incident was working at Gurgaon but resided at Delhi at the house of the deceased where he stayed over night; has deposed that he had last seen the accused Harish Dua with his deceased brother Harish Rana at a Rehri of selling eggs at ESI Hospital Bus Stand wherein he had advised his brother to return home as it was too late. This being the background, I hold that there is no dispute in so far the identity of the accused is concerned.
Motive:
Motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. 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 St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 70 which would be sufficient in itself from the face of it, the accused cannot be convicted. 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.
Applying these settled principles of law to the facts of the present case, it is apparent from the evidence on record that as per the prosecution the motive of the accused Harish Dua for committing the offence is that he had taken some loan from the deceased (Harish Rana) since the deceased was a money lender and used to charge exorbitant rate of interest which he could not repay. At the time of recovery, deceased used extremely foul language and on one occasion had suggested the accused who was newly married to send his wife to him (deceased) if he is unable to pay which annoyed the accused. The fact regarding the suggestion made by the deceased of sending the wife of accused to him, has not been proved. Rather, it has been denied by the witness Vipin Sikka (PW10) who had earlier stated this fact to the investigating officer but this witness in his examination in chief before the court had deposed that the accused had told him about the loan and the fact that the deceased was demanding exorbitant rate of interest which money he was unable to pay. Ld. Counsel appearing on St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 71 behalf of the accused, at the time of recording the evidence has objected to the admissibility of the evidence of this witness being a hear-say evidence. I may observe that this is not a hear-say statement since it is the accused himself who had told this fact to Vippin Sikka (PW10) about the loan given by the deceased to him which is in the nature of an extra judicial confession. This fact also stands corroborated from the testimonies of both the brothers of the deceased namely Rakesh Rana (PW3) and Anil Rana (PW5) who have similarly deposed that the deceased used to give money on loan though he was not a registered money lender and that he had lend money to the accused. Even if it is presumed that Anil Rana (PW5) and Vipin Sikka (PW10) have not supported the case of prosecution and the motive to commit the crime is not fully established, even then, the same would not fatal the case of prosecution in as much as once the prosecution case stands proved from the other evidence, if found to be truthful and reliable the motive assumes only a secondary role. For holding this view, I am fortified by the judgments in the cases of Mehr Law Arora and Anr. reported in AIR 1947 SC 1593 and in the case of Surender Narayan @ Manu Pandey Vs. State of U.P. reported in AIR 1988 SC 192.
Last seen/ ocular evidence/ eye witness:
Ocular Evidence/ eye witness count is the best evidence in any case. However, in a given case where there are no eye witnesses then under these circumstances the 'Last Scene' theory St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 72 may come 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. However, it is a settled law that even in such cases the courts should look for such 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).
In the present case, the prosecution has relied upon the testimony of PW5 Anil Rana the brother of the deceased, PW6 Shankar Kumar, PW8 Rajeev Verma @ Bobby in order to bring home the charges against the accused Harish Dua.
Firstly in so far as PW5 Anil Rana is concerned, he is the brother of the deceased who on the date of his examination in the court was a resident of Gurgaon. He has in his testimony stated that on 20.4.2006 he left Gurgaon at about 7:30 pm and was on the way home via ESI Hospital and when he reached the bus stand at about 9:45 pm, he saw that his brother Harish Rana standing with accused Harish Dua at a rehri selling eggs. According to the witness, he was travelling by bus and when he alighted from the bus and started walking towards his house, he advised his brother to return home as it was too late on which his brother told him that he would follow him and asked him to move ahead and thereafter he reached home and went off to sleep but the deceased did not return home that night. Anil Rana has St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 73 further deposed that it was on the next day morning on 21.4.2006 at about 8:30 am that he received a call from his brother Rakesh Rana asking him to reach ESI Hospital near bus stand and when he went to bus stand he saw the dead body of his brother Harish Rana lying near the office of Executive Engineer, Flood Office near boundary wall of Shivaji Park. According to him, there were traces of blood flowing from the forehead to mouth and the police had asked for a Tata 407 to remove the body on which the body was taken to DDU Hospital and after postmortem of the dead body of his brother, it was revealed that his brother had been shot dead.
Ld. counsel appearing on behalf of the accused has challenged the credibility and truthfulness of this witness on two counts firstly that despite being a resident of Gurgaon he has falsely deposed regarding his presence at the residence of the deceased at Sudershan Park and secondly with regard to his behaviour which according to the Ld. counsel has been most abnormal and unnatural under the given circumstances. Sh. Rajesh Harnal, Advocate appearing on behalf of the accused has submitted that Anil Rana (PW5) is an interested witness being the brother of the deceased and once it is established that he is working at Gurgaon and residing separately with his wife at Gurgaon, the question of his presence in Delhi on the date of incident does not arise. He has also argued that this fact that Anil Rana is residing at Gurgaon also finds a mention in the testimony of Rakesh Rana (PW3). I have considered the submissions of the Ld. counsel and in this regard it has become necessary for this court to observe that St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 74 it is evident from the testimony of Anil Rana (PW5) that it was on the date of the recording of his statement he was working at Sudershan Park but was residing at Gurgaon but in his testimony he has very categorically deposed that on the date of the incident in April 2006 he resided in Delhi though he worked in Gurgaon. This being so, the argument raised by the Ld. counsel that the presence of the witness Anil Rana (PW5) at his residence at Sudershan Park is doubtful, is devoid of merits. Further, I may observe that in so far as the testimony of Rakesh Rana (PW3) is concerned, he was cross-examined in the court only with regard to the place where the wife and children of Anil Rana were residing without specifying the period to which Rakesh Rana had answered that the wife and children of Anil Rana were residing at Gurgaon apparently meaning on the date of deposition and not of the incident. At no point of time the Ld. counsel for the accused had put any specific query to Rakesh Rana (PW3) with regard to the place where Anil Rana was residing on the date of the incident whereas a specific query in this regard was put to Anil Rana who replied that on the date of incident he was residing in Delhi though he was working in Gurgaon, on which aspect he has not been cross-examined at all and I find no reason to disbelieve him.
