Delhi District Court
State vs . 1. Kamlesh on 30 July, 2013
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 42/2013
Unique Case ID: 02404R0046842013
State Vs. 1. Kamlesh
S/o Vivek
R/o Jhuggi No. 404, Nehru Camp,
(Arjun Mobile ki Dukan ke uper)
Haiderpur, Delhi88.
Also: Village Rassolpur Dargah, PS Baskhari
Distt.: Ambedkar Nagar, U. P.
(Acquitted)
2. Anil Kumar
S/o Jite
R/o Jhuggi No. 404, Nehru Camp,
(Arjun Mobile ki Dukan ke uper)
Haiderpur, Delhi88.
Also: Village Rassolpur Dargah, PS Baskhari
Distt.: Ambedkar Nagar, U. P.
(Acquitted)
FIR No. : 309/2012
Police Station : Shalimar Bagh
Under Section : 302/34 Indian Penal Code
Date of committal to Sessions Court : 19.03.2013
Date on which orders were reserved : 30.07.2013
Date on which judgment pronounced : 30.07.2013
State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 1 of 27
JUDGMENT (ORAL)
Brief Facts:
(1) As per the allegations, on 14.11.2012 at about 12:30 AM, the accused Kamlesh and Anil Kumar caused injuries on the person of Vijay by giving him danda and brick blows on his head which injuries were opined to be dangerous on account of which they caused the death of Vijay Kumar.
Brief Case of Prosecution:
(2) Case of the prosecution in brief is that on 14.11.2012 on receipt of DD No. 10B SI Sanjeev Arora along with Ct. Lakhan reached at the spot i.e. Jhuggi No. 404, Nehru Camp and came to know that a quarrel had taken place and the injured had been removed to BJRM Hospital. Ct. Lakhan remained at the spot while SI Sanjeev Arora reached BJRM Hospital but since the injured was shifted to Trauma Centre, Metcalf Centre hence he went there and collected the MLC of injured wherein the doctor had mentioned "physical assault, CLW over scalp, patient unfit for statement. SI Sanjeev Arora met one Nathni in the hospital who told him that the injured Vijay is his son. Thereafter, on inquiry, SI Sanjeev Arora came to know that a quarrel had taken place between some boys at the roof of Jhuggi No. 404 where blood stains were also found. The spot was got inspected from Crime Team and photographs were taken and FIR was registered after which the exhibits State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 2 of 27 were lifted and site plan of the spot was also prepared. (3) Thereafter, on 17.11.2012 the alleged eye witness of the incident namely Sanjay met the police and informed that in the night of Diwali on 14.11.2012 his neighbour Kamlesh and Anil were gaming with playing cards and at about 12.00midnight - 12.30 AM after hearing the noise, he came out from his jhuggi and saw that Kamlesh and Anil were giving danda blows to Vijay resident of the nearby jhuggi. The said Sanjay further told the police that he tried to pacify the quarrel and told Kamlesh and Anil not to give beatings to Vijay but they continued beating him and thereafter Anil picked up a half brick and gave the blow of the said brick on the head of Vijay and on account of which Vijay fell down on the ground after which both Kamlesh and Anil ran away from the spot. On 17.1.2012 the injured Vijay had expired in the Trauma Centre. The accused Kamlesh and Anil were apprehended who allegedly disclosed their involvement in the incident pursuant to which they were arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE (4) Charge under Section 302/34 Indian Penal Code was settled against the accused Kamlesh and Anil Kumar to which they pleaded not guilty and claimed trial.
State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 3 of 27 EVIDENCE (5) In order to discharge the onus upon it, the prosecution has examined as many as twenty two witnesses:
Public Witnesses:
(6) PW12 Nathini is the father of the deceased who has deposed that he had identified the dead body of his son Vijay at the BJRM Hosital Mortuary on 18.11.2012 and his statement was recorded by the police in this regard which is Ex.PW12/A. He has not been cross examined on behalf of the accused despite opportunity and his testimony has gone uncontroverted.
(7) PW13 Sanjay is the star witness of the prosecution who is the alleged eye witness but he has not supported the prosecution case. He has deposed that he does not know about any facts of this case nor he know any person with the name of Vijay. According to him he knew Kamlesh and Anil being the resident of Nehru Camp Haiderpur and also the original resident of his village and he has identified them in the court. He has deposed that he does not know who caused the death of Vijay as he (witness) was sleeping at that time.
