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Delhi District Court

State vs . Jitender Kumar on 7 March, 2020

   IN THE COURT OF AJAY GOEL, ADDITIONAL SESSION
            JUDGE/SPECIAL JUDGE (NDPS),
            DWARKA COURTS, NEW DELHI.


Sessions Case No. 440323/16



State              Vs.       JITENDER KUMAR
                             S/o Kailash Pandit
                             R/o Village Tagepur, P.S. Jagdishpur,
                             Distt. Bhagalpur (Bihar).

                             PARMOD YADAV
                             S/o Sh. Mohan Yadav,
                             R/o Vill. Tagepur, P.S. Jagdishpur, Distt.
                             Bhagalpur (Bihar)

FIR No.                  :           717/14
Police Station           :           NAJAFGARH
Under                    :           302/34 IPC
Sections


Date of Institution of case                        : 05.11.2014
Date of Assignment to this court                   : 11.07.2017
at the stage of prosecution evidence
Date of Arguments                                  : 06.03.2020
Date of Decision                                   : 07.03.2020


    SC No. 440323/2016       State Vs. Jitender Kumar & Anr.   Page 1/ 95
 JUDGMENT:

1. As per the case of the prosecution on 13.08.2014 at about 4:40 am, an information was received at Police Control Room on telephone 100 that "DL­4771 taxi gadi me kuch log thai jo ek aadmi ko pit ker bhag gaye hai and the caller was taking the injured to DDU Hospital", the same was forwarded to police net. On receipt of the above information SI Veer Singh reached DDU Hospital, Hari Nagar, New Delhi, where injured Kamlesh was found declared brought dead vide MLC No. 8027. One person namley Gainda Ram met in the hospital and he told that a quarrel had taken place on account of some money and he had brought Kamlesh to the hospital in unconscious condition from B­3, Nang Nagli Vihar, Ranaji Enclave, Najafgarh, New Delhi. SI Veer Singh recorded statement of eye witness/complainant Sh. Manohar Yadav wherein he stated that he was residing at B­3, Nagli Vihar, SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 2/ 95 Ranaji Enclave, Najafgarh, New Delhi with some persons of his village and Kamlesh. He further stated that accused Jitender was running a taxi No. DL1T4771 at Airport and used to visit him and accused Parmod also used to visit and both of them were residing in Palam and on 13.08.2014 accused Jitender had come at about 4 am. He further stated that he had gone to his work and at about 10 am accused Jitender had told him on phone that his cash Rs.3600/­ had been stolen and he called him at the spot. He further stated that accused Jitender had told to Kamlesh that he had stolen his Rs.7,000/­ earlier at Palam Airport and he had returned the same only after beatings and Kamlesh was denying for the same and thereafter accused Jitender had called accused Parmod at the spot and they had given beatings to Kamlesh with dandas and fist and kick blows. On this Kamlesh had admitted the theft and stated that he had given the money to a tea vendor near shamshan ghat Nagli Dairy. He further stated that both the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 3/ 95 accused had taken Kamlesh in the taxi to the said tea vendor along with him and the tea vendor did not accept that he had taken money. He further stated that they returned to the building and both the accused persons had given beatings to Kamlesh until he became unconscious. He further stated that contractor Gainda Ram and Rahul had come and on seeing the condition of Kamlesh Sh. Gainda Ram stated that he was calling police. Accused Parmod and Jitender had run away in the taxi and he had also gone somewhere due to fear and on receiving call from contractor Gainda Ram he returned to the spot. The present case was registered on the basis of the rukka prepared by SI Veer Singh on the statement of Sh. Manohar Yadav. During investigation the scene of spot was inspected and photographed by the Crime Team. Postmortem on the dead body of deceased Kamlesh was conducted at DDU Hospital and after postmortem blood in gauze of deceased Kamlesh was preserved and given to the police. On SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 4/ 95 the night of 13/14.08.2014 accused Jitender and Parmod were apprehended with taxi no. DL1T4771 make Maruti Van black and yellow colour from arrival line, IGI Airport, New Delhi. They were subsequently arrested. The mobile phone of deceased Kamlesh was recovered from the possession of accused Jitender. One blood stained white colour handkerchief was recovered from the pocket of lower of accused Parmod. Both the accused persons were interrogated and in pursuance of their disclosure statements they got recovered four pieces of a wooden phatta from ground floor B­3, Nangli Vihar, Rana Ji Enclave, Main Najafgarh Road, New Delhi stating that they had given beatings to the deceased with the same and the phatta had broken. The taxi no. DL­1T­ 4771 was also seized. A CCTV footage of 13.08.2014 produced by one Sh. Avinash Sharma was seized and the call details record of both the accused persons along with the other relevant documents were collected. The exhibits were sent to FSL. Upon SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 5/ 95 completion of investigation the charge­sheet was filed.

2. After compliance of section 207 Cr.P.C. the case was committed to the court of Sessions being exclusively triable by the court of Sessions.

3. On 15.04.2015, the charge for the offence under Section 302/34 IPC was framed against the accused persons to which they pleaded not guilty and claimed trial. Witnesses examined:

4. In order to prove its case, prosecution examined total 26 witnesses which are as follows:

PW­1 Sh. Pawan Singh, Nodal Officer Idea Cellular Ltd. He deposed that during investigation on the requisition of IO he supplied the certified copies of call details record of mobile Phone No. 9718544196 and 7836896043 of dt. 13.08.2014 along with certified copies of Customer application form of both the mobile numbers which were in the name of Jitender Kumar S/o Kailash SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 6/ 95 Pandit, R/o Gali No. 1, Gopalpur, Delhi­9 and Bhairo Yadav, S/o Butto Yadav, R/o 59, Jagdishpu, Village Tagepur, Aanchal, Jagdishpur, District Bhagalpur, with local address B­15, Rama Park Road, Uttam Nagar, New Delhi respectively. He proved the customer application form of mobile phone No. 9718544196 which was in the name of Jitender Kumar as Ex.PW­1/C and copy of customer ID i.e. driving licence as Ex.PW1/D. He further proved the customer application form of mobile phone no. 7836896043 which was in the name of Bhairo Yadav as Ex.PW1/E and copy of customer ID i.e. election I­card as Ex.PW­1/F. He further deposed that he had also supplied the cell ID chart Ex.PW1/G of Idea Cellular Ltd of Delhi Circle to the IO along with documents He further deposed that he had also given certificate U/S 65 B of Indian Evidence Act Ex.PW1/H to the IO in respect of the aforesaid CDRs.

PW­2 HC Sanjay Kumar. He deposed that on 13.08.2014 on SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 7/ 95 receipt of an information from police control room he recorded DD No. 30 A Ex.PW2/A. He further deposed that on the same day on receipt of an information from duty constable DDU Hospital, he recorded DD No. 31A Ex.PW­2/B. He further deposed that on 13.08.2014 he also recorded FIR No. 717/14 Ex.PW2/C on the basis of rukka brought by Constable Devender sent by SI Veer Singh. He further deposed that he recorded DD entries regarding starting of recording of FIR and its completion vide Ex.PW2/D and Ex.PW2/E. He further deposed that he also made endorsement Ex.PW2/F on the rukka. He proved the certificate U/s 65 B of the Indian Evidence Act as Ex.PW­2/G. PW­3 Sh. Sandeep Singh. He deposed that he is registered owner of Maruti Van Omni No. DL1T4771 since the year 2004 and accused Jitender Kumar was his driver. He further deposed that on 13.08.2014 his van was with the accused. He further deposed that in pursuant of notice of IO U/s 133 MV Act he had given a SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 8/ 95 written reply Ex.PW3/A on 18.08.2014 stating therein that accused Jitender Kumar was driving his aforesaid van. He further deposed that IO seized photocopies of R/C, permit, insurance and traffic police challan of the aforesaid vehicle which was given by him vide Ex.PW3/B. He further deposed that his van Ex.P1 was seized by the police and he got released the same on superdari vide Ex.PW­3/C. PW­4 Sh. Manohar Yadav. He deposed that he had come to Delhi in the search of job in the 2014 and in the month of August he was residing at B­3, Nangli Vihar, Ranaji Enclave, Main Najafgarh Road, Delhi with one Pawan, Manesar, Kumkum, Badri of his village and Kamlesh (since deceased). The said witness was cross examined by Ld. Addl. P.P. for the state as he did not support the case of the prosecution. He admitted the fact that accused Parmod is resident of his village. He further admitted the fact that in the year 2014, accused Jitender was residing in SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 9/ 95 Palam and accused Parmod was residing in Sagarpur. He further admitted the fact that accused Jitender was a driver on a taxi bearing No. DL1T4771. He denied the suggestion that accused Jitender frequently used to come to their room at Ranaji Enclave, Main Najafgarh Road, Delhi. He further denied the suggestion that on 13.08.2014 accused Jitender had come to their room to meet Kumkum at around 4 am. He further denied the suggestion that he along with Manesar, Badri and Kumkum had gone to their work place leaving accused Jitender, Pawan and Kamlesh at their room.