Ld. counsel for the accused has also argued that the behaviour and conduct of Anil Rana (PW5) has been most unnatural unlike that of prudent and reasonable man since the witness claimed that he was in Delhi on 20.4.2006 and resides in St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 75 the same residence as that of the deceased whereas the case of the prosecution is that information was given to the family of the deceased at about 7:30 am and it was only PW3 Rakesh Rana who reached the spot from where the dead body was recovered at 8:00 am from where he had contacted PW5 Anil Rana and called him which is not possible. It is also argued that Anil Rana (PW5) did not disclose this fact of having seen the deceased with accused Harish Dua at the bus stand on his way while he was coming home. He has placed his reliance on the cross-examination of PW5 wherein he had deposed that he is not aware if the mother or wife or any other family members of the deceased were disturbed on account of absence of the deceased on the intervening night of 20/21.4.2006 or that if the police had come in the morning and informed about discovery of Harish Rana in injured condition. It is also argued that once an information has been received at the house of the deceased regarding his death, how is it possible that Anil Rana who is residing in the same house, remained unaware of the same till his brother telephoned him and called him up and it is also improbable that the witness Anil Rana did not tell any of his family members that he had seen his deceased brother with the accused Harish Dua near ESI Hospital despite the fact that he remained with his brother Rakesh Rana till the cremation. Ld. counsel for the accused has further submitted that even later on after having come to know about the death of deceased, it is not possible that the witness Anil Rana who is the real brother of deceased, would not have told his other brother or the police officers regarding the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 76 deceased being with the accused one night prior to the incident and therefore, it is evident that the last seen theory, as propounded by the prosecution is false and a sheer after thought and had the witness been in Delhi he would certainly have shared this information and informed the police before registration of the FIR.
I have considered the argument of the Ld. counsel. With regard to all the above aspects as highlighted by the Ld. counsel, I may observe that a valid explanation is forthcoming for this delay in the testimony of Anil Rana (PW5). He has explained that his brother normally used to consume alcohol three to four days in a week. On the date of incident after he (Anil Rana) came home he went off to sleep. Having seen the deceased around 9:45 pm, it is natural that the witness would have returned home by 10:00 pm and thereafter gone off to sleep not bothering to check, since the deceased was a habitual drinker. Therefore, under the given circumstances when he himself had gone off to sleep it is again natural that he would not have known whether his mother, wife of the deceased and other family members were disturbed on account of his (Harish Rana's) absence during the night or not. It is further evident from his testimony and also from the testimony of Rakesh Rana that the information regarding the deceased had been given by the police to the family of the deceased which information was received by Rakesh Rana (PW3) who had gone to the spot alone. Had the information of death of the deceased been passed on to other family members, it is only natural that at least the mother and wife of the deceased wuld have gone to the spot which St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 77 did not happen. This only reflects that Rakesh Rana did not pass on this information to any person at home while leaving his house in the morning and it was only when he reached the spot and confirmed the dead body to be of his brother, that he called up his other brother Anil Rana (PW5) but did not inform him about the death of the deceased. Anil Rana (PW5) in his cross-examination has specifically deposed that his brother Rakesh Rana only asked him to come to the spot but did not inform him regarding the death of his brother. This appears to be the correct version because had the information of death been passed on to Anil Rana, he would again have shared the same with him family members and at least some other person from the family or from the neighbourhood would have certainly accompanied Rakesh Rana under these circumstances, which is not the case and therefore, I find no reason to doubt the version given by Anil Rana (PW5). Further, the witness Anil Rana (PW5) has also explained that initially the were not aware that the death of Harish Rana was unnatural a fact which finds a corroboration from the testimony of Shankar Kumar (PW6) and Rajeev Verma (PW8) who deposed that as per the information received by them Harish Rana had died on account of an accident. This being so, it is only natural that Anil Rana must not have suspected any person at that time, so as to disclose this fact to this other family members of the police. It is also evident from the record that the postmortem of the deceased was conducted on the same date and his last rites also took place on the same day and PW5 Anil Rana has duly explained that it was only when the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 78 postmortem was conducted that they came to know that his brother Harish Rana had been murdered and his death was on account of bullet injury. Naturally the last rites of the deceased being conducted immediately after the postmortem, there was not much time for Anil Rana to have disclosed this fact to anybody else and immediately after conducting the last rites, he informed his brother and the police officers about his seeing his deceased brother with the accused. Whether this information was given to the police officials immediately after the last rites or after about two to three hours would be immaterial under the given circumstances and I find no reason to doubt the credibility and truthfulness of this witness.