(8) In leading questions put to the witness by Addl. PP the witness has denied that in the night of Diwali on 14.11.2012 his neighbour accused Kamlesh and Anil were gaming with playing cards or that at about 12.00midnight - 12.30AM after hearing the noise, he came out State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 4 of 27 from his jhuggi and saw that accused Kamlesh and Anil were giving danda blows to Vijay resident of the nearby jhuggi. He has further denied that he tried to pacify the above said persons accused Kamlesh and Anil not to give such beatings to the said person otherwise he would die but they continued in their beatings. He has further denied that accused Anil picked up a half brick and gave a blow of the said brick on the head of Vijay and they did not left Vijay and continued in their beatings or that when Vijay fell down on the ground, thereafter both accused Kamlesh and Anil ran away from there. He has also denied that on 17.11.2012 accused Kamlesh and Anil were arrested by the police. (9) In his cross examination by Addl. PP, the witness has deposed that police did not make any inquiries from him nor recorded his statement. He has denied having stated to the police that in the night of Diwali on 14.11.2012 his neighbour accused Kamlesh and Anil were gaming with playing cards and at about 12.00 midnight - 12.30 AM after hearing the noise, he came out from his jhuggi and saw that accused Kamlesh and Anil were giving danda blows to Vijay resident of the nearby jhuggi and that he tried to pacify the above said persons accused Kamlesh and Anil not to give such beatings to the said person otherwise he would die but they continued in their beatings. The witness has further denied having told the police that accused Anil picked up a half brick and gave the blow of the said brick on the head of Vijay and they did not left Vijay and continued in their beatings and that when Vijay fell State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 5 of 27 down on the ground, thereafter both accused Kamlesh and Anil ran away from there. The witness has further denied to have told the police that on 17.11.2012 accused Kamlesh and Anil were arrested by the police. The witness was confronted with his statement Ex.PW13/PX1 where the aforesaid facts are found so recorded. The statement Ex.PW13/PX1 was read over to the witness but he has denied having told the same to the police. He has denied that the police recorded his statement on 17.11.2012 or that he is not deposing true facts before the court as he has been won over by the accused Kamlesh and Anil because they belonging to his village area. The witness has deposed that he was sleeping in the night of Diwali and woke up in the next morning at about 6.00AM. He has denied that he was not sleeping for the whole night or that he did not wake up at 6.00 AM. He has further denied that due to the pressure of the family members of the accused persons he is not deposing true facts before the court.
(10) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he is deposing true facts before the court without any pressure from anyone including the family members of the accused persons.
(11) PW15 Islamuddin has also not supported the earlier version given by him to the police. He has deposed that he does not remember the date but on the day of Diwali of last year he was passing through outer ring road no. 26, Haiderpur at about 1.151.30AM when he saw the State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 6 of 27 gathering of public persons at the Nehru Camp, Haiderpur, Delhi and one person asked for his mobile phone bearing no. 9213858097 and he gave the same to him and he made call at 100 number. He has deposed that he does not know name of said person and thereafter he went away from there with my phone.
(12) In leading questions put to the witness by Ld. Addl. PP the witness has deposed that he does not know whether the date was 14.11.2012 but states that it was the day of Diwali. He has denied that at about 12.0012.30 AM when he entered in the Nehru Camp Jhuggies someone informed him that a quarrel took place in the jhuggies and then after climbing he saw that one boy was unconscious and blood was lying there. He has denied that he picked up said boy and brought him on the ground and thereafter he made call at 100 number or that the said boy was sent to the hospital through the ambulance. This witness has not been cross examined on behalf of the accused despite opportunity. (13) PW18 Pappu has also not supported the earlier version given by him to the police. He has deposed that he knew Kamlesh and Anil being original resident of his village area and also residing in his neighborhood at Hyderpur but he does not know any person namely Vijay. According to him, on the day of Diwali in the last year he was sleeping in his house and he does not know anything about this case. He does not know if any person namely Vijay was given beatings at Jhuggi No. 404. He has however identified Kamlesh and Anil in the court. State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 7 of 27 (14) In the leading questions put by Addl. PP the witness has denied that on 14.11.2012 accused Kamlesh and Anil were gaming with playing cards. He has denied that at about 12 to 12:30 AM, after hearing the noise he came out of his jhuggi and saw that accused Kamlesh and Anil giving beatings to Vijay and Sanjay was also present there who was trying to pacify the matter and also saying that the said boy be not given beatings to such extent that he would die. The witness has further denied that the accused Kamlesh gave danda blows to Vijay and Anil gave brick blow on the head of Vijay as a result of which Vijay fell down and thereafter Kamlesh and Anil ran away from there and despite his shoutings they could not be apprehended.