He further denied the suggestion that at about 10 a.m accused Jitender had told him that his cash of Rs.3600/­ had been stolen from his purse or that accused Jitender had called them back and they come back. He further denied the suggestion that accused Jitender had stated to Kamlesh that he had stolen his cash of Rs.7,000/­ earlier at Palam Airport. He further denied the suggestion that accused Jitender was saying to Kamlesh that he SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 10/ 95 was sure that he had stolen his cash and Kamlesh was denying the same. He further denied the suggestion that accused Jitender had called accused Parmod at Nangli Vihar, Ranaji Enclave by making a phone. He further denied the suggestion that accused Parmod come there in his presence. He further denied the suggestion that both the accused were saying to Kamlesh to return Rs. 3600/­ otherwise he will be beaten. He further denied the suggestion that he had seen both the accused persons having dandas in their hands and threatening Kamlesh. He further denied the suggestion that he had seen both the accused persons beating Kamlesh with dandas and by giving him fist and kick blows or that Kamlesh had admitted his guilt of committing theft. He further denied the suggestion that when they intervened, both the accused persons told them to remain away otherwise they would kill them also. He further denied the suggestion that Kamlesh had stated that he had given the stolen amount to a tea vendor outside SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 11/ 95 shamshan ghat, Nangli Dairy. He further denied that both the accused persons had forcibly dragged Kamlesh and had taken him to the aforesaid tea vendor in the taxi of accused Jitender and he along with his other friends also went to the said tea vendor. He further denied the suggestion that tea vendor stated that he had not taken any cash from Kamlesh and on this, both accused persons had brought Kamlesh back. He further denied the suggestion that when they came to B­3, Nangli Vihar, Ranaji Enclave both the accused persons again started giving beatings to Kamlesh and they had beaten him till Kamlesh had lost consciousness. He further denied the suggestion that in the meantime, Rahul, employee of contractor Gainda Ram had also come there and on seeing the condition of Kamlesh, he stated that he was calling police and on hearing this both the accused persons had run away in their taxi and they all had also gone here and there due to fear. He further denied the suggestion that police SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 12/ 95 recorded his statement.

PW­5 Constable Kiran. He deposed that on 13.08.2014 he was posted in Police Control Room and at about 4.40 pm, an information was received on telephone no. 100 from caller Sh. Gainda Ram from mobile number 9899058044 in which he stated that some persons had come in vehicle No. DL4771 and had run away after beating a person at Ranaji Enclave. He further deposed that the information was recorded in the prescribed form of control room and the information was passed to PCR van and concerned police station. He proved the PCR form as Ex.PW5/A. PW­6 Sh. Gainda Ram. He deposed that he is contractor by profession and in the year 2012 or 2013 he had constructed a building of Sh. Rajesh Gupta at B­3, Ranaji Enclave, Najafgarh Road, New Delhi and his labourers namely Kumkum, Manesar, Kamlesh, Manohar and Pawan were staying in the aforesaid building. He further deposed that on 13.08.2014, he along with his SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 13/ 95 employee Sh. Rahul reached at construction site at Old Palam Road, New Delhi at about 10 am and in the meantime he received a call from one lady namely Smt. Shanti and she informed him that the labour persons were quarreling at B­3 Ranajit Enclave, Najafgarh Road,, New Delhi and on this he along with Rahul reached at the spot and found Manohar, Pawan, Manesar, Kamlesh and another person present there. He further deposed that accused Jitender present in court was also present at the spot with his taxi No. DL1T477. He further deposed that accused persons were quarreling and saying that Kamlesh (deceased) had stolen Rs.3600/­ of accused Jitender and he asked them not to quarrel otherwise he would inform the police and thereafter he along with Rahul came to their construction site at old Palam Road, New Delhi. He further deposed that at 1 pm he received call from Smt. Shanti that labour persons were quarreling at B­3, Ranaji Enclave, Najafgarh Road. He further deposed that when SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 14/ 95 he reached the spot, Kamlesh was found lying there having injuries on his lips and face. He further deposed that he informed the police on telephone number 100 and had taken him to DDU Hospital in his Santro Car. In DDU Hospital the doctors declared Kamlesh dead. He further deposed that when he reached at B­3, Ranaji Enclave, Najafgarh Road, New Delhi after receiving information at about 2­2.30 pm Rahul told him that Kamlesh was beaten by accused Jitender and Parmod. He further deposed that on his asking Manohar came at the spot and he also told him that beatings were given to Kamlesh by accused Parmod and Jitender. He further deposed that enquiries were made by the police from him in connection with this case.

PW­7 Dr. B.N Mishra. He further deposed that on 19.08.2014 he conducted postmortem examination on the dead body of deceased Kamlesh Wari Mandal @ Kamlesh vide Ex.PW7/A. He further deposed that the cause of death in this case was due to SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 15/ 95 haemorrhagic shock as a result of lacerations of liver by infliction of blunt forceful impact upon abdomen (liver covering parts) by like punching, kicking etc. and the manner of death was homicide. During his examination on 28.02.2020 PW­7 Dr. B.N. Mishra deposed that on 30.10.2014 he had given subsequent opinion in this case on the request of the IO and as per his opinion the external injury No. 4 (ref external injury page­2) in PM report ExP­ 7/A was sufficient to cause death in ordinary course of nature, which caused laceration of liver and resulted into hemorrhagic shock. He proved his subsequent opinion as Ex.PW­26/H1. PW­8 Dr. Bobo Singh. He further deposed that on 13.08.2014 deceased Kamlesh was brought to casualty DDU hospital by one Sh.Gainda Ram at about 5.30 pm and on examination the deceased was declared brought dead. He proved the MLC as Ex.PW8/A. PW­9 Sh. Rahul. He deposed he is working as Munshi with his SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 16/ 95 uncle namely Sh. Gainda Ram who is contractor by profession. He further deposed that in August 2015, Sh. Kumkum, Sh. Badri, Sh. Manohar, Sh. Kamlesh, Sh. Manesar and Sh. Pawan workers/labourers of Sh. Gainda Ram were staying in the building of Sh. Rajesh Gupta at B­3, Nangli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi. He further deposed that on 13.08.2014, he along with his uncle reached at B­3, Nangli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi at around 11 am and found accused Jitender present there with labourers namely Kamlesh, Manohar, Badri, Kumkum, Manesar and Pawan and hot wording was going on between accused Jitender and Kamlesh on the issue of staling of Rs.3600/­ of accused Jitender by Kamlesh. He further deposed that accused Jitender was working as Taxi Driver and his uncle Sh. Gainda Ram asked them not quarrel otherwise he will call the police. He further deposed that he along with his uncle Gainda Ram came to their site at Old Palam Road SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 17/ 95 and after leaving him at the site his uncle Gainda Ram had gone from there. He further deposed that at about 1/1.30 pm he received a call from Sh. Gainda Ram and he told him that a quarrel was going on B­3, Nangli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi and asked him to go there and look into the matter and on this he went to B­3, Nangli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi at about 1.45 pm. He further deposed that he saw that Kamlesh (deceased) was lying unconscious on the ground floor of the building near a pillar. He further deposed that Manohar, Badri, Pawan and other labourers told him that Kamlesh was mercilessly beaten by accused Jitender and Parmod. He further deposed that he informed his uncle Sh. Gainda Ram on his mobile phone and at that time, Manohar, Pawan and accused Parmod present in court were inside the building where Kamlesh was lying unconscious. He further deposed that he closed the shutter of the building so that accused SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 18/ 95 Parmod and the other persons could not run away from there. He further deposed that accused Jitender was present outside the building with his taxi bearing No. DL1T4771 and he took out the key of the taxi of the accused. He further deposed that accused Jitender asked him to give him the key of the taxi, so that he can take Kamlesh to hospital upon this he gave him the key but instead of taking Kamlesh to hospital, accused Jitender had run away from the spot in his taxi. He further deposed that after some time Sh. Gainda Ram and Sh. Rajesh Gupta owner of the building had also reached at the spot and shutter of the building was opened and when they entered they found only Kamlesh was lying there and rest of the persons including accused Parmod were missing. He further deposed that he along with his uncle Sh. Gainda Ram had taken Kamlesh to DDU Hospital in Santro Car and his uncle informed the police on telephone number 100. He further deposed that attendance card for each labour were maintained SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 19/ 95 individually at their site and he used to mark their attendance on the respective card and after marking the attendance, he used to return the card to the labourers. He proved the attendance card pertained to deceased Kamlesh as Ex.PW6/DA. He further deposed that particulars filled in the card and the marking of attendance up to 11.08.2014 are in his handwriting. He further deposed that police had met him in connection with this case and his statement was recorded.

PW­10 Ct. Naveen. He deposed that on 04.09.2014 he visited the place of occurrence at B­3, Nangli Vihar, Ranaji Enclave, Najafgarh, New Delhi along with Inspector Sanjay Kumar. He further deposed that he had taken the measurements of the spot at the instance of the IO Sanjay Kumar and prepared rough notes. He further deposed on 08.09.2014 he prepared scaled site plan Ex.PW­10/A on the basis of the aforesaid rough notes and after preparing the site plan, the rough notes were destroyed. SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 20/ 95 PW­11 Ct. Pradeep. He deposed that on 30.09.2014 on the instructions of the IO he had taken the exhibits i.e. pulandas pertaining to this case to FSL Rohini vide RC No. 193/21/14 in sealed condition and after depositing the exhibits in the FSL Rohini, he obtained the receipt of FSL and returned to the police station. He further deposed that he handed over the receipt to MHC(M) and till pulandas remained in his custody the same were not tampered with.