Secondly the prosecution has also relied upon he testimony of Shankar Kumar (PW6) who was an employee of Rajeev Verma (PW8) in whose factory the accused Harish Dua and the deceased Harish Rana were last seen sitting together having drinks along with other persons. Ld. counsel for the accused has vehemently argued that Shankar is a planted witness and even otherwise there are major discrepancies and contradictions in his statement which is liable to be rejected. I have duly considered the submissions made before me. I may observe that Shankar Kumar (PW6) had been entrusted with the job of locking the the factory premises. He has in his testimony deposed that on the date of incident he had locked the factory at about 9:00 pm after his employer had left and he had seen Rana (deceased) and Dua (accused in the present) who were sitting in their office and St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 79 consuming liquor on which he requested them to leave as he had to lock the office and thereafter, both of them went out of the office and left for their respective houses. This witness has turned hostile on the aspect that the deceased and the accused went together on the same motorcycle and has deposed that he had seen both of them leaving on their respective motorcycle. In his cross- examination by the Ld. Addl. PP for the State he does not support this version given by him to the investigating officer earlier in his statement under Section 161 Code of Criminal Procedure which is Ex.PW6/DA and has also denied having any knowledge of the fact Vipin Sikka (PW10) had come to the factory on that day and had left after sometime. This witness Shanker Kumar (PW6) has been cross-examined by the Ld. defence counsel at length wherein he has deposed that he was known to Harish Rana, Vippin Sikka and also Harish Dua. He has also deposed that he had seen Harish Rana for the first time on 20.4.2006 at about 9:00 pm when he went to lock the office and on the next day at about 8:30 am when he joined duty, he came to know that Harish Rana had met with an accident on which he called up his employer Rajeev Verma (PW8) who told him to close the factory on which he reached Police Post Raghubir Nagar at about 9:30 am. He has further deposed that Vipin Sikka was a frequent visitor and used to consume alcohol. There is no reason for Shankar Kumar (PW6) who is as much known to the accused Harish Dua as he was to the deceased being the employee of their common friend Rajeev Verma (PW8) to depose against the accused particularly so, when he had no history St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 80 or ill will or animosity qua the accused. Even otherwise the testimony of Shankar regarding his presence at the spot and having locked the factory at 9:00 pm finds due corroboration from the testimony of Rajeev Verma (PW8) Thirdly the prosecution is also relying upon the testimony of Rajeev Verma (PW8) the owner of the factory where the deceased Harish Rana was last seen consuming alcohol in the late night hours. This witness was with the deceased Harish Rana during the day and according to him, he he (Rajev Verma) and Harish Rana had gone to Pusa Road for some wok on the motorcycle of Harish Rana (deceased) and returned at about 7:45 pm when accused Harish Dua met them at Moti Nagar near Talwar Fish Corner where both the deceased and the accused had a talk and the deceased purchased liquor from the liquor vend after which they went to his factory where two other persons were already consuming liquor and the deceased also started consuming liquor with them. He has stated that after sometime Vipin Sikka and Harish Dua reached his factory but according to him, Harish Dua left the factory seeing that Kallu, Munna and Harish Rana were consuming liquor and did not speak to anybody but Vipin Sikka stayed back and sat with him (Rajeev Verma) as they both were non drinkers. This witness is a friend of both the accused and also the deceased and perhaps it is for this reason that he permitted his factory premises to be used by them for drinking purposes. It is writ large from his testimony that he has tried to save the present accused Harish Dua by deposing that in fact the accused Harish St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 81 Dua had left the factory on seeing Kalu, Munna and Harish Rana consuming alcohol whereas he has Vipin Sikka stayed back as they both were non drinkers. This aspect of Harish Dua coming back whereas he and Vipin Sikka staying back being non drinkers, does not appeal to this court. It does not appear probable that a person who is non drinker would permit his official premises/ factory to be used by persons who are habitual drinkers. This witness has, however, corroborated the version given by Shanker to the extent of presence of the deceased in the premises and also on the presence of the accused in the factory premises for some time. He has further corroborated the version of Shankar Kumar (PW6) that he had asked him to lock the office by 9:00 pm but when asked if he had asked Shankar regarding the presence of accused Harish Dua in the factory premises at the time when he locked the same at night he has given a vague reply to the extent that Shanker never disclosed to him about the presence of the accused. From the testimony of this witness the fact of accused having met the deceased twice i.e. at 7:45 pm and later till 9:00 pm in his factory premises, stands established.
Fourthly though the prosecution has also cited Vipin Sikka (PW10) as a witness who had last seen the deceased alive in the factory of Rajeev Verma having drinks with the accused, yet in the court this witness has not supported the prosecution case on that count. Vipin Sikka (PW10) is a friend of both the accused and the deceased and also a resident of Sudershan Park engaged in the business of manufacturing of Auto Bulbs. He has deposed about St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 82 the deceased having told him about some loan given to the accused on exorbitant rate of interest which he was unable to repay due to which reason the deceased often abused the accused. He has turned hostile on the aspect of the accused having a drinking session with the deceased in the factory of Rajeev Verma and it is apparent that his attempt is to favour the accused. However, in his cross-examination by the Ld. Addl. PP for the State he has admitted that they all four including the accused had gone to the factory of Rajeev Verma @ Bobby and even at Moti Bagh Dhaba he had advised the accused not to commit any wrong act but has denied that at about 10:45 pm the accused had called him up and told him that he had shot dead the deceased Harish Rana. He has also denied having stated to the investigating officer the facts relating to the incident as given in his statement under Section 161 Code of Criminal Procedure Ex.PW10/A. He, however admits in his examination in chief that the accused had called him on his land-line no. 25179508 which call was attended to by his wife when the accused wanted to speak to him while he was sleeping and thereafter he attended the call and the accused told that he had some urgent work and wanted to see him immediately to which he (Vipin Sikka) declined and told him that he would be available only in the morning.
Ld. counsel appearing on behalf of the accused has submitted that the credibility of this witness is under a cloud and his testimony cannot be relied upon since he himself was previously a suspect as evident from the fact that he had been St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 83 produced in the court of Ld. Metropolitan Magistrate by the investigating officer for recording his statement under Section 164 Code of Criminal Procedure which request was declined by the court. I have considered the submissions made. No doubt the witness Vipin Sikka may not be a reliable witness, being a suspect at one point of time and his testimony is required to be read with due caution but one thing which has stand established from his testimony and also from the record of the call details which is Ex.PW19/B that the accused had made two calls to him from his mobile no. 9818539019 on 20.4.2006; first at 22:07:51 hours which lasted for more than half of a minute i.e. 37 seconds and second at 22:48:09 hours which lasted for more than three minutes i.e. 185 seconds. This only goes to show how close Vipin Sikka was to the accused Harish Dua or else he would have no reason to call him up repeatedly in late night hours. Further, the presence of Vipin Sikka in the factory premises of Rajeev Verma stand established from the testimony of Vipin Sikka (PW10) and even his employee Shanker Kumar (PW6) has deposed that he was a frequent visitor to the factory. Under the given circumstances, Vipin Sikka has not supported the case of the prosecution but certainly the called detail record which is Ex.PW19/B showing that the accused had made two calls to Vip[in Sikka in which the second call lasted for more than three minutes, shows that in fact Vipin Sikka had spoken to the accused and many more things appeared to have been discussed and his deposition before the court that he only spoke to the accused and refused to meet him, St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 84 does not appear to be correct.