(15) In his crossexamination by Addl. PP, the witness has deposed that the police did not make inquiry from him and also did not record his statement. He has also denied that on 20.11.2012 police recorded his statement or that he had stated to the police that on 14.11.2012 accused Kamlesh and Anil were gaming with playing cards and at about 12:00 AM to 12:30 AM, after hearing the noise he came out of his jhuggi and saw that accused Kamlesh and Anil were giving beatings to Vijay and Sanjay was also present there who was trying to pacify the matter and also saying that the said boy be not given beatings to such extent that he would die but the accused Kamlesh gave danda blows to Vijay and Anil gave brick blow on the head of Vijay as a result of which Vijay fell down and thereafter Kamlesh and Anil ran away from State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 8 of 27 there and despite his shouting they could not be apprehended. Witness has been confronted with the portion of A to A of statement Ex.PW18/PX1 where these facts are found so recorded. The statement Ex.PW18/PX1 has been read over to the witness but the witness has denied having made the same to the police. The witness has deposed that he does not know any Nathini nor he know the jhuggi of Vijay and Nathini. He has deposed that Jhuggi No. 404 is belonging to one Gupta and he (witness) is not residing there. He further deposed that he slept at about 10:30 PM on the day of Diwali and wake up on the next morning. According to him he does not know anything about the happenings on the roof as he was in deep sleep. He has denied that he is not deposing true facts before the court because Kamlesh and Anil are residents of his village area or that due to the pressure of the family members of the accused persons or that he has been own over by the accused persons. The witness has not been cross examined on behalf of the accused persons despite opportunity.
Medical / Forensic Evidence:
(16) PW11 Dr. Bhim Singh has deposed that on 18.11.2012 at 10.30 AM, he conducted postmortem on the dead body of Vijay S/o Nathini, 17 years, male at the request of SI Sanjeev Arora with alleged history of assault of 14.11.2012 and expired on 17.11.2012 during treatment at about 12.00PM. On examination he found following external State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 9 of 27 injuries:
1. Surgical stiched craniotomy wound left side of head.
2. Stitched wound 4cm over right parietal region.
3. Brownish dried scabbed abrasion 3cm x 2cm right side of face
4. Brownish scabbed abrasion 6cm x 2cm over left thigh.
5. Scabbed abrasion 1cm x 1cm over eight elbow.
6. Scabbed abrasion 1.5cm x 1cm left shin of tibia.
(17) The witness has deposed that on examination of Head craniotomy wound left side of head with effusion of blood right parietal region underline bone piece 8cm x 8cm, brain full of pus and edema. He has further deposed that on examination of Chest, both lungs were edematous, full of frothy purulent fluid with consolidation. He has also gave opinion regarding cause of death i.e. due to Septisemia consequent upon infection and states that all the injuries were antemortem and about 4 to 5 days old and could be caused by blunt force / surface impact and the time since death as per hospital record. His detailed postmortem report is Ex.PW11/A bearing his signatures at point A. (18) The witness has deposed that on 17.04.2013 the weapon of offence i.e. one bamboo stick was produced before him and after examining the same, he gave his subsequent opinion that the injuries State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 10 of 27 mentioned in the PM report that Injury No. 1, 2 and 4 could possible by above examined stick. His detailed subsequent opinion is Ex.PW11/B. (19) In his crossexamination by Ld. Defence Counsel, the witness has deposed that the above said injuries are possible due to blunt force / surface impact. He has explained that surface impact means falling on the ground or hard surface. According to him the infection was due to open injuries present on the body of the deceased and due to infectious environment in the hospital which has resulted into causing of septicemia. He has denied that he had given a false subsequent opinion on the asking of the police.