PW­12 Sh. Hare Ram Sahu. He deposed that he is running a tea stall near gate of shamshan ghat, Nangli Dairy and two days prior to the independence day in the year 2014 at about 3 pm accused Jitender and Parmod present in court had come to his shop alongwith another person namely Kamlesh in a black and yellow colour taxi and they had asked him to lend them Rs.2,000/­ but he did not give them any money. He further deposed that Kamlesh was having injuries on his face at that time and accused persons SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 21/ 95 and the said Kamlesh had gone from his shop in the same taxi. He further deposed that police had met him in connection with this case and recorded his statement. On a leading question this witness deposed that it may be possible that time was 12­1 pm because at that time he had no watch with him and at that time in the dairy the milk was being taken from the buffaloes. PW­13 Smt. Shanti Devi. She deposed that she is residing near B­3, Ranaji Encalve, Nangli Vihar, New Delhi and Sh. Gainda Ram, contractor had asked her to take care of house No. B­3, Ranaji Enclave, Nangli Vihar, New Delhi. She further deposed that Sh. Rajesh Gupta is the owner of the said building and on 13.08.2014, she had heard some noise at about 1.30 p.m. as some quarrel was going on among the labour of Thekedar Gainda Ram. She further deposed that she was passing through the street and hearing the noise, she called the Thekedar on his phone. She further deposed that the quarrel was going on inside SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 22/ 95 the building and when she was passing through the street Gainda Ram and his munshi Rahul arrived thereafter her call. She further deposed that she had not seen anybody lying there. The said witness was cross examined by Ld. Addl. P.P. for the state as she did not support the prosecution case on certain points and despite that she denied the suggestion that she had seen Kamlesh lying unconscious and in voluntarily she deposed that she had not gone inside the building. She admitted the fact that Rajesh Gupta had come on the spot after her call. She further denied the suggestion that she had seen thekedar and Rahul taking away Kamlesh in their car for medical attention to the hospital. She further denied the suggestion that whether Kamlesh was beaten by some persons, who had come there in a taxi and on account of charge of some theft. She further denied the suggestion that she is deliberately concealing these things in order to save the accused persons. She further denied the suggestion SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 23/ 95 that she had stated all these things to the police, however, in voluntarily she said that the police had recorded her statement near about 1½ months.

PW­14 Sh. Rajesh Gupta. He deposed that he is working as Principal in Convent of Gagan Bhatri Senior Secondary School, Mohan Garden, New Delhi. He further deposed that his mother Smt. Saroj Gupta is the owner of building No. B­3, Nangli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi. He further deposed that Sh. Gainda Ram was a contractor of construction work of their aforesaid building and in the year 2014, Sh. Gainda Ram was working as contractor on their another building at Old Palam Road, Shivani Enclave. He further deposed that in the month of July, 2014, Sh. Gainda Ram had requested him to allow him to keep his labour persons in their building No. B­3, Nangli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi. He further deposed that he allowed him for the same and some labour SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 24/ 95 persons were staying in the aforesaid building since then. He further deposed that on 13.08.2014, Smt. Shanti Devi had informed him about some quarrel among the labour persons in their aforesaid building and he informed accordingly to Sh. Gainda Ram, contractor about the said incident. He further deposed that he reached at the spot at around 4 p.m. and by that time, Sh. Gainda Ram and his munshi namely Rahul had also reached there. He further deposed that when they entered into the premises, he saw that one person whose name later on he came to know as Kamlesh was lying unconscious on the ground floor. He further deposed that Kamlesh was having injuries on his face and he asked Sh. Gainda Ram to inform the police on telephone no.100. He further deposed that Sh. Gainda Ram and Rahul had taken Kamlesh to hospital in their car and later on Sh. Gainda Ram informed him that the doctors had declared Kamlesh as dead. He further deposed that during investigation of the present case, SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 25/ 95 police had made enquiries from Sh. Manohar Lal Yadav and Sh. Manohar Lal had informed that a quarrel had taken place between Jitender, Parmod and deceased Kamlesh on issue of theft of some money. He further deposed that Sh. Manohar Lal had informed the IO in his presence that a quarrel had taken place between accused Jitender and Parmod with deceased Kamlesh on issue of some theft of Rs.3600/­ and the accused persons had given beating to Kamlesh with dandas, fist and kick blows. He further deposed that attendance card, one charger, lungi, gumcha, sleepers, shoes, blanket were seized by the police from the spot in his presence vide seizure memo Ex.PW­14/A and Ex.PW­14/B. He further deposed that on next date he again joined the investigation with IO and during investigation both accused present in court pointed out the place of occurrence vide memo Ex.PW­ 14/C and Ex.PW­14/D. He further deposed that both accused persons got recovered 4 broken pieces of a wooden fatta wichw as SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 26/ 95 seized by the IO vide Ex.PW­14/E. He further deposed that IO prepared a site plan Ex.PW­14/F of the place of recovery of pieces of wooden fatta. He proved the attendance card as Ex.PW­6/DA. He further proved blanket as Ex.P1, lungi as Ex.P2, Gumcha as Ex.P3, one pair of sleeper as Ex.P4, one pair of shoes as Ex.P5 and one mobile broken charger as Ex.P6 and four pices of wooden fatta as Ex.P7.

PW­15 HC Suresh. He deposed that on 13.08.2014 on the requisition of the local police, he alongwith Incharge Mobile Crime Team alongwith ASI Pardeep reached mortuary DDU Hospital, Hari Nagar, New Delhi at about 8 p.m. where he had taken some photographs of the dead body of deceased and thereafter, they reached the spot at B­3, Ranaji Enclave, Nangli Vihar, Najafgarh, New Delhi. He further deposed that he had taken some photographs but he cannot tell the number of the photographs taken at the spot. He further deposed that after developing the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 27/ 95 prints, the photographs were handed over to the IO. He further deposed photographs taken by him on that day at DDU Mortuary and spot were total 13 in number. He proved the photographs as Ex.PW15/A1 to Ex.PW15/A13 and the negatives thereof as Ex.PW15/B1 to Ex.PW15/B13.

PW­16 Sh. Avinash Sharma. He deposed that on 25.08.2014, on the requisition of the IO Insp. Sanjay Kumar, he had given the hard disc and DVR of his CCTV camera containing the recording of dated from 13.08.2014 to 17.08.2014 along with DVD of the CCTV camera installed at his premises B­2 Nangli Vihar Ranaji Enclave, Main Najafgarh Road, New Delhi. He further deposed that the Hard Disc and DVD were seized by the IO vide seizure memos Ex.PW16/A and Ex.PW16/B respectively. He proved his certificate U/S 65B of Indian Evidence Act as Ex.PW16/C. He further proved DVDs as Ex.P8 and Hard disc as Ex.P9. PW­17 Smt Paro Devi. She deposed on 19.08.2014, she SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 28/ 95 identified the dead body of her husband deceased Sh. Kamleshwari Mandal @ Kamlesh in mortuary DDU hospital before the police. She further deposed that after postmortem, the dead body of the deceased was received by her and by her brother Sh. Sunil. She further deposed that her statement in this regard was recorded by the police. She proved the receipt of dead body as ExPW17/A and her statement as Ex.PWW17/B. PW­18 Sh. Sunil Kumar Mandal. He deposed on the same line as deposed by PW­17 Smt. Paro Devi and proved receipt of dead body as ExPW17/A and his statement as Ex.PWW18/A. PW­19 Ct. Vinod Kumar. He deposed that on 15.09.2014 on the instruction of the IO/SHO he had taken three sealed pullandas and two sample seals pertaining to this case to FSL Rohini after receiving the same from MHC(M) vide RC no. 177/21/14. He further deposed that he deposited the pullandas and sample seals SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 29/ 95 in FSL and obtained the receipt of FSL which he had handed over to MHC(M). He further deposed that till the pullandas and sample seals remained in his custody, the same were not tampered with. PW­20 Ct. Surender. He deposed that on 17.09.2014 on the instruction of IO, he had taken a sealed pullanda with the seal of SK to DDU Hospital, Hari Nagar, New Delhi vide RC no. 179/21/14 for obtaining the subsequent opinion. He further deposed that he produced the sealed pullanda before Dr. B.N.Mishra who after giving the subsequent opinion had re­sealed the pullanda with the seal of DFMTDDU and handed over the same to him along with sample seal and opinion and he brought the same to the PS and deposited the pullanda and sample seal in malkhana. He further deposed that till the pullanda remained in his custody, the same was not tampered with.