In view of the above, it stands established from the testimonies of Anil Rana (PW5), Shanker Kumar (PW6) and Rajeev Verma (PW8) that the deceased Harish Rana was last seen in the company of the accused Harish Dua first at about 7:45 pm at Moti Nagar and thereafter in the factory of Rajeev Verma (PW8) where they remained till about 9:00 pm and thereafter at ESI Hospital bus stand near egg rehri. It further stands established that after Shankar Kumar (PW6) had locked the factory both the deceased and the accused came to bus stand at the rehri of eggs where Anil Rana (PW5) the brother of the deceased saw them and asked the deceased to return home as it was late. Therefore, under these circumstances, the death of the deceased took place thereafter. Since the body of the deceased was found near the bus stand of ESI Hospital at about 6:10 am when the Rigor Mortis of the body was virtually complete the deceased under these circumstances expired between some time between 9:45 pm to 10:15 pm. The weather being hot in the summers the Rigor Mortis was almost complete by 6:00 am as evident from the postmortem report and therefore, the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found death is so small that possibility of any person other than the accused being the author of crime becomes impossible and I find no ground to disbelieve the version given by the witnesses.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 85Recovery of weapon of offence:
The case of the prosecution is that after the accused, he made a disclosure of having thrown the weapon of offence in ganda nala, Sudershan Park pursuant to which the diver of MCD namely Puran Chand who was working as Life Guard at Kashmere Gate, was called who got this weapon of offence recovered after swimming in the water of the Nala for almost half an hour, after the accused pointed out the place where he had thrown the weapon to him. Puran Chand (PW9) the Diver from the MCD who had been called to assist the investigations has specifically proved the recovery of the said weapon of offence.
Before analyzing the evidence adduced by the prosecution in this regard, it is necessary to discuss the relevant law.
Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant provides that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 86
Recently, in the case of Bachchi Singh & Anrs. Vs. The State (NCT of Delhi) bearing Criminal Appeal No. 261/1997 decided on 30.7.2010 Hon'ble Mr. Justice V.K. Jain of Delhi High Court while making reference to the earlier decisions and various judicial pronouncements summarized the law as under:
In State of U.P. Vs. Deoman Upadhyaya reported in 1960 Cri. L.J. 1504, Supreme Court inter alia, observed as under:-
"When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody: submission to the custody by word or action by a person is sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of S.27 of the Indian Evidence Act."St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 87
In the context of Section 439 of the Code of Criminal Procedure, Supreme Court, in Niranjan Singh Vs. Prabhakar Rajaram Kharote reported in 1980 Crl.L.J. 426 inter alia observed as under:-
"When is a person in custody, within the meaning of Section 439, Cr.P.C.? When he is in duress either because he is held by the Investigating Officer or other police or allied authority or is under the control of the Court having been remanded by Judicial order, or having offered himself to the Court s jurisdiction and submitted to its orders by physical presence. No lexical dexterity nor precedential profusion is needed to come to the realistic conclusion that he who is under the control of the Court or is in the physical hold of an officer with coercive power is in custody for the purpose of Section
439. This word is of elastic semantics but its core meaning is that the law has taken control of the person. The equivocatory quibbling and hide-and-seek niceties sometimes heard in Court that the police have taken a man into formal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubiotics are unfair evasions of St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 88 the straightforwardness of the law....
Custody, in the context of Section 439 (we are not, be it noted, dealing with anticipatory bail under Section 438) is physical control or at least physical presence of the accused in Court coupled with submission to the jurisdiction and orders of the Court."
In Lay Maung v. Emperor reported in AIR 1924 Rang 173, the Court inter alia observed as under:-
"As soon as an accused or suspected person comes into the hands of a police officer he is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore, in "custody" within the meaning of Sections 26 and 27 of Evidence Act"
In Haroon v. Emperor reported in AIR 1932 Sind 1490 and Pharho Shahli v. Emperor reported in AIR 1932 Sind 201 it was pointed out that even indirect control over the movements of suspects by the police would amount to "police custody" within the meaning of that section. In Gurdail Singh v. Emperor reported in AIR 1932 Lah 609 also the same principle was emphasised and it was observed that there may be St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 89 police custody without a formal arrest.
In Laxmi Narayan v. State of Rajasthan reported in 1983 WLN 497 Rajasthan High Court noting that custody is not equivalent to arrest was of the view that that word custody in Section 27 does not necessarily amount to detention or confinement and if the accused is in surveillance, it amounts to custody.
In Maharani v. Emperor reported in AIR 1948 All 7 it was held that:-
"The word custody in Section 26 or 27, Evidence Act, does not mean formal custody, but includes such state of affairs in which the accused can be said to have come into the hands of a police officer or can be said to have been under some sort of surveillance or restriction."
In Pharho Shahwali Vs. Emperor reported in AIR 1932 Sind 201, the High Court observed as under:
"The word "custody" has not been defined by the Act. But the ordinary sense is sufficiently clear. Two things there must be. First, there must be some limitation imposed upon the liberty of the confessor. Second, this limitation must be imposed either directly or indirectly by the police."St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 90
Now coming to the facts of the present case. PW9 Puran Chand in his deposition before the court has testified that it was the accused Harish Dua who led him and the police party to Ganda Nala near Police Station Rajouri Garden and pointed out from the bridge on nala on which he dived and swam in the nala for about half an hour and could retrieve a country made pistol which he had showed to the accused and police officials and the accused identified the same as the one which he had thrown in the nala. According to him, there was mud on the country made pistol which he had retrieved and it was taken to the police station and on checking, it found to contain a cartridge and the sketch of both the katta and cartridge was prepared. PW9 Puran Chand has proved his signatures on the various recovery memos and has proved that he is working as Diver for the last fifty years. This witness who is an employee of Municipal Corporation of Delhi and has no connection with the police, has denied the suggestion made by the Ld. defence counsel that he is a stock witness of Delhi Police and has deposed at their instance. He has admitted having deposed in a number of cases since he is regularly called by Delhi Police for assisting in the investigations. This witness has been given various appreciation certificates for his duties as Life Guard at Yamuna Bank.