(20) PW19 Imrana is the FSL expert and has deposed on behalf of Ms. Poonam Sharma, SSO (Biology). The witness has seen the FSL i.e. biology which is Ex.PW19/A bearing the signatures of Ms Poonam Sharma at point A and the serological report which is Ex.PW19/B bearing her signatures at point A with the witness has identified. According to the biological report the blood was detected on Ex 1a,1b, 2,3,4,5,6,7,8a,8b,8c and 8d. As per the serological report the human blood of group O was found on Exhibit 2,7,8b,8c and 8d and human blood was also found on Ex 3,4,5,6 and 8a.
(21) In her crossexamination by Ld. Defence Counsel, the witness has admitted that she had not personally examined the exhibits State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 11 of 27 and has deposed on the basis of the official records. (22) PW20 Dr. Mantaran Singh Bakshi has deposed on behalf of Dr. Ashish and Dr. Shivender Singh Chandel and has identified their handwriting and signatures as he had seen them while writing and signatures. The witness has seen the MLC No. 156933 dated 14.11.2012 of unknown S/o unknown male, aged around 22 years is in the handwriting of Dr. Ashish who medically examined above said patient at about 1:00 AM on 14.11.2012 who was brought by CATS A9 Bhati Lal Meena with alleged history of physical assault at around 12:30 AM. According to the witness, Dr. Ashish prepared the above said MLC after examination which MLC is Ex.PW20/A bearing the signatures of Dr. Ashish at point A which the witness has identified. The witness has deposed that in the local examination there was CLW over scalp and swelling over right side of face and left ear bleeding present and that after medical examination patient was referred to Neuro Surgery and General surgery for further treatment and management. The witness has deposed that the death summary of above said unknown (Vijay) was prepared by Dr. Shivender Singh Chandel vide Ex.PW20/B bearing his signatures at point A which the witness has identified. The witness has deposed that according to the death summary the above said unknown (Vijay) was declared dead on 17.11.2012 at about 12 PM. (23) In the cross examination, the witness has admitted that the above said MLC and death summary were not prepared in his presence State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 12 of 27 and that the above said patient was not medically examined in his presence. He further admits that he did not gave any medical treatment to the above said patient while he was admitted in the hospital and that he is deposing on the basis of the above said MLC and the death summary or that he has no personal knowledge of the case. Police / Official Witnesses:
(24) PW1 HC Pappu Ram has been examined by way of affidavit being formal in nature which affidavit is Ex.PW1/1 bearing his signatures at points A and B wherein he has relied upon documents i.e. PCR form which is Ex.PW1/A. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted.
(25) PW2 Bati Lal Meena has been examined by way of affidavit being formal in nature which affidavit is Ex.PW2/1 bearing his signatures at points A and B wherein he has deposed that in the intervening night of 13/14.11.2012 he was posted on CATS A9 Abulance and on receipt of a call from control room he along with staff reached at Nehru Camp, Jhuggi where an unknown male was found unconscious and he took the said person Sushruta Trauma Centre for medical treatment. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 13 of 27 (26) PW3 Ct. Jagpal Singh has tendered his examinationin chief by way of affidavit which is Ex.PW3/1 wherein he has relied upon documents i.e. DD No. 45B dated 17.11.2012 copy of which is Ex.PW3/A. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted.
(27) PW4 Ct. Rajender Kumar has tendered his examination in chief by way of affidavit which is Ex.PW4/1 wherein he has relied upon documents i.e. DD No. 10B dated 14.11.2012 copy of which is Ex.PW4/A. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted.
(28) PW5 HC Yog Raj has tendered his examination in chief by way of affidavit Ex.PW5/1 wherein he has relied upon the various entries made by him in Register No. 19 being posted as MHC (M) vide Ex.PW5/A, Ex.PW5/B and Ex.PW5/C. He has further proved the entires made by him in the Register No. 21 vide Ex.PW5/D and Ex.PW5/E. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted.
(29) PW6 HC Chiranjee Lal has tendered his examination in chief by way of affidavit which is Ex.PW6/1 wherein he has relied upon State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 14 of 27 documents i.e. FIR No. 309/12 copy of which is Ex.PW6/A and endorsement on rukka which is Ex.PW6/B. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted. (30) PW7 Sikander has tendered his examination in chief by way of affidavit which is Ex.PW7/1 wherein he has stated that on 18.11.2012 he along with his brother Nathini reached at mortuary of BJRM hospital where he had identified the dead body of Vijay and after postmortem, the dead body was handed over to him. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted.