PW­21 Sh. Ajay Kumar, Nodal Officer, Bharti Airtel. He proved the customer application of mobile phone no. 9958456829 which SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 30/ 95 is in the name of Triveni Yadav S/o Sh. Arjun Yadav R/o C­25, No. 12, East Sagar Pur, Delhi as Ex.PW21/A. He proved the certified copy of customer ID as Ex.PW21/B. He further deposed that during investigation, on the requisition of the police, the certified copy of call details of the aforesaid mobile phone of dt. 13.08.21014, cell ID Chart and certificate U/S 65B of Indian Evidence Act were supplied by Sh. Vishal Gaurav, Nodal officer, who has left the services of the company and he is acquainted with the hand writing and signature of Sh. Vishal Gaurav as he has seen him while writing and signing during the course of their official duties. He further proved certified call details record of phone no. 9958456829 dt. 13.08.2014 as Ex.PW21/C and certified copy of Cell ID Chart as Ex.PW21/D. He further proved the certificate U/S 65B of Indian Evidence Act in respect of computerized call detail of the aforesaid phone issued by Sh. Vishal Gaurav as ExPW21/E. PW­ 22 Ct. Devender Kumar. He deposed that on 13.08.2014 on SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 31/ 95 receipt of DD No. 30A, he along with SI Veer Singh reached DDU Hospital, Hari Nagar, New Delhi and met the doctor. He further deposed that it was reported that deceased Kamlesh was brought in the hospital as brought dead. He further deposed that crime Team was called in the hospital which had taken the photographs of the dead body. He further deposed that one public person namely Genda Ram was also found in the hospital and he stated that he had brought deceased Kamlesh to the hospital in injured condition and Kamlesh was beaten by Parmod and Jitender. He further deposed that thereafter, he along with the IO and Crime Team reached the spot at B­3, Rana Ji Enclave, Najafgarh, New Delhi where Inspector Sanjay along with staff was found present. He further deposed that complainant Sh. Manohar Lal Yadav met them at the spot. He further deposed that SI Veer Singh recorded statement of Sh. Manohar Yadav and prepared a rukka and handed over the rukka to him, which he had taken to the police SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 32/ 95 station for registration of FIR. He further deposed that after recording the FIR the Duty Officer handed over him the rukka along with the copy of FIR and he brought the same to the spot and handed over to Inspector Sanjay Kumar. He further deposed that he joined the investigation of the case with IO Inspector Sanjay Kumar and SI Veer Singh and during investigation the scene of crime was got inspected and photographed by the Crime Team. He further deposed that Inspector Sanjay Kumar seized the Kambal etc. from the spot. He further deposed that on 14.08.2014 in the morning, he along with Inspector Sanjay Kumar and SI Veer Singh went to IGI Airport, New Delhi where accused Parmod and Jitender present in court were apprehended from a Taxi of black and yellow colour bearing no. DL­1T4771. He further deposed that both the accused persons were brought to the Police Station and they were arrested by IO/Inspector Sanjay Kumar in his presence. He proved the arrest memo of accused Jitender SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 33/ 95 Kumar and Parmod as Ex.PW­22/A and Ex.PW­22/C respectively. He further deposed that personal search of accused Jitender Kumar and Parmod was conducted vide memo Ex.PW­22/B and Ex.PW­22/D respectively. He further deposed that both accused were interrogated by IO/Inspector Sanjay Kumar and their disclosure statements were recorded. He further proved the disclosure statement of accused Jitender and Parmod as Ex.PW­ 22/E and Ex.PW­22/F respectively. He further deposed that accused persons led the police party including him, Inspector Sanjay Kumar and SI Veer Singh to B­3 Rana Ji Enclave and pointed out the place of occurrence vide memos Ex.PW­14/C and Ex.PW­14/D. He further deposed that accused persons got recovered pieces of wooden phati from near the spot and Inspector Sanjay Kumar sealed and seized the same vide memo Ex.PW­14/E. He further deposed that thereafter, both accused persons took them to a place towards Nagli Dairy near a Tea stall SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 34/ 95 where Inspector Sanjay Kumar made enquiries from the Tea Vendor and thereafter, they came to the police station along with the accused persons. He further deposed that accused persons were also got medically examined before brining them to the police station. He further deposed that IO/Inspector Sanjay Kumar recorded his statement and statement of SI Veer Singh. He further deposed that accused persons were produced in the court and they were remanded to judicial custody. The said witness was cross examined by Ld. Addl. P.P. for the state as he has resiled on some material aspects from her statement U/s 161 Cr.P.C. On this he admitted the fact that on 14.08.2014, taxi no. DL2T4771 make Maruti Van was seized by the IO vide Ex.PW­ 22/G in his presence at the police station on production by accused Jitender Kumar. He further admitted the fact that on 14.08.2014 accused Jitender had also produced a mobile phone before Inspector Sanjay Kumar in his presence stating that the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 35/ 95 said mobile phone was of Kamlesh and the said mobile phone was seized by the IO vide memo Ex.PW­22/H. He further admitted the fact that on 14.08.2014 a blood stained handkerchief was recovered from the right side pocket of lower of accused Parmod Kumar and the same was sealed and seized by Inspector Sanjay Kumar vide memo Ex.PW­22/H1. He further admitted the fact that due to the lapse of time he could not re­collect about the seizure of aforesaid taxi, mobile phone and handkerchief as the matter is more than 5 years old. He proved the taxi Maruti Van bearing No. DL1T4771 as Ex.P1. He further proved four pieces of wooden phatta as Ex.P7. He further proved the handkerchief as Ex.P8. He further proved a mobile phone of black colour as Ex.P9. PW­23 Dr. C.P. Singh, Assistant Director (Physics) FSL Rohini, Delhi. He deposed that on 30.09.2014 one sealed cloth parcel and FSL Form were received in the FSL and the same were SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 36/ 95 marked to him for examination. He further deposed that the parcel was opened and it was found containing one hard disk of WD make and capacity of 1 TB and on examination of hard disk was Marked Ex.1 and same DVR has not been provided hence the requisite examination could not be carried out in absence of same DVR. He further deposed that the exhibit hard disk Mark­Ex.1 was returned unexamined, however, one clone copy of the hard disk was made on a blank hard disk and same was handed over to the Police. He further deposed that he prepared a report of aforesaid examination as Ex.PW­23/A. PW­ 24 Dr. Sarabjit Singh, Sr. Scientific Officer (Biology) FSL Rohini, Delhi. He deposed that on 15.09.2014 three sealed parcels and forwarding letter were received in the FSL and the same were marked to him for examination. He further deposed that the parcels were opened and the contents were examined by SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 37/ 95 him and he prepared a detailed report of examination vide Ex.PW­ 24/A and its annexure ALLELIC Data as Ex.PW­24/B. He further deposed that the alleles from the source of exhibit '3' (Blood stained gauze cloth piece of deceased, Kamlesh) are found similar in the alleles from the source of exhibits '1' (Handkerchief of accused, Parmod), '2a' (Shirt), '2b' (Capri) and '2c' (Underwear). He further deposed that the remnants of the exhibits have been sealed with the seal of "Dr.SS FSL DELHI".

PW­25 SI Veer Singh. He deposed that on 13.08.2014 on receipt of DD No. 30 A Ex.PW­2/A at about 4.40 pm, he along with Ct. Devender reached DDU Hospital, Hari Nagar, New Delhi at about 5 pm. He further deposed that he collected the MLC No. 8027 of injured Kamlesh on which injured was found declared brought dead. He further deposed that one person namely Genda Ram also met in the hospital and he told that a quarrel had taken place on account of some money and he had brought Kamlesh to the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 38/ 95 Hospital in unconscious condition from B­3, Nagli Vihar, Ranaji Enclave, the place of incident. He further deposed that he inspected the dead body of deceased Kamlesh in the mortuary. He further deposed that Crime Team was called in the Hospital and ASI Pradeep Kumar In­charge Crime Team and Ct. Satish Kumar, Photographer reached in the mortuary, DDU Hospital and inspected and photographed the dead body of the deceased from 08.15 pm to 08.45 pm. He further deposed that thereafter, he along with Crime Team and Ct. Devender came to the spot at Ground floor B­3, Nagli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi where SHO Inspector Atul Verma and Inspector Sanjay Kundu were found present. He further deposed that the Crime Team had inspected the spot and had taken photographs from 9.15 pm to 9.45 pm. He further deposed that complainant/eye witness Sh. Manohar Yadav was found present at the spot and he recorded his statement and prepared rukka SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 39/ 95 Ex.PW­25/A and sent Ct. Devender with rukka to the police station for registration of FIR. He further deposed that the investigation was assigned to Inspector Sanjay Kundu after registration of the FIR and Ct. Devender returned to the spot with copy of FIR and rukka and handed over the same to Inspector Sanjay Kundu. He further deposed that during investigation in the intervening night of 13/14.08.2014 Inspector Sanjay Kundu made enquiries at the spot and prepared site plan at the instance of complainant Manohar Yadav. He further deposed that one identity card/attendance card Ex.PW­6/DA having name of Kamlesh and date 01.08.2014 to 31.08.2014 mentioned thereon was found lying on the ground floor at the spot and the same was seized by Inspector Sanjay Kundu vide seizure memo Ex.PW­14/B. He further deposed that the owner of the building namely Sh. Rajesh Gupta was also present at the spot at that time. He further deposed that one blanket (Kambel) having design of pink, dark SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 40/ 95 brown grey colour, one blue colour lungi, one checkdar gamcha of pink and green colour, one pair of 9 no. sleeper of SONIC, one pair of shoe of 8 no. and one broken mobile charger of black colour were also found lying at the spot on ground floor. He further deposed that all the aforesaid articles were lifted by Inspector Sanjay Kundu and the same were kept in a plastic katta which was sealed and seized vide memo Ex.PW­14/A. He further deposed that thereafter, statements of members of the Crime Team, Contractor ­Genda Ram, Munshi Rahul and owner of the building Sh. Rajesh Gupta were recorded by Inspector Sanjay Kumar. He further deposed that thereafter, he along with IO Inspector Sanjay Kundu, Ct. Devender and other staff reached at arrival line of IGI Airport, New Delhi in Emergency Rotating vehicle and one taxi No. DL1T4771 make Maruti Van of black and yellow colour was found in the line. He further deposed that accused Jitender present in court was found on the driver seat of the said taxi and accused SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 41/ 95 Parmod present in court was found seating on the front seat on the other side. He further deposed that both the accused persons were apprehended at about 3.30 am (14.08.2014). He further deposed that both the accused persons and the aforesaid taxi were brought to the police station and accused Jitender Kumar was arrested by IO Inspector Sanjay Kundu at about 5.45 am vide arrest memo Ex.PW­22/A and his personal search was conducted vide memo Ex.PW­22/B. He further deposed that accused Jitender took out a mobile phone make I­Cell of black colour without SIM from the pocket of his pant and disclosed that the said mobile phone was of deceased Kamlesh. He further deposed that the said mobile phone was seized vide seizure memo Ex.PW­22/H and accused Jitender was interrogated and his disclosure statement Ex.PW­22/E was recorded wherein he disclosed that he can get recovered the weapon of offence i.e. phatta. He further deposed that thereafter, accused Parmod Yadav was arrested by SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 42/ 95 the IO at about 5.55 am vide arrest memo Ex.PW­22/C and his personal search was conducted vide memo Ex.PW­22/D. He further deposed that one blood stained white colour handkerchief having boarder of brown colour was recovered from the right side pocket of lower of accused Parmod and the same was sealed and seized by the IO vide seizure memo Ex.PW­22/H1. He further deposed that it was disclosed by the accused that while giving beatings to the deceased blood started oozing and the deceased had used the said handkerchief for cleaning blood and he had brought the same. He further deposed that accused Parmod Yadav was interrogated and his disclosure statement Ex.PW­22/F was recorded by the IO. He further deposed that thereafter, he along with IO, Ct. Devender and both the accused persons reached the spot at ground floor B­3, Nagli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi. He further deposed that both the accused persons got recovered four pieces of a wooden phatta SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 43/ 95 stating that they had given beatings to the deceased with the same and the phatta had broken in four pieces. He further deposed that Inspector Sanjay Kundu had checked the length of all the four pieces of phatta together and it was found 4 ft and 6 inches. He further deposed that thereafter, all the pieces were sealed & seized by the IO vide memo Ex.PW­14/E. He further deposed that a site plan of the place of recovery of the aforesaid pieces of phatta was prepared by the IO and at that time Sh. Rajesh Gupta, owner of the building was also present and he was joined in the proceedings. He further deposed that the accused persons had pointed out the place of occurrence vide memo Ex.PW­14/C (at the instance of accused Parmod) and memo Ex.PW­14/D (at the instance of accused Jitender Kumar). He further deposed that statement of tea vendor namely Sh. Hari Ram was recorded by the IO. He further deposed that both the accused persons were got medically examined and the case property was deposited in the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 44/ 95 Malkhana. He further deposed that the accused persons were produced in the court and they were sent to JC. He further deposed that his statement was recorded by the IO. He further deposed that on 18.08.2014, Sh. Sandeep Singh owner of taxi No. DL­1T­4771 had joined the investigation and he produced copies of the documents related to the taxi and the same were seized by the IO in his presence vide seizure memo Ex.PW­3/B. He further deposed that he had returned the seal to Inspector Sanjay Kundu on 18.08.2014. He proved the case property i.e. blanket as Ex.P1, lungi as Ex.P2, Gamcha as Ex.P3, One pair of sleeper as Ex.P4, one pair of shoe as Ex.P5, broken mobile charger as Ex.P6, four wooden pieces of a phatta as Ex.P7 (collectively), handkerchief as Ex.P8, mobile phone make I­Cell of black colour as Ex.P9, taxi Maruti Van bearing No. DL­1T­4771 as Ex.P1 and its photographs as Ex.P10 (collectively).

SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 45/ 95 PW­ 26 Inspector Sanjay Kundu. He deposed that on 13.08.2014 on receipt of DD No. 31 A Ex.PW­26/A from DDU Hospital regarding the death of the deceased Kamlesh, he along with SHO reached the spot at B­3, Nangli Vihar, Ranaji Enclave, Najafgarh Road, Delhi at about 6.30 pm and in the meantime SI Veer Singh along with Crime Team and Ct. Devender had also reached the spot. He further deposed that the Crime Team had inspected the spot and had taken photographs from 9.15 pm to 9.45 pm. He further deposed that complainant/eye witness Sh. Manohar Yadav also come to the spot and SI Veer Singh recorded his statement and prepared rukka and sent Ct. Devender with rukka to the police station at about 10.20 pm. He further deposed that after registration of the case, the investigation was assigned to him. He further deposed that Ct. Devender returned to the spot with copy of FIR and rukka at about 11 pm and handed over the same to him. He further deposed that during investigation in the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 46/ 95 intervening night of 13/14.08.2014 he made enquiries at the spot and prepared site plan Ex.PW­26/B at the instance of complainant Manohar Yadav. He further deposed that he recorded statements of members of the Crime Team, Contractor ­Genda Ram, Munshi Rahul and supplementary statement of Manohar Yadav. He further deposed that ASI Pradeep Kumar Incharge Mobile Crime Team had given the inspection report Ex.PW­26/A1. He further deposed that one identity card/attendance card Ex.PW­6/DA having name of Kamlesh and date 01.08.2014 to 31.08.2014 mentioned thereon was found lying on the ground floor at the spot and the same was seized by him vide seizure memo Ex.PW­14/B. He further deposed that the owner of the building namely Sh. Rajesh Gupta was also present at the spot at that time. He further deposed that one blanket (Kambel) having design of pink, dark brown grey colour, one blue colour lungi, one checkdar gamcha of pink and green colour, one pair of 9 no. sleeper of SONIC, one SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 47/ 95 pair of shoe of 8 no. and one broken mobile charger of black colour were also found lying at the spot on ground floor and all the aforesaid articles were lifted by him and the same were kept in a plastic katta which was sealed and seized vide seizure memo Ex.PW­14/A. He further deposed that thereafter, statement of Sh. Rajesh Gupta was recorded by him. He further deposed that thereafter, he along with SI Veer Singh, Ct. Devender and other staff reached at arrival line of IGI Airport, New Delhi in Emergency Rotating vehicle and one taxi No. DL1T4771 make Maruti Van of black and yellow colour was found in the line. He further deposed that accused Jitender present in court was found on the driver seat of the said taxi and accused Parmod present in court was found seating on the front seat on the other side. He further deposed that both the accused persons were apprehended at about 3.30 am (14.08.2014). He further deposed that both the accused persons and the aforesaid taxi were brought to the police station. SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 48/ 95 He further deposed that accused Jitender Kumar was arrested by him at about 5.45 am vide arrest memo Ex.PW­22/A and his personal search was conducted vide memo Ex.PW­22/B. He further deposed that one mobile phone make Nokia of accused Jitender was recovered in his personal search and said mobile phone was bearing no. 9718544196. He further deposed that accused Jitender took out a mobile phone make I­Cell of black colour without SIM from the pocket of his pant and disclosed that the said mobile phone was of deceased Kamlesh and said mobile phone was seized vide seizure memo Ex.PW­22/H. He further deposed that accused Jitender was interrogated and his disclosure statement Ex.PW­22/E was recorded wherein he disclosed that he can get recovered the weapon of offence i.e. phatta. He further deposed that thereafter, accused Parmod Yadav was arrested by him at about 5.55 am vide arrest memo Ex.PW­22/C and his personal search was conducted vide memo Ex.PW­22/D. He SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 49/ 95 further deposed that in his personal search a mobile phone belonging to accused Parmod was also recovered. He further deposed that one blood stained white colour handkerchief having boarder of brown colour was recovered from the right side pocket of lower of accused Parmod and same was sealed and seized by him vide seizure memo Ex.PW­22/H1. He further deposed that it was disclosed by the accused Parmod that while giving beatings to the deceased blood started oozing from the body of the deceased and the blood of the deceased had fallen on his hand and the said handkerchief was used by the accused Parmod for cleaning blood and he had brought the same. He further deposed that accused Parmod Yadav was interrogated and his disclosure statement Ex.PW­22/F was recorded by him. He further deposed that he seized the taxi referred above vide seizure memo Ex.PW­22/G at the police station. He further deposed that thereafter, he along with SI Veer Singh, Ct. Devender and both the accused persons SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 50/ 95 reached the spot at ground floor B­3, Nagli Vihar, Ranaji Enclave, Main Najafgarh Road, New Delhi. Sh. Rajesh Gupta owner of the building was found present and he was joined in the investigation. He further deposed that both the accused persons pointed out the place of occurrence vide memos Ex.PW­14/C (at the instance of accused Parmod) and Ex.PW­14/D (at the instance of accused Jitender Kumar). He further deposed that thereafter, both the accused persons got recovered four pieces of a wooden phatta stating that they had given beatings to the deceased with the same and the phatta had broken in four pieces. He further deposed that he had checked the length of all the four pieces of phatta together and it was found 4 ft and 6 inches and thereafter, all the pieces were sealed and seized by him vide seizure memo Ex.PW­14/E . He further deposed that site plan of the place of recovery of the aforesaid pieces of phatta was prepared by him vide memo Ex.PW­14/F. He further deposed that supplementary statement of SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 51/ 95 Sh. Rajesh Gupta was recorded and thereafter, both the accused persons were taken to a tea vendor near Shamshan Ghat, Nangli Sakrawati and they were identified by the tea vendor namely Sh. Hari Ram. He further deposed that he recorded his statement and both the accused persons were got medically examined and the case property was deposited in the Malkhana. He further deposed that the accused persons were produced in the court and they were sent to JC. He further deposed that on 18.08.2014, Sh. Sandeep Singh owner of taxi No. DL1T4771 had joined the investigation and he produced copies of the documents related to the taxi and the same were seized by him vide seizure memo Ex.PW­3/B. He further deposed that the said documents were produced by him in pursuance of notice U/s 133 MV Act. He further deposed that on 19.08.2014, he filled Form 25/35 Ex.PW­ 26/C. He further deposed that the dead body of the deceased was identified by his wife Smt. Paro Devi and Sh. Sunil Kumar Mandal SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 52/ 95 brother­in­law and he recorded their statements. He further deposed that he prepared brief facts of the case vide memo Ex.PW­26/D and he made request to the doctor for postmortem vide Ex.PW­26/E and after postmortem the doctor handed over him blood in guaze and clothes of the deceased and sealed pullandas along with sample seals. He further deposed that he seized the blood in gauze and sample seal vide seizure memo Ex.PW­26/F and seized the pullandas of the clothes and sample seals vide seizure memo Ex.PW­26/G. He further deposed that the dead body of deceased was handed over to wife of deceased vide receipt Ex.PW­17/A. He further deposed that on 25.08.2014, he collected hard disc and DVD from Sh. Avinash Sharma containing the CCTV footage of 13.08.2014 and he sealed seized the hard disc vide seizure memo Ex.PW­16/A. He further deposed that he seized the DVD vide seizure memo Ex.PW­16/B and he obtained a certificate U/s 65 B of the Indian Evidence Act from Sh. Avinash SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 53/ 95 Sharma vide Ex.PW­16/C. He further deposed that on 04.09.2014, he visited the spot with Sh. Naveen, Assistant Draughtsman and he had taken measurement of the spot at his instance and after preparing the scaled site plan the same was given to him. He further deposed that during investigation he collected the PCR Form, call details record of both the accused and complainant along with other relevant documents including CAF and Cell ID chart. He further deposed that during investigation he also obtained subsequent opinion of the doctor regarding the weapon of offence. He further deposed that he also obtained another subsequent opinion of the doctor whether there was any such injury which was sufficient to cause death in ordinary courses of nature, which was given by Dr. B.N. Mishra on his application dt. 28.10.2014 Ex.PW­26/H and the opinion of the doctor was Ex.PW­26/H1. He further deposed that the exhibits were sent to FSL and the reports of FSL were collected. He SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 54/ 95 further deposed that during the course of investigation he recorded the statements of witnesses at the relevant times and the case property was also deposited on the relevant dates in the Malkhana of PS and collected the photographs from the Crime Team. He further deposed that on completion of investigation charge­sheet was filed. He proved the case property i.e. blanket as Ex.P1, lungi as Ex.P2, Gamcha as Ex.P3, One pair of sleeper as Ex.P4, one pair of shoe as Ex.P5, broken mobile charger as Ex.P6, four wooden pieces of a phatta as Ex.P7 (collectively), handkerchief as Ex.P8, mobile phone make I­Cell of black colour as Ex.P9, taxi Maruti Van bearing No. DL1T4771 as Ex.P1 and its photographs as Ex.P10 (collectively).