Ld. counsel for the accused has argued that no reliance can be placed on the testimony of this witness who is a stock witness of the police and therefore, his testimony is liable to be rejected on this ground. I have considered the submissions made.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 91I may observe that Puran Chand (PW9) is an employee of Municipal Corporation of Delhi and it is only natural that he would be called by the various agencies for assistance including the Delhi Police to assist them in investigation of cases the course of his duties as Diver/ Life Guard and it is for this reason that he is appearing as their witnesses in all the cases where he has assisted them in investigations and therefore, cannot be termed as a stock witness. This suggestion made by the Ld. counsel at the time of examination of this witness, is general and vague. No case has been cited where Puran Chand has testified as a witness and where his testimony has been discarded by the court of law. Merely because he has deposed in a number of cases will be no reason to discard his testimony and I find no reason to disbelieve this witness.
Ld. counsel for the accused has further argued that the case of the prosecution is that the recovery of the weapon of offence was from Sudesrshan Park drain whereas it is evident from the testimony and cross-examination of the witness Puran Chand (PW9) that it was recovered from Najafgarh Nala where the depth of water is eight to ten feet. In this regard, I may observe that Sudershan Park drain empties in the Najafgarh drain and the distance between the place of recovery and the place where the Sudershan Park drain empties is very less. Puran Chand (PW9) the Diver is not a resident of the area and is working as Diver/ Life Guard at Yamuna Bank and it is only natural that he is not well versed with the topography and details of the area. He has St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 92 correctly identified the place where the recovery was made and therefore, under these circumstances whether the place where the recovery was effected, was Najafgarh drain or Sudershan Park drain would not really matter. Thus the recovery of weapon being duly proved which is in fact Sudershan Park drain and not Najafgarh drain as wrongly referred to by diver Puran Chand (PW9).
Ld. counsel appearing on behalf of the accused has also argued that the accused was already in the custody of police and had crossed this Sudershan Park drain on many occasions but the accused never pointed out this place of recovery to them earlier, which shows that the recovery has been falsely effected and no disclosure was made by the accused which was recorded by the investigating officer himself at later stage. He has also pointed out that there was no mud stains on the paper on which the khaka/ sketch of the katta was prepared despite the fact that its sketch was prepared in the same condition as per the investigating officer. In this regard, I may observe that the accused cannot take the benefit of his own wrongs and merely because he chose not to point out the place where he had thrown the weapon on earlier occasions while crossing the area, would be no reason to doubt the recovery of katta particularly when the same has been duly proved by an independent public witness Puran Chand (PW9) who is a Diver/ Life Guard by profession which weapon he has also identified in the court as Ex.P-2 and Ex.P-3. Further, the absence of the mud stains on the paper when the sketch was prepared, has been duly St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 93 explained in the testimony of the diver Puran Chand (PW9) after recovering/ retrieving the katta, he cleaned the same wither water.
Under these circumstances, since the accused Harish Dua was under the control and custody of police when he made the disclosure statement, therefore, the disclosure statement Ex.PW17/H, to the extent it relates to the fact that certain articles i.e. weapon of offence had been thrown by him in Sudershan Park drain is admissible in evidence under Section 27 of Evidence Act.
Therefore, I hereby hold that the prosecution has successfully proved that the accused Harish Dua after the use of desi katta, threw the same in Supdershan Park drain which he got recovered and the forensic evidence duly proves that the bullet recovered from the head of the deceased was fired from this desi katta. It has also been duly proved that the weapon of offence is a firearm and ammunition as defined under Arms Act and the sanction accorded by the Deputy Commissioner of Police under Section 39 of Arms Act which is Ex.PY has been duly proved by the prosecution in accordance with law.
Forensic Evidence:
The postmortem report Ex.PW14/A has been proved by the Autopsy Surgeon Dr. L.C. Gupta (PW14) who in his testimony has also proved the recovery of bullet from the head of the deceased which was duly sealed and handed over to the investigating officer. The ballistic report Ex.PX (admissible in St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 94 evidence and not disputed by the accused) proves that the deformed bullet marked exhibit EB1 retrieved from the body of the deceased at the time of postmortem examination corresponded to the bullet of 8 mm/ .315" cartridge. The individual characteristic found on the exhibit EB1 were identical to the test fired bullet. It, therefore stands established that the bullet recovered from the head of the deceased had been fired through the country made pistol exhibit F1 duly recovered from the Sudershan Park drain on the pointing out of the accused.
Medical Evidence:
Dr. L.C. Gupta (PW14) has duly proved the postmortem report of the deceased which is Ex.PW14/A and has proved the recovery of the bullet from the head of the deceased. He has proved his opinion on the aspect of cause of death which according to him was shock resulting from extensive carnio cerebral damage (head injury) consequent upon projectile firearm weapon injury caused by other party which was sufficient to cause death in ordinary course of nature. In so far as the cause of death is concerned it is not disputed by the accused that it was caused due to the bullet injury but Dr. L.C. Gupta in his opinion has also opined that since there was postmortem staining at two different places and the deceased was a well built, due to which reason the possibility of the offence having committed elsewhere and body being shifted cannot be ruled out and therefore, according to him there is a possibility of involvement of more than one St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 95 person. Ld. counsel for the accused has submitted that this raises a serious doubt on the manner in which the investigations have been conducted.
I have gone through the cross-examination of Dr. L.C. Gupta (PW14) dated 29.8.2009 first conduct by the Ld. Addl. PP for the State and then by the Ld. Defence counsel. It is evident that in his cross-examination by Ld. Addl. PP for the State, the witness has been confronted with certain news articles and the previous allegations made against him by DG (Prisons) Sh. B.K. Gupta. He has stated that the nature of questions put by the Ld. Addl. PP could not have been put in any other case in which he had conducted the postmortem and it appears from the nature of questions that the Ld. Addl. PP is rather helping the accused by de- valuing the evidentiary value of the postmortem report, on which there was a specific Court Observation made by the Ld. Predecessor of this court as under:
All such evidentary value of the deposition of the witness which include his cross examination by Ld. APP besides the documents prepared by him shall be considered at the time of final judgment.