(31) PW8 SI Sanjeev Verma has tendered his examination in chief by way of affidavit which is Ex.PW8/1 wherein he has relied upon documents Crime Team Report which is Ex.PW8/A. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
(32) PW9 HC Sudhir has tendered examination in chief by way of affidavit which is Ex.PW9/1 wherein he has relied upon the photographs Ex.PW9/A1 to Ex.PW9/A10. The CD containing the above photographs is Ex.PW9/B. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted.
State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 15 of 27 (33) PW10 SI Manohar Lal has tendered his examination in chief by way of affidavit which is Ex.PW10/1 wherein he has relied upon scaled site plan which is Ex.PW10/A bearing his signatures at point A. This witness has not been cross examined on behalf of the accused despite opportunity in this regard and his testimony has gone uncontroverted.
(34) PW14 Ct. Lakhan Singh has deposed that on 14.11.2012 at about 12.45 AM (midnight) after receiving of DD No.10B he along with SI Sanjeev went to the Jhuggi No. 404, Nehru Camp, Haiderpur, Delhi where blood was lying on the roof of the jhuggi and one blood stained piece of danda and one blood stained half brick were also found on the roof of the jhuggi where they came to know that the injured was already removed to the hospital. According to the witness he remained at the spot and SI Sanjeev went to BJRM Hospital and at about 3.003.15 AM SI Sanjeev Arora came at the spot when he prepared the rukka. At about 4.00 AM he went to the police station Shalimar Bagh for registration of the FIR and after FIR No. 309/12 was got registered, he returned at the spot at about 5.00AM and handed over the copy of FIR and rukka to SI Sanjeev. The witness has deposed that the Crime team also reach at the spot, SHO also reached at the spot who inspected the scene of crime and also took the photographs. The witness has further deposed that SI Sanjeev lifted the blood from the spot with the help of cotton and kept the same in a plastic container and sealed the same with the seal of SA State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 16 of 27 and seized the same vide seizure memo Ex.PW14/A and thereafter SI Sanjeev also lifted the blood stained earth and pebbles from the spot and kept the same in a plastic container and sealed the same with the seal of SA and seized the same vide memo Ex.PW14/B. The witness has further deposed that thereafter SI Sanjeev also lifted blood from the spot with the help of cotton and kept the same in a plastic container and sealed the same with the seal of SA and seized the same vide memo Ex.PW14/C. SI Sanjeev also sealed the blood stained brick and the piece of danda separately in cloth pullandas sealed with the seal of SA and seized the same vide seizure memo Ex.PW14/D. The witness has identified the case property i.e. piece of brick as seized by the IO from the spot which brick is Ex.P1, one wooden piece as the same which was seized by the IO from the spot which wooden piece is Ex.P2. (35) In his crossexamination by Ld. Defence Counsel, the witness has deposed that when SI Sanjeev Arora left him at the spot, he remained there for about one and a half hours to two hours and during this period crime team as well SHO had reached the spot and crime team made inquiry and took photographs of the spot and inspected the scene of crime. According to the witness, SI Sanjeev lifted the blood from the spot at about 5.005.30 AM. The witness has deposed that the IO took 3040 minutes for seizing the above said articles from the spot. According to the witness, IO did not put any specific identification mark State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 17 of 27 on the recovered brick piece and wooden piece which were seized vide memo Ex.PW14/D. (36) PW16 Ct. Suresh Chand has deposed that on 17.11.2012 he along with SI Sanjeev Arora went to the Kachewala Bagh in search of the accused Kamlesh and Anil and at about 1.05PM accused Kamlesh and Anil were found present at the Kachewala Bagh and SI Sanjeev identified them. According to the witness both accused Kamlesh and Anil were interrogated by SI Sanjeev and they confessed about their involvement in the incident of this case after which SI Sanjeev arrested accused Anil vide Ex.PW16/A his personal search was conducted vide Ex.PW16/B, accused Kamlesh was arrested vide Ex.PW16/C and his personal search was taken vide Ex.PW16/D and their disclosure statements were recorded vide Ex.PW16/E and Ex.PW16/F. The witness has deposed that the accused have also pointed out the place of incident vide Ex.PW16/G and Ex.PW16/H. The witness has further deposed that at the instance of accused one danda was also recovered from the roof of the jhuggi no. 404 Nehru Camp, Haiderpur, Delhi and seized by the IO vide seizure memo Ex.PW16/I. The witness has also deposed that he does not remember the date but during investigation he along with SI Sanjeev Arora went to Sushruta Trauma Center where the doctor handed over pullanda to the IO in sealed condition with the seal of the hospital with the sample seal and IO seized the same vide seizure State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 18 of 27 memo Ex.PW16/J. He has correctly identified both accused Kamlesh and Anil in the court and also identified the case property i.e. danda Ex.P3.