5. Vide order dated 28.02.2020, prosecution evidence was closed on the submissions of Ld. Addl. PP as all the cited witnesses were examined.

Statement U/s 313 Cr.P.C.

SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 55/ 95

6. When examined U/s 313 Cr.P.C., the accused persons sheltered themselves under the usual plea of false implication by the police.

7. No evidence in defence was led by the accused in support of his case.

8. I have heard the Addl. PP for the State, Sh. Umesh Chauhan, Counsel for the accused Jitender and Sh. Ajay Kumar, Counsel for accused Parmod. The material on record has been perused.

ARGUMENTS OF PROSECUTION:

9. Ld. Addl. PP for the state argued that on the fateful day accused persons gave mercilessly beatings to deceased Kamlesh due to which he received serious injuries and succumbed to injuries. It is further submitted that though the complainant Sh. Manohar Yadav has not supported the case of SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 56/ 95 the prosecution but in his testimony it has come on record that accused Jitender was a driver on some taxi and he had identified both the accused persons in the court. It is further submitted that PW­3 Sh. Sandeep Singh has proved his reply of the notice U/s 133 MV Act and has categorically deposed that on 13.08.2014 his taxi was with the accused. It is further submitted that PW­6 Sh.Gainda Ram, PW­9 Sh. Rahul and PW­12 Sh. Hare Ram Sahu are the material witnesses in this case. It is further submitted that PW­6 Sh. Gainda Ram has deposed that on 13.08.2014 both the accused persons were present at the spot and they were quarreling with the deceased Kamlesh on account of Rs.3600/­ and he had asked them not to quarrel. It is further submitted that PW­6 Sh. Gainda Ram has testified that Sh. Manohar and Rahul had told him that beatings were given to Kamlesh by accused Parmod and Jitender. It is further submitted that PW­9 Sh. Rahul has also deposed about the quarrel by both the accused persons SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 57/ 95 with Kamlesh on issue of stealing of Rs.3600/­. It is further submitted that PW­9 Sh. Rahul has categorically deposed that he had taken out the key of taxi of accused Jitender and returned the same on asking of accused Jitender on the pretext of taking Kamlesh to hospital but instead of taking Kamlesh to Hospital accused Jitender had run away. It is further submitted that this witness has also deposed about the presence of accused Parmod inside the building where Kamlesh was lying unconscious. It is further submitted that PW­12 Sh. Hare Ram Sahu has testified that two days prior to the independence day in the year 2014 at about 3 pm accused Jitender and Parmod had come to his shop along with Kamlesh in a black and yellow colour taxi and at that time Kamlesh was having injuries on his face. It is further submitted that PW­12 Sh. Hare Ram Sahu has further testified that the accused persons and Kamlesh had gone from his shop in the same taxi. It is further submitted that in the call details of the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 58/ 95 accused persons their presence at the spot has come. It is further submitted that in the CCTV footage both the accused persons and the movement of taxi of accused Jitender near the spot is clearly visible. It is further submitted that the mobile phone of the deceased was recovered from the possession of accused Jitender and a blood stained handkerchief was recovered from the possession of accused Parmod. It is further submitted that as per the FSL report the blood on the handkerchief matched with the blood of deceased. It is further submitted that sufficient evidence has come on record to connect the accused persons with the murder of deceased Kamlesh. It is further submitted that the weapon of offence i.e. wooden phatta was recovered at the instance of the accused persons in the presence of Sh. Rajesh Gupta owner of the building. It is further submitted that as per subsequent opinion the injuries could have been inflicted on the body of the deceased with the weapon of offence. It is further SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 59/ 95 submitted that doctor had opined that the external injury No. 4 was sufficient to cause death in ordinary course of nature, which caused laceration of liver and resulted into hemorrhagic shock. It is further submitted that the prosecution has been successful in proving its case against both the accused persons beyond all reasonable doubts and as such they are liable to be convicted. ARGUMENTS OF DEFENCE:

10. On the other hand, the counsel for the accused persons argued that the star witness of the prosecution who is complainant PW­4 Sh. Manohar Yadav has not supported the case of the prosecution. It is further submitted that the other public witnesses examined by the prosecution had not witnessed the incident and the alleged recoveries have been planted in order to make out a case against the accused persons. It is further submitted that PW­ 4 Sh. Manohar Yadav has completely demolished the case of the prosecution. It is further submitted that no pieces of wooden SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 60/ 95 phatta was recovered at the instance of the accused persons. It is further submitted that no blood stained handkerchief was recovered from accused Parmod and no mobile phone of the deceased was recovered from accused Jitender. It is further submitted that prosecution has not placed on record any document to show that the alleged mobile phone was belonging to deceased. It is further submitted that CCTV footage relied on by the prosecution does not pertain to the place of incident. It is further submitted that the accused persons are not seen in the CCTV footage giving beatings to the deceased. It is further submitted that the presence of the accused persons at the spot has not been established beyond reasonable doubt. It is further submitted that for the sake of arguments if it is presumed for a while that some beatings were given by anyone to the deceased even then the case does not attract Section 302 IPC and instead it is a case of 304 IPC only because the fight was on the issue of SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 61/ 95 stealing money by the deceased. It is further submitted that from the PM report and subsequent opinion it is not made out that the injuries were sufficient to cause death in ordinary course of nature.

It is further submitted that accused persons are liable to be acquitted.

JUDGMENTS RELIED UPON ON BEHALF OF STATE.

(I)     Akhlak Vs. State, 2009 (2) AD (Delhi) 291.

(ii)    In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990

SC 79

(iii) 'Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622[(1984) 4 SCC 116.

(iv) Paramjeet Singh @ Pamma Vs. State of Uttrakhand (2010) 10 SCC 439.

(v) 'Dev Raj Vs. State of Chhatishgarh 2016 (7) SCALE 369

(vi) Raja @ Rajinder vs State of Haryana in Crl. Appeal No. 486 of 2010 dt. 10.04.2015 by Hon'ble SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 62/ 95 Supreme Court.

FINDINGS

11. PW­3 Sh. Sandeep Singh, PW­4 Sh. Manohar Yadav, PW­6 Sh. Gainda Ram, PW­ 9 Sh. Rahul and PW­12 Sh. Hare Ram Sahu, PW­13 Smt. Sunita Devi, PW­14 Sh. Rajesh Gupta, PW­16 Sh. Avinash Sharma, PW­17 Smt. Paro Devi and PW­18 Sh. Sunil Kumar Mandal are the public witnesses. As per the case of the prosecution PW­4 Sh. Manohar Yadav had witnessed the entire incident but during his testimony in the court he did not support the case of the prosecution and had taken a 'U' turn from his version given to the police by him. In his testimony he identified both the accused persons and during his cross examination conducted by Ld. Addl. PP he admitted that both the accused persons are resident of his village and they were residing in Sagarpur. He also admitted that accused Jitender SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 63/ 95 was a driver on a taxi Maruti Van Omni at airport. PW­3 Sh. Sandeep Singh is the owner of taxi no. DL1T4771 and he testified that accused Jitender was driver on his Maruti Van and on 13.08.2014 the Maruti Van was with accused Jitender. He proved his reply to the notice U/s 133 MV Act. So from the testimonies of PW­3 Sh. Sandeep Singh and PW­4 Sh. Manohar Yadav, it has been established that accused Jitender Yadav was driver on taxi Maruti Van No. DL­1T­4771 and on 13.08.2014 the said taxi was with him. In CCTV footage the same is being corroborated and accused Jitender is being seen with the vehicle and the vehicle has taken inside the building and brought outside the building. Accused Jitender is seen roaming around the vehicle and in the area and taking away the vehicle lastly. PW­3 Sh. Sandeep Singh as stated above has proved that the vehicle was with the accused Jitender on the relevant date and time. SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 64/ 95 PW­6 Sh. Gainda Ram testified that he is a contractor and his labourers including Kamlesh (deceased) were staying in a building at B­3, Ranaji Enclave, Najafgarh, New Delhi. He further testified that on 13.08.2014 on receiving information from one lady Smt. Shanti, he came to the spot and found that accused Jitender was present there with his taxi no. DL­ 1T­4771 and another person apart from Manohar, Pawan, Maneshar and Kamlesh was also present there and accused Jitender and the another person were quarreling with Kamlesh and saying that Kamlesh had stolen Rs.3600/­ of accused Jitender and he asked them not to quarrel and thereafter he went to construction site at Old Palam Road, New Delhi and after receipt of another call from Smt. Shanti regarding quarrel he sent Rahul there and at about 2­2.30 pm as he was directed by Sh. Rajesh Gupta to reach the spot. He further testified that when he reached the spot SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 65/ 95 Kamlesh was found lying there having injuries and he informed the police on telephone number 100 and had taken him to DDU Hospital where Kamlesh was declared dead. He further testified that Rahul had told him that Kamlesh was beaten by accused Jitender and Parmod. He further testified that Manohar had also told him about the beatings given to Kamlesh by accused Jitender and Parmod. This witness correctly identified both the accused persons during his examination. In his testimony PW­9 Sh. Rahul testified that on 13.08.2014 he along with his uncle Sh. Gainda Ram reached at B­3, Nangli Vihar, Ranaji Enclave, Main Road, Najafgarh, New Delhi at about 11 am and when they reached there hot wording was going on between Jitender and Kamlesh on the issue of stealing of Rs.3600/­ of accused Jitender by Kamlesh. He further testified that Sh. Gainda Ram asked them not to quarrel. The testimony of PW­6 Sh. SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 66/ 95

Gainda Ram regarding the factum of quarrel between accused Jitender and Kamlesh on the issue of stealing Rs.3600/­ finds corroboration in the testimony of PW­9 Sh. Rahul.