This being so and having considered the material before me, I now hold that in so far as the postmortem of the deceased and the cause of death is concerned the same has been proved by Dr. L.C. Gupta. His opinion as to whether the involvement is of single St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 96 person or more than one person is of no relevance to this court and is able to be ignored in the absence of any other direct or circumstantial evidence suggesting the involvement of more than one persons. Merely because the deceased is a well built it cannot be inferred that there could be involvement of more than one person since Dr. L.C. Gupta had no occasion of seeing or observing the physical stature of the accused. Any opinion in this regard should have been made by him only after observing the physical stature of the deceased as well as that of the accused involved in the offence. In so far as the aspect of postmortem staining being present at two places are concerned, the possibility of the offence being committed at another place is only one of the possibilities. The other possibility is that the offence was committed at the same place but the position of the body was changed thereby resulting into a postmortem staining at two places.
Time of death:
In so far as the aspect of time of death is concerned the Ld. Counsel appearing on behalf of the accused has tried to raise a confusion with regard to the same vis-a-vis the reliability of the testimonies of the witnesses who had last seen the deceased alive with the accused. It has been argued by the Ld. Counsel that at the time when the dead body was noticed in the morning at about 6:10 am by Ct. Ashok Kumar (PW12) it was in sitting posture and Rigor Mortis was already set in as evident from the testimony of Ct. Ashok Kumar and therefore, under these circumstances since it St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 97 takes about twelve to fifteen hours to complete, hence the death would have occurred at least 12 to 15 hours before the setting in and completion of the Rigor Mortis and therefore, the last seen evidence of the eye witness including the brother of the deceased and the employee of Rajeev Verma and also of Vipin Sikka are liable to be ignored under these circumstances. In this regard, I may observe that the time for setting of Rigor Mortis for its completion varies on the basis of the whether conditions. Rigor Mortis or stiffness of death is one of the recognizable signs of death that is caused by a chemical change in the muscles after death, causing the limbs of the corpse to become stiff and difficult to more or manipulate. In humans it commences after about two to three hours, reaches maximum stiffness after eight to ten hours depending upon the whether conditions (not 12 to 15 hours as claimed by the Ld. counsel) and gradually dissipates until approximately 72 hours (three days after the death). Also, heat sources or hot weather can speed up the process of Rigor Mortis. Rigor Mortis is a process which occurs after death when respiration in organisms ceases to occur, depleting the corpse of oxygen used in the making of Adenosine triphosphate (ATP). ATP is no longer provided to operate the SERCA pumps in the membrane of the sarcoplasmic reticulum, which pumps calcium ions into the terminal cisternae. This causes calcium ions to diffuse from the area of higher concentration (in the terminal cisternae and extracellular fluid) to an area of lower concentration (in the sarcomere), binding with troponin and allowing for crossbridging St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 98 to occur between myosin and actin proteins. Unlike normal muscle contractions, the body is unable to complete the cycle and release the coupling between the myosin and actin, creating a perpetual state of muscular contraction, until the breakdown of muscle tissue by digestive enzymes during decomposition.
The time of Rigor Mortis may differ on the basis of the contents of calcium vitamin and water soluble proteins in the body at the time of death. The degree of Rigor Mortis is used in forensic pathology to determine the approximate time of death. It may be observed that the time of death so ascertained is only an approximation and not accurate. Therefore, in the present case merely because the Rigor Mortis had set in the body in the morning at about 6:10 am when it was discovered, is no reason to discard the testimony of the witness who had last seen the deceased alive with the accused since Rigor Mortis almost completed at about 6:10 am, the death under these circumstances could have been occurred about eight to ten hours prior to this i.e. anytime between 8:00 pm to 10:00 pm since weather conditions were hot, the incident being of 20th April. Therefore, under these circumstances, as observed by the autopsy Surgeon Dr. L.C. Gupta (PW14) the deceased being stout built and able bodied person, the protein, calcium and vitamin level in the muscles would have been naturally more and under the given circumstances when the deceased had a history of consuming alcohol prior to his death the process of Rigor Mortis been expedited during the summer season. Evidently under the given circumstances, Rigor Mortis would St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 99 have commenced within two to three hours after the death and completed within eight to twelve hours. I, therefore find no merit in the argument raised by the Ld. Counsel appearing on behalf of the accused for seeking rejection of the testimonies of the witnesses who had last seen the accused alive with the deceased particularly of Anil Rana (PW5) and Shankar Kumar (PW6) on this count.
Recovery of motorcycle from the spot:
The case of the prosecution is that Ct. Ashok Kumar (PW12) who was on vehicle checking duty had noticed the motorcycle bearing registration no. HR-12H-3822 on which he went near it and it was then that he noticed the body of the deceased near the wall. In his testimony Rakesh Rana (PW3), the brother of the deceased who had first reached the spot, has deposed that the said motorcycle belonged to his maternal uncle (Mama) Azad Singh Hooda whose actual registration no. is HR-12H-3823 but was wrongly printed as 3822 which was later on clarified by the Registering Authority as 3823. Ld. counsel appearing on behalf of the accused has objected to this clarification given by Rakesh Rana (PW3). In this regard, I may point out that Azad Singh Hooda has in his deposition as PW4 specifically deposed that he is the registered owner of Passion Plus motorcycle bearing registration no. HR-12H-3823 and was given a Kachhi slip by the registration authority, Rohtak mentioning the registration no. 3822 which slip he has placed on record on the basis of which he had St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 100 painted the number on the motorcycle as 3822 and according to him, the registration certificate mentioned in the no. as 3823 was issued after one month of the date of registration. He has proved that the said motorcycle had been taken by his nephew Harish (deceased) a few days after its purchase and it remained in his possession till the date of occurrence. He has in his cross-
examination stated that the motorcycle Ex.P-1 was insured at the time of its delivery. The recovery of this motorcycle from the spot has been duly proved by Ct. Ashok Kumar (PW12) and also by the brother of the deceased namely Rakesh Rana (PW3) and there is no reason to doubt the same. I, therefore, hold that the discrepancy with regard to the registration number has been duly explained.
Subsequent conduct of the accused:
As per the provisions of Section 8 of the Indian Evidence Act, 1872:
Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 101 issue or relevant fact, and whether it was previous or subsequent thereto.