(37) In his cross examination by Ld. Defence Counsel, the witness has admitted that his correct name is Suresh Kumar but in his service record his name is mentioned as Suresh Chand and he used to put signature as Suresh only. He has denied that he did not join the investigation with SI Sanjeev Arora either on 14.11.2012 and 17.11.2012. He has further denied that the accused Kamlesh and Anil were not arrested in his presence or that he had put his signatures on the above said documents i.e. arrsting documents, disclosure statements and pointing out memos and recovery memos at the instance of IO at the police station. The witness has further denied that no document was prepared in his presence or that no danda was recovered in his presence. (38) PW17 SI Sanjeev Arora has deposed that on 14.11.2012 on receiving of DD 10B Ex.PW17/A he along with Ct. Lakhan reached at Jhuggi no.404, Haiderpur. He has deposed that he found blood on the Road and also on the roof of the jhuggi. He has deposed that he went to the BJRM Hospital after leaving Ct. Lakhan at the spot but in the hospital he came to know that the injured was sent to the Trauma Center, Civil Lines, Delhi on which he reached Trauma Center and collected the MLC of injured but no eye witness was found there except father of deceased i.e. Nathini. The witness has deposed that the doctor handed State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 19 of 27 over one pullanda of the clothes of the injured in sealed condition with the seal of hospital with the sample seal and he seized the same vide memo Ex.PW16/J and thereafter he returned back to the spot and inspected scene of crime. The witness has further deposed that he called the crime team officials and the crime team officials inspected the scene of crime and took photographs and with the help of crime team officials he seized one blood stained underwear and blood stained towel from the room of the jhuggi and he sealed the same with the seal of SA and he seized the same vide memo Ex.PW17/B. According to the witness he also lifted the blood with the help of cotton from the roof the jhuggi and kept the same in a plastic container and sealed the same with the seal of SA and seized the same vide memo Ex.PW14/C. The witness has deposed that he also lifted the blood from the road in front of the jhuggi and kept the same in a plastic container and sealed the same with the seal of SA and seized the same vide memo Ex.PW14/A. The witness has further deposed that he sealed the blood stained earth with pebbles from in front of the jhuggi from the the road and kept the same in a plastic container and sealed the same with the seal of SA and seized the same vide seizure memo Ex.PW14/B. He also seized one half brick piece and one piece of wood smeared with blood from the roof of the jhuggi and sealed the same separately with the seal of SA and seized the same vide memo Ex.PW14/D. The witness has also deposed that he prepared the State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 20 of 27 rukka Ex.PW17/C and Ct. Lakhan was sent to PS with rukka after which he prepared the site plan Ex.PW17/D. According to the witness on 17.11.2012 he recorded the statement of eye witness namely Sanjay and thereafter at the instance of secret informer accused Kamlesh and Anil were arrested from HaiderpurKachewala Bagh. The witness has deposed that he arrested accused Anil vide Ex.PW16/A, his personal search was conducted vide Ex.PW16/B, accused Kamlesh was arrested vide Ex.PW16/C and his personal search was taken vide Ex.PW16/D after which their disclosure statements were recorded vide Ex.PW16/E and Ex.PW16/F. The witness has deposed that the accused persons also pointed pointed out the place of incident vide Ex.PW16/G and Ex.PW16/H. According to the witness, at the instance of accused Kamlesh, one danda was recovered from the roof of the jhuggi no. 404 Nehru Camp, Haiderpur, Delhi and seized vide seizure memo Ex.PW16/I. The witness has further deposed that on the same day, he came to know that injured Vijay was expired and on the next day i.e. 18.11.2012, he filled the inquest form which is Ex.PW17/E and recorded statement of Sikander vide Ex.PW17/F and Nathini vide Ex.PW12/A about identification of dead body and also prepared the brief facts Ex.PW17/G and made a request for postmortem vide Ex.PW17/H. The witness has deposed that after postmortem he handed over the dead body to the relatives of the deceased vide Ex.PW17/I and thereafter doctor State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 21 of 27 handed over the blood sample in sealed condition and he seized the same vide seizure memo Ex.PW17/J and thereafter investigations of this case was handed over to Inspector K P Tomar. The witness has correctly identified both Kamlesh and Anil in the court. He has also identified the seized articles i.e. brick Ex.P1, wooden piece Ex.P2 and danda Ex.P3.