12. PW­9 Sh. Rahul further testified that on 13.08.2014 on asking of Sh. Gainda Ram, he went to the spot at about 1.45 pm and saw that Kamlesh was lying unconscious on the ground floor and he met with other labourers told him that Kamlesh was mercilessly beaten by accused Jitender and Parmod. In his testimony he further deposed that at that time Manohar, Pawan and accused Parmod were present and he closed the shutter of the building so as to accused Parmod and other persons could not run away. He further testified that accused Jitender was present outside the building with his taxi no. DL1T­4771 and he had taken out the key of the taxi. The relevant portion of his testimony in this regard is reproduced as under :­ SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 67/ 95 "Accused Jitender was present outside the building with his Taxi bearing No. DL 1T 4771. I took out the key of the taxi of the accused. Accused Jitender asked me to give him the key of the car/taxi, so that he can take Kamlesh to hospital. I gave him the key but instead of taking Kamlesh to hospital, accused Jitender had run away from the spot in his car/taxi. After sometime, Sh. Gainda Ram and Sh. Rajesh Gupta (owner of the building) had also reached at the spot. The shutter of the building was opened and when we entered the building only Kamlesh was found lying there and rest of the persons including accused Parmod were found missing. I alongwith my uncle Sh. Gainda Ram had taken Kamlesh to DDU Hospital in Santro Car. My uncle informed the police on telephone number 100.

SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 68/ 95

The attendance card for each labour were maintained individually at out site. I used to mark their attendance on the respective card and after marking the attendance, I used to return the card to the labourers. The attendance card already Ex.PW­6/DA pertains to Kamlesh (deceased). The particulars filled in the card and the marking of attendance up to 11.08.2014 are in my handwriting. Police had met me in connection with this case and my statement was recorded".

13. So from the testimonies of PW ­6 Sh. Gainda Ram and PW­9 Sh. Rahul it has come on record that both the accused persons were present at B­3, Nagli Vihar, Rana Ji Enclave, Main Najafgarh Road, New Delhi on 13.08.2014 and they had quarreled with deceased Kamlesh firstly in the morning at around 10/11 am and another incident of giving beatings to deceased by the accused persons had happened in the day time in the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 69/ 95 afternoon. In his testimony, PW­12 Hare Ram Sahu testified that two days prior to the Independence Day in the year 2014 accused Jitender and Parmod had come to his shop along with Kamlesh in a black and yellow colour taxi at about 3 pm and at that time Kamlesh was having injuries on his face and they asked him to lend them Rs.2,000/­ but he did not give and the accused persons and Kamlesh had gone from his shop in the same taxi. From the testimony of this witness it has been established that deceased was in the company of both the accused persons and the accused persons were having a taxi of black and yellow colour on that day. On a leading question by Ld. APP this witness deposed that it might be possible that time was 12 ­1:00 pm because at that time he has no watch with him. It is evident from the testimonies of PW­6 Sh. Gainda Ram, PW­9 Sh. Rahul and PW­ 12 Sh. Hare Ram Sahu that the deceased was with both the accused persons on 13.08.2014 since morning and till the time he SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 70/ 95 was found lying unconscious at the spot. In her testimony PW­13 Smt. Shanti Devi has testified that on 13.08.2014 she has heard some noise at about 1.30 pm going on among the labour of thekdar Gainda Ram and she informed thekedar. She further testified that the quarrel was going on inside the building. From her testimony it is clear that the incident had happened around 1.30 pm. So even if PW­13 Smt. Shanti Devi had not supported the prosecution still she has proved regarding the quarrel and that part of her evidence is very crucial to show that some scuffle took place between accused persons and deceased.

14. In the circumstances where PW­4 Sh. Manohar Yadav has not supported the case of the prosecution, the case of the prosecution rests on the circumstantial evidence. Experience shows that very rarely are the crime committed in full public view at public places. Often the crimes including murder are accomplished secretly far from public gaze so as to avoid there SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 71/ 95 detection. In such cases, the culprits are tracked either on the basis of last seen together or other circumstances appearing on the scene including motive of crime from which their guilt is inferred. Such type of evidence is called circumstantial evidence. In cases based upon circumstantial evidence, burden upon the prosecution is heaveir to prove each and every circumstance leading to the death of deceased, beyond any reasonable doubt. Before adverting to the facts of the case, I would like to discuss the law with respect to circumstantial evidence when direct evidence is not available.

15. It is settled principle of law that such evidence must satisfy the following tests:

(i) the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established.

(ii) Those circumstances should be of such tendency which point towards guilt of the accused.

SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 72/ 95

(iii) The circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that with all human probability the crime was committed by the accused and none else and

(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanations of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with the innocence.

16. In Padala Veera Reddy v. State of A.P. and Ors. AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests :

"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 73/ 95 (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.

17. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 [(1984) 4 SCC 116], it was held that:­ ''the onus was on the prosecution to prove that the chain is complete and falsity or untenability of the defence set up by the accused cannot be made basis for ignoring serious infirmity or lacuna in the prosecution case. The Court then proceeded to indicate the conditions which must be fully established before conviction can be based on circumstantial evidence. These are: SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 74/ 95

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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 a 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."

In the judgment Raja @ Rajinder vs State of Haryana (based on circumstantial evidence) para No. 9 mentioned as Under:­ SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 75/ 95 "9. From the aforesaid, it is clear as day that the Court is required to evaluate the circumstantial evidence to see that the chain of events have been established to see that the chain of events have been established clearly and completely to rule out any reasonable likelihood of the innocence of the accused. Needless to say whether the chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted.

10. In the instance case, the circumstances that have been established by the prosecution are that the deceased had accompanied the accused-appellant, being called by him, from his house in the early SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 76/ 95 part of the evening on the date of occurrence. The mother of the deceased, Kalawati, PW11, has deposed in that regard.

Thereafter, from the material brought on record, it is clearly revealed that the appellant was seen at the tea stall with the deceased. The said fact has been deposed by Mahender, PW10. Thus, from the aforesaid evidence, two facts are established, namely, the accused and the deceased had left the house of the deceased and were seen taking tea together at the tea stall. It is submitted by the learned counsel for the appellant that the last seen theory as advance by the prosecution is not acceptable in as much as the owner of the tea stall has not been examined. When the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 77/ 95 testimony of the aforesaid two witnesses deserve acceptance and receive corroboration from the other evidence on the record, no adverse inference should be drawn because of non-examination of the tea stall owner, who, as has been submitted by the learned counsel for the appellant, is a material witness. It is well settled in law that non-examination of a material witness is not a mathematical formula for discarding the weight of the testimony available on record, if the same is natural, trustworthy and convincing. That apart, he was not such a witness who alone was the competent witness to depose about a fact and his non-

examination would really destroy the version of the prosecution.

SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 78/ 95

12. Another circumstance that has been proven is about the recovery of knife, blood-stained clothes and the ashes of the burnt blanket. The seizure witnesses Sukha, PW7 and Nanak, PW9 have proven the seizure. It is submitted by the learned counsel for the appellant that police had recorded the confessional statement of the accused-appellant at the police custody and thereafter, as alleged, had recovered certain things which really do not render any assistance to the prosecution, for the confession recorded before the police officer is inadmissible.

That apart, the accused had advanced the plea that the articles and the weapon were planted by the investigating agency.

SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 79/ 95 To appreciate the said submission in proper perspective, we may profitably reproduce a passage from State of UP vs. Deoman Upadhyaya, AIR 1960 SC 1125:

The expression, 'accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person, who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer.

Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, while he is in custody of a police officer, is tainted and therefore, inadmissible, if the truth of the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 80/ 95 information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable in so far as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a provision to Section 26, the two sections do no necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which lead to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 81/ 95 the information is admissible as distinctly relates to the fact discovered."

18. In the Judgment Paramjeet Singh @ Pamma Vs. State of Utrakhand while discussing the issue of hostile witnesses, the Hon'ble Supreme Court has discussed in para No. 19 as under:­ " In Mahesh Vs. State of Maharashtra, (2008) 13 SCC 271, this Court considered the value of the deposition of a hostile witness and held as under:

".....If PW 1, the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 82/ 95 and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution".