It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, good-faith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
Applying these principles of law to the fact of the present case, it is evident from the testimonies of the various witnesses particularly the official witnesses of the police that the accused Harish Dua had been summoned in the Police Station for purposes of interrogation and investigations which investigations he did not join. It is apparent from the testimony of SI P.C. Yadav (PW17) duly corroborated by the testimony of investigating officer Inspector Jaiveer Singh (PW20) that the accused was not available at his residence and was in a process of fleeing and it was only on the receipt of secret information in this regard that he was apprehended by the police. The evidence on record reveals that at St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 102 the time when he was apprehended the accused was about to leave his house along with a bag for some unknown place and his mother and wife created an obstruction due to which reason the investigating officer had to take him to police chowki where the accused Harish Dua was formally arrested. This conduct of the accused is indicative to the fact that he wanted to avoid the investigations in which he was a suspect for which no explanation is forthcoming on his behalf and hence the presumption for the same is against the accused.
Discrepancies/ contradictions:
Ld. counsel appearing on behalf of the accused has in the memorandum of arguments submitted to the court under Section 314 Code of Criminal Procedure, pointed out the various discrepancies and contradictions in the testimonies of the various prosecutions witnesses particularly the public witnesses on the aspect of time of the incident. He has argued that the incident is alleged to have occurred on 20.4.2006 at unknown time whereas the police came to know about the same on 21.4.2006 at about 6:10 am and the family of the deceased was informed about the same at about 7:30 am on 21.4.2006. He has pointed out that there is a discrepancy in the time so mentioned by Rakesh Rana (PW3), the brother of the deceased and the time when his other brother Anil Rana (PW5) reached the spot. Ld. counsel has also pointed out the discrepancy with regard to the time when the statement of Anil Rana (PW5) was recorded i.e. whether it was immediately after the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 103 last rites of the deceased or two to three hours of the cremation. He has further pointed out the discrepancies in the statements of public witnesses who had deposed having seen the deceased in the factory of Rajeev Verma @ Bobby (PW8).
Before coming to the discrepancies so pointed by the Ld. counsel for the accused, it is necessary to discuss the law in this regard. In the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like......... .......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 104 treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that When the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 105 true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. But Courts should bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 106 details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 107 liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
Applying these settled principles to the facts of the present case, it is evident that in so far as Shankar Kumar (PW6) who is the employee of Rajeev Verma and Rajeev Verma (PW8) are concerned, they have both corroborated each other on the aspect that the deceased had come to the factory of Rajeev Verma and was consuming alcohol. There is no reason to disbelieve the testimony of Shanker Kumar (PW6) who is an independent witness and has not personal interest qua the accused or the deceased when he states that he had seen the accused that the deceased having drinks together at 9:00 pm when he wanted to close down the factory and had to ask Rajeev Verma to requested these persons to leave. In so far as Rajeev Verma (PW8) is concerned he is a common friend of the deceased and the accused and his attempt St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 108 apparently is to save the accused when he admits that the accused and the deceased had met on two occasion i.e. at Moti Nagar while he and the deceased were returning from Pusa Road where they had a conversation and later on in his factory but states that the accused left before he saw the deceased drinking. Similarly, Vipin Sikka (PW10) was the common friend of both the accused and the deceased and has deposed regarding the accused having taken some money on loan from the deceased but does not state anything about the date of incident and understandably so, on account of his close relationship between the two which is despite the fact that the call details Ex.PW19/B reveal that the accused had given him a call from his mobile phone on his (Vipin Sikka's) land line number twice and he appears to have attended the second call which call lasted about three minutes. In so far as the testimonies of Rakesh Rana (PW3) and Anil Rana (PW5) are concerned, they have both corroborated each other on the aspect of identifying the body of the deceased; its position and also with regard to the subsequent investigations. I may state that under the given circumstances, when the weapon of offence has been recovered and the forensic report and the medical evidence unequivocally point out towards the guilt of the accused, the discrepancies as pointed out by the Ld. counsel are only minor and irrelevant.
It is a settled law that it is the actual crime which is important than the investigation. 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 St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 109 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. I do not find any substance in the grounds raised by the Ld. counsel for the accused particularly when 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 would shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
FINAL CONCLUSIONS:
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 pre-requisites 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 St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 110 established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
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.
It is settled law that when 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).
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 111Applying the settled principles of law to the facts of 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. They have proved having gone to the spot of incident. The identity of the accused stand established. It has been proved that the deceased used to lend money on exorbitant rates and some money was given to the accused Harish Dua as loan by the deceased Harish Rana for which the deceased was charging the exorbitant rate of interest and was insisting upon its return. It has also been proved that the accused felt harassed and tortured by the conduct of the deceased who often used extremely foul language with him. It also stands proved that the deceased Harish Rana was last seen in the company of the accused Harish Dua and the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased was found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Further, it has been proved and established that the death of Harish Rana was caused on account of shock resulting from extensive carnio cerebral damage (head injury) consequent upon projectile firearm weapon injury caused by other party which was sufficient to cause death in ordinary course of nature. The prosecution has also proved the disclosure statement of the accused Harish Dua pursuant to which he lead the police party to the place where he had thrown the desi katta in the drain from where it was retrieved/ recovered on his St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 112 pointing out along with the empty cartridge. The Autopsy Surgeon has duly proved the removal of the bullet from the head of the deceased. The FSL report proves that the bullet which was recovered from the head of the deceased was fired from the weapon of offence recovered at the instance of the accused and it was having identical characteristics to the test fired bullet.
The evidence of the prosecution is natural and trustworthy and find due corroboration from the medical and forensic evidence and the witnesses of the prosecution have been able to built up a continuous link. I hereby hold that the circumstances which the prosecution has put forward lead to an unequivocal conclusion that in all human probability it is the accused who had committed the murder of the deceased. Further, the prosecution has also proved the use of the firearm by the accused and the sanction accorded by the Deputy Commissioner of Police under Section 39 of Arms Act.
In view of my above discussion, I hereby hold the accused Harish Dua @ Sanjay guilty of the offence under Section 302 Indian Penal Code and Section 27 of Arms Act for which he is accordingly convicted.
Case be listed for arguments on sentence on 25.1.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 15.1.2011 ASJ-II(NW)/ ROHINI
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 113
15.1.2011
Present: Addl. PP for the State.
Accused Harish Dua in JC.