(39) In his cross examination the witness has deposed that he was informed about the DD No. 10B by the Duty Officer. He has further deposed that public persons gathered at the spot had informed him that injured had already been taken to the hospital by CATS ambulance. According to him, though he had inquired from the people about the incident but they were not coming forward to make an statement. The witness has further deposed that he went to the hospital on his own vehicle which is a Santro car bearing No. DL 4C 6909. According to the witness, the secret information was not written down. The witness has deposed that he identified the accused Kamlesh and Anil on the pointing out of secret informer. He hs denied that the arrest memos, personal search memos and disclosure memos of both the accused persons were prepared while sitting in the police station. He has further denied that the above said memos do not bear the signatures of any public person as the same were prepared in the police station. (40) PW21 SI Balkar Singh has deposed that on 14.11.2012 he was posted as Incharge ERV vehicle No. 4204 and at about 12.45AM he State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 22 of 27 received information from Duty Officer regarding a quarrel on the outer Ring Road, Nehru Camp, Haiderpur and that one boy was lying on conscious. According to him when they reach there a large number of public persons present there and they were informed that injured has already been shifted to the hospital in the ambulance and in the meanwhile SI Sanjeev Arora and SHO also reached the spot and he got the spot preserved by positioning their officers there. The witness has deposed that in his presence SHO called the crime team which came and inspected the spot and took photographs of the same. He has deposed that SI Sanjeev thereafter lifted the various exhibits from the spot i.e. blood stained earth, earth control, blood from the roof, broken / half brick piece, a danda and one piece of wood and sealed the same after which the said exhibits were seized.
(41) In his cross examination by Ld. Defence counsel, the witness has admitted that his signatures are not present on any of the documents including seizure memo prepared at the spot. He has deposed that they do not maintain any log book in the ERV vehicle and has voluntarily explained that they received the information on wireless set and transmit the compliance from the wireless set to the control room and to the SHO if he makes any inquiry. According to him he did not give any information to the control room regarding the time when he reached at the spot and proceedings took place and the time when he left the spot and has voluntarily explained that the SHO had reached the spot and it State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 23 of 27 was he who given the information to the control.
(42) PW22 Insp. K.P. Tomar has deposed that on 19.11.2012 the further investigation of this case was handed over to his on which he recorded the statement of SI Sanjeev Arora and collected the PCR form which is Ex.PW22/A and recorded the statement of the caller Islamuddin. He also recorded the statement of Pappu on 20.11.2012 and collected the PM report, inquest documents, photographs, crime team report. He has deposed that during his investigations, exhibits of the case were sent to the FSL Rohini through SI Sanjeev Arora. He recorded the statements of witnesses and after completion of investigations he submitted the charge sheet against accused Kamlesh and Anil. The witness has deposed that he obtained the subsequent opinion of autopsy surgeon and got prepared the scaled site plan through SI Manohar Lal and collected the FSL results and after completion of further investigation he submitted the charge sheet against the accused persons Kamlesh and Anil. In his crossexamination he has denied that he did not conduct the investigations fairly or that accused have been falsely implicated.
STATEMENT OF ACCUSED (43) The star witnesses of the prosecution i.e. Sanjay (PW13), Islamuddin (PW15) and Pappu (PW18) not having supported the case of the prosecution and having turned hostile on the allegations against the State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 24 of 27 accused persons and there being no incriminating evidence against the accused persons either in the form of ocular or circumstantial or medical or forensic, statement of the accused under Section 313 Cr.PC has been dispensed with.