19. PW­14 Sh. Rajesh Gupta, PW­22 Ct. Devender, PW­ 25 SI Veer Singh and PW­26 Inspector Sanjay Kundu are the witnesses of recoveries. In his testimony PW­14 Sh. Rajesh Gupta has testified that Sh. Manohar Lal informed the IO in his presence that a quarrel had taken place between accused Jitender and Parmod with deceased Kamlesh on the issue of some theft of Rs.3600/­ and that the accused persons had given beatings to Kamlesh with dandas, fist and kick blows. He further SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 83/ 95 testified about the recovery of one attendance card and other articles i.e. one charger, lungi, gamcha, sleepers and blanket. He is also a witness to the recovery of four pieces of wooden phatta at the instance of accused persons.

20. At the time of their arrest, mobile phone of deceased was recovered from accused Jitender and blood stained handkerchief was recovered from accused Parmod and both of them were apprehended with the taxi Maruti Van of black and yellow colour No. DL­1T­4771 from IGI Airport, New Delhi. As per personal search memo Ex.PW­22/B one mobile phone No. 9718544196 was recovered from accused Jitender apart from the other articles and as per personal search memo Ex.PW­22/D one mobile phone having two SIMs of phone No. 9958456829 and 9155563019 was recovered from the other articles. In their testimonies PW­14 Sh. Rajesh Gupta, PW­22 Ct. Devender, PW­ 25 SI Veer Singh and PW­26 Inspector Sanjay Kundu have SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 84/ 95 categorically deposed about the recovery of the four pieces of wooden phatta at the instance of the accused persons from the spot. As per the opinion of PW­7 Dr. B.N. Mishra the wooden phatta recovered at the instance of accused persons was the weapon of offence and the injuries could have been inflected by the same and the injury No. 4 in the PM report Ex.PW­7/A was sufficient to cause death in ordinary course of nature which caused laceration of liver and resulted into hemorrhagic shock. The analysis of the call details of the mobile phone no. 9718544196 of accused Jitender and mobile phone No. 9958456829 of accused Parmod shows that on 13.08.2014 both the accused persons had talked on phone at about 10.04 am and 10.34 am and both these calls were on the phone of accused Parmod from the phone of accused Jitender. As per the cell ID chart accused Parmod had reached the spot at 11:58 am and he was present there till 3:47 pm. As per the cell ID Chart accused Jitender reached the place SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 85/ 95 of incident on 13.08.2014 at about 3.45 am and location of his phone shows that he was present there till 03:52 pm. PW­16 Sh. Avinash Sharma is the owner of premises B­2, Nangli Vihar, Rana Ji Enclave, Main Najafgarh Road, New Delhi and he testified that he had given the DVDs and hard disc of his CCTV camera containing the recording of dt. 13.08.2014 to 17.08.2014. This witness had given a certificate U/s 65 B of the Indian Evidence Act with regard to the CCTV Footage. The CDs Ex.P8 were played in the court in the presence of both the accused persons and their counsel. In the CCTV footage dt. 13.08.2014 accused Parmod and complainant Manohar are seeing sitting in the taxi Maruti Van of black and yellow colour at 12.54 pm and 12.56 pm respectively. It is pertinent to mention here that PW ­12 Sh. Hare Ram Sahu has testified that the accused persons had come to him in a black and yellow colour taxi on that day. As per CCTV footage the aforesaid taxi had returned at around 13:43 pm. At about 15:32 pm accused SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 86/ 95 Jitender is seen getting out of his taxi and sat near the corner. From 15.42 pm to 15.48 pm accused Jitender is seeing going in and coming out of the street many times and finally he sat in the taxi. At 15.51 pm witness Rahul is seeing talking to accused Jitender who was sitting in the taxi and thereafter at 15:52 pm both of them went inside the street and then came out. At 15.53 pm accused Jitender sat in the taxi and fled away. The version of PW­ 9 Sh. Rahul that he had taken out the key of the taxi of accused Jitender and requested him to take the injured Kamlesh to hospital and that on the pretext of taking him to hospital accused Jitender had taken the key back and thereafter instead of taking the deceased to hospital he fled away finds corroboration from the CCTV footage.

21. As per the FSL report Ex.PW­24/A the blood on the handkerchief recovered from accused Parmod had matched with the blood of the deceased. The relevant portion of FSL report is SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 87/ 95 reproduced as under: ­ Results of DNA Analysis "DNA profile of male origin has been generated from the source of exhibit '3' (Blood stained gauze cloth piece of deceased, Kamlesh). However, male DNA profile of male origin also has been generated from the source of exhibits '1' (Handkerchief of accused Pramod), '2a' (Shirt), '2b' (Capri) and '2c' (Underwear).

The alleles from the source of exhibit '3' (Blood stained gauze cloth piece of deceased, Kamlesh) are found similar in the alleles from the source of exhibits '1' (Handkerchief of accused, Pramod), '2a' (shirt), '2b' (Capri) and '2c' (Underwear)"

22. The arguments of the counsel that TIP was not conducted is devoid of any force because there is identity of SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 88/ 95 accused persons and the statement of PW­4 Sh. Manohar Lal clearly mentioned their names. So, there is no question of any identity crisis as both the accused persons were known to PW­4 Sh. Manohar Lal and he had named them in the FIR. As far as the another pillar of arguments of the Ld. Defence Counsels that the case does not attract Sec. 302 IPC and instead it is a case of 304 IPC is concerned, the same does not have any force because while determining intention or knowledge, the manner in which the weapon of offence is used becomes relevant and inference of intention to cause death has to be drawn from the facts and circumstances of the case. In Dilip Kumar Vs. State 1995 CRLJ 1742 (DEL), a single blow with a screw driver on the head of the deceased given with great velocity was held to be indicative of an intention to kill. The focus of consideration is to see from the act done whether an SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 89/ 95 intention of causing the specific bodily injury is emerging and thereafter to see whether the bodily injury intended to be inflected is sufficient in the ordinary course of nature to cause death. In the Judgment Akhlak @ Bhura Vs. The State (G: N.C.T. of Delhi) Crl. Appeal No. 736/2005 dt. 14.01.2009 the Hon'ble High Court of Delhi has discussed in para No. 34 as under:­ "While determining intention or knowledge, the manner in which the weapon of offence is used becomes relevant. In the decision reported as 1979 Crl. LJ (Guj) 334 satish Vs. State of Gujarat, the accused plunged a big knife in the chest of the deceased without any exchange of words, causing death. An inference of intention to cause death was drawn.

23. The velocity of the blow in this case can be gathered by the fact that "right lobe of liver of deceased lacerated on its anterior surface having dimension of 7 cm into 5 cm". The SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 90/ 95 postmortem report shows that there were injuries on the right parietal of head having dimension of 7 cm into 5 cm apart from the other injuries. To sum up there is corroboration of the statements of PW­6 and PW­9 along with statement of PW­3 and PW­12. PW­12 has proved the meeting of both the accused with him along with Manohar PW­4 as well as deceased. PW­4 is seen sitting in the car in the CCTV footage while going to PW­12 along with the accused. In this footage accused Parmod is also seen coming out and sitting in the car at the same time. The arguments of counsel that statements of PW­6 and Pw­9 is hearsay evidence is not acceptable because the first account of incident was brought to their knowledge and they had stated whatever was told to them and that is very material piece of evidence while deciding whether the circumstantial evidence is complete or not. So in these circumstances from all the above SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 91/ 95 discussion, it is crystal clear that ingredients required to prove the circumstantial evidence is complete against the accused persons and is incapable of explanation of any other hypothesis then that of the guilt of the accused. The chain is complete and this court has no hesitation in holding the accused guilty with the commission of the crime taking in view of the proof of mode and manner of the commission of the crime duly supported by electronic evidence as well as FSL evidence along with the location of accused on the spot corroborated by the relevant witnesses. The arguments of accused persons in these circumstances do not hold water.

24. As far as the testimony of PW­4 Sh. Manohar Yadav is concerned, it has come on record in his cross examination conducted on behalf of the state that accused Parmod is resident of his village and it is otherwise evident from the record as the address given by PW­4 Sh. Manohar Yadav in the court during SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 92/ 95 his examination is of village Tagepur PS Jagdishpur District Bhagalpur (Bihar) and as per charge­sheet both the accused persons are resident of the same village. So in the circumstances where PW­4 Sh. Manohar Yadav is clearly visible in the CCTV footage while sitting in the taxi of accused and as per the version of PW­6 Sh. Gainda Ram and PW­9 Sh. Rahul, his presence on the day of incident at the spot is duly proved and the fact that the present case was registered on the basis of his signed statement, it is apparent that he has deliberately not deposed against both the accused persons in the court. From the CCTV footage it is very much clear that he was present on the spot and witnessed the crime. He has deliberately concealed the fact and tried to save the culprits. This can not be tolerated because if he has spoken truth the things would have been easier for decision. In one shot he had tried to nullify and destroy all the efforts of investigating agency as well as prosecution. He has made the SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 93/ 95 signed statement and it should have sanctity because all the investigation started on it. It will give a wrong message if he is not punished for his perjury. Hence, he is required to be summoned to face the trial under the relevant provisions of law.

25. So from the testimonies of the aforesaid witnesses, CCTV footage, call details record, the scientific evidence in shape of PM report, subsequent opinions and FSL Report, the prosecution has successful in proving its case that the deceased was murdered by both the accused persons beyond any reasonable doubts.

26. Accordingly, both the accused persons are held guilty for offences U/s 302/34 IPC.

27. Copy of this judgment be given dasti to the accused persons free of costs. The case property is confiscated to the State and in case no appeal is filed within the prescribed time, SC No. 440323/2016 State Vs. Jitender Kumar & Anr. Page 94/ 95 the same may be disposed of as per rules. At the request of counsel for accused persons, be put up for arguments on the point of sentence on 13.03.2020.

Pronounced in the open court.                               (Ajay Goel)
Dated: 07/03/2020                              Additional Sessions Judge
                                               Special Judge (NDPS),
                                              Dwarka Courts, New Delhi




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