Vide my separate detailed order dictated and announced in the open court, the accused has been held guilty of the offence under Section 302 IPC and 27 of Arms Act for which the accused is accordingly convicted.
Be listed for arguments on sentence on 25.1.2011.
(Dr. Kamini Lau) ASJ-II(NW)/ 15.1.2011 St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 114 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Session Case No. 690/06 Unique Case ID No. 02404R0285132006 State Vs. Harish Dua @ Sanjay S/o Sh. Ramlal Dua R/o A-157, Sudarshan Park, New Delhi FIR No.: 387/2006 Under Section: 302 Indian Penal Code & 25,27/54/59 Arms Act Police Station: Rajouri Garden Date of Conviction: 15.1.2011 Date of arguments: 25.1.2011 Date of Sentence: 29.1.2011 APPEARANCE:
Present: Sh. Taufiq Ahmed, Addl. PP for the State.
Convict Harish Dua @ Sanjay in judicial custody with Sh. Ranjan Roy, Advocate.
ORDER ON SENTENCE:
Vide my separate detailed judgment dated 15.1.2011 the accused Harish Dua @ Sanjay has been held guilty of the offence under Section 302 Indian Penal Code and Section 27 of Arms Act.
This is a case where the accused Harish Dua @ Sanjay committed the murder of his close friend Harish Rana. The case of the prosecution was that the deceased Harish Rana was a money St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 115 lender (not a registered money lender) and used to give money on exorbitant rates of interest and for the recovery of the same, used foul tongue. The accused Harish Dua @ Sanjay who was the friend of deceased Harish Rana had taken some loan from the deceased and was unable to repay the same on which the deceased Harish Rana often abused and insulted the accused Harish Dua @ Sanjay. The accused felt insulted and tortured and could not bear the same and therefore, decided to finish Harish Rana. On 20.4.2006 the accused committed the murder of deceased in a pre-
planned manner with a country made pistol after which he threw the same in the Ganda Nala at Sudershan Park. The body of the deceased was found next morning by Ct. Ashok Kumar. During investigations it was revealed that the deceased was last seen alive with the accused when they had drinks in the factory of one Rajeev Verma and thereafter when they were standing on a rehri of eggs near the bus stand ESI Hospital. After the apprehension and arrest of the accused Harish Dua, he admitted his involvement in the crime and disclosed to the police that he had committed the offence with a desi katta which he threw in the Sudershan Park drain after committing the crime. Pursuant to the same he led the police party to Sudershan Park drain from where Puran Chand, Diver by profession who is also an employee of MCD, retrieved the desi katta on the pointing out of the accused Harish Dua which the accused identified as the same with which he had committed the murder of Harish Rana. On the basis of the testimonies of the various prosecution witnesses, the medical evidence and the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 116 forensic evidence which proves that the bullet recovered from the head of the deceased was shot from the country made pistol got recovered by the accused; this court has held the accused Harish Dua guilty of the offence under Section 302 Indian Penal Code and Section 27 of Arms Act and convicted him accordingly.
I have heard the arguments on the point of sentence. Ld. counsel appearing on behalf of the convict has vehemently argued that the convict is the only son of his aged parents and is the sole bread earner of his family. He also submits that the convict is a first time offender and is not involved in any other case. According to him, the convict is in judicial custody w.e.f. 27.4.2007 till date. He requests that a lenient view be taken against him.
Ld. Addl. PP for the State Sh. Taufiq Ahmed has on the other hand, pleaded for a strict punishment for the convict on the ground that the convict does not hesitate to take law into his hands and taking the life of other. He further submits that the convict has committed the murder in a planned and cold blood and therefore, he prays for a death penalty for the convict so that it should serve as a precedent for others. The Ld. Addl. PP has placed his reliance on the case 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. Ld. Addl. PP has also submitted that in the alternative if this court comes to the conclusion that the present case does not fall within the 'Rarest of Rare Category' St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 117 then it should be considered to be falling under the category of Rare Case where the convict Arvind Kumar should not be held entitled to any remissions. In this regard he has placed his reliance in the case of Shree Gopal @ Mani Gopal Crl. Appeal No. 528/09 decided on 31.8.2009.
I have considered the rival contentions. At the 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 kept in mind before awarding a death sentence in any given case.
The necessity of there being a proportion between the offences and punishment has been long felt. However off late various judgments of the higher courts of the land and various jurists have tried to provide certain rules to this moral arithmetic as under:
(i) The punishment sought to be inflicted for any given offence should be such that the evil of the punishment must be made to exceed the advantage of the offence.
ii) The more deficient in certainty a punishment is, the severer it should be.
iii) The greater an offence is, the St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 118 greater reason there is to hazard a severe punishment for the chance of preventing it, and
iv) Same punishment for the same offence ought not to be inflicted upon all delinquents. It is necessary to pay some regard to the circumstances which effect sensibility.
However, 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.
I have applied my mind to the various judgments and the circumstances placed before me. Before proceedings to decide the quantum of sentence, it is necessary to consider the various aggravating circumstances in the light of mitigating circumstances. In so far as the aggravating circumstances are concerned, it is evident that the murder of the deceased Harish Rana had been committed in a planned manner by the convict. The mitigating circumstances are that the convict Harish Dua @ Sanjay is a young St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 119 man of thirty eight years having a family comprising of aged parents who are totally dependent upon him being the sole bread earner of his family. He is 12th class pass and is a cable contractor by profession. He is a first time offender and is not involved in any other case and is in custody for last three years and nine months.
No doubt all murders are most degrading and depraving but the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case.
In this background, I hereby award the following sentences to the convict Harish Dua @ Sanjay:
1. The convict Harish Dua @ Sanjay is sentenced to Rigorous Imprisonment for life and fine to the tune of Rs.25,000/- for the offence under Section 302 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of two months.
2. Further, the convict is sentenced to Rigorous Imprisonment for a period of Three Years and fine to the tune of Rs.2,000/-
for the offence under Section 27 of Arms Act. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one week.
Both the sentences shall run concurrently. Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 120The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached with his jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 29.1.2011 ASJ-II(NW)/ ROHINI
St. Vs. Harish Dua, FIR no. 387/06, PS Rajouri Garden Page No. 121