FINDINGS:
(44) At the very Outset I may observe that the entire case of the prosecution is based upon the oral testimony of the alleged eye witnesses Sanjay (PW13), Islamuddin (PW15) and Pappu (PW18) who have turned hostile on the entire incident. They have all denied having witnessed the incident in the night of Diwali on 14.11.2012. They have also claimed that their neighbours Kamlesh and Anil were gaming with playing cards or that at about 12.00 midnight - 12.30 AM after hearing the noises they went to the spot and saw that accused Kamlesh and Anil giving danda blows to Vijay resident of the nearby jhuggi. They have also denied having tried to pacify the quarrel between the said Vijay and accused Kamlesh and Anil and told them not to beat Vijay. They have further denied that the accused Anil picked up a half brick and gave the blow of the said brick on the head of Vijay or that he did not leave Vijay and continued in their beatings or that when Vijay fell down on the ground or that thereafter both accused Kamlesh and Anil ran away from there.
There is no other eye witness to the alleged incident. State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 25 of 27 (45) Secondly the medical evidence including Postmortem Report Ex.PW11/A shows that the cause of death was due to septicemia consequent upon infection, all the injuries were antemortem and about 4 to 5 days old and could be caused by blunt force / surface impact which could have been on account of fall on the ground. Dr. Bhim Singh (PW11) also proved the subsequent opinion (Ex.PW11/B) with regard to the weapon of offence i.e. Danda Ex.P3 and stated that the injuries mentioned in the PM report that Injury No. 1, 2 and 4 could be possible by above examined stick/ danda.
(46) Thirdly the only incriminating evidence against the accused persons is there own disclosure statement which is not leading to any discovery of fact and is thereby hit by the provisions of Section 25 of Evidence Act. The blood stained danda and half brick had already been recovered from the roof of the jhuggi when the police reached there for the first time and the injured had already been removed to the hospital and all this was before the apprehension and arrest of the accused Kamlesh and Anil.
(47) Lastly I may observe that the prosecution has miserably failed to establish and prove the allegations against the accused persons and having failed to bring on record any evidence against them either ocular or circumstantial or medial or forensic or any other evidence to establish their presence at the spot at the time of the incident or to connect them conclusively to the commission of the offence. State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 26 of 27 (48) This being the background and all the material eye witnesses having turned hostile and there being no incriminating material against the accused Kamlesh and Anil Kumar either direct or circumstantial or medial or forensic or otherwise, their statement under Section 313 Cr.PC have been dispensed with and benefit of doubt is being given to the accused Kamlesh and Anil Kumar who are hereby acquitted of the charges under Section 302/34 Indian Penal Code.
(49) Both the accused Kamlesh and Anil are in Judicial Custody. They be released if not required in any other case.
(50) File be consigned to Record Room. Announced in the open Court (Dr. KAMINI LAU) Dated: 30.07.2013 ASJ (NW)II: ROHINI State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 27 of 27 FIR No. 309/2012 PS Shalimar Bagh State Vs. Kamlesh & Anr. 30.7.2013 Present: Addl. PP for the State.
Both accused in JC with Sh. Jitendra Bharti, Advocate. I have gone through the evidence on record. Keeping in view that the star witnesses of the prosecution i.e. Sanjay (PW13), Islamuddin (PW15) and Pappu (PW18) not having supported the case of the prosecution and having turned hostile on the allegations against the accused persons and there being no incriminating evidence against the accused persons either in the form of ocular or circumstantial or medical or forensic, statement of the accused under Section 313 Cr.PC has been dispensed with.
Heard oral arguments. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau)
ASJ/NWII, Rohini/30.7.2013
4:00 PM
Present: Addl. PP for the State.
Both accused in JC with Sh. Jitendra Bharti, Advocate. Vide a detailed judgment (Oral) the accused Kamlesh and Anil Kumar are hereby acquitted of the charges under Section 302/34 Indian Penal Code.
State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 28 of 27
Both the accused Kamlesh and Anil are in Judicial Custody. They be released if not required in any other case.
File be consigned to Record Room.
(Dr. Kamini Lau) ASJ/NWII, Rohini/30.7.2013 State Vs. Kamlesh, FIR No. 309/12, PS Shalimar Bagh Page 29 of 27