Delhi District Court
Case No. Sc/9099/16 State vs . Harsh @ Honey & Ors. Dated: 22.12.2021 ... on 22 December, 2021
IN THE COURT OF SH. AJAY KUMAR JAIN : ASJ : SPECIAL JUDGE NDPS:
PATIALA HOUSE COURTS: NEW DELHI
Case No. SC/9099/16
ID No. 02403R0220502014
FIR No. 486/14
U/s 302/201/34 IPC
PS Delhi Cantt.
State
Versus
1. Harsh @ Honey
S/o Late Sh. Inder Kumar
R/o A189, 3rd floor,
Nand Ram Park, Uttam Nagar,
New Delhi
2. Aman Bhatia
S/o Sh. Rajesh Bhatia
R/o O22, Vani Vihar,
Uttam Nagar, New Delhi
3. Ashu Sharma
S/o Sh. Raj Kumar Sharma
R/o A168, 3rd floor,
Nand Ram Park,
Uttam Nagar, New Delhi
4. Ankit Khanna
S/o Sh. Surender Khanna
R/o Q45E, Bhagat Enclave,
Uttam Nagar, New Delhi
Date of Institution : 15.11.2014
Judgment reserved on : 21.12.2021
Date of pronouncement : 22.12.2021
JUDGMENT
1. Brief facts of the case as per chargesheet are that on receiving the DD NO. 24A dated 14.08.2014 regarding lying of dead body in front of Base Hospital towards Naraina, SI Satveer Singh and Inspector Shankar Lal alongwith Ct. Rajkumar Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 1 of 28 reached the spot where they noticed the lying of male dead body. The crime team was called however no eye witness was found. Thereafter, the dead body was sent to the mortuary and case u/s 302 IPC was registered. Rough site plan of the place of occurrence was prepared. The blood found on the grass as well as bricks pieces were lifted from the spot. Hue and cry notice was published. The dead body was identified as Nitin @ Puchi from his brother and sister Nirmala. Postmortem was conducted.
2. On 19.08.2014 upon secret information, accused Aman Bhatia, Harsh @ Honey and Ashu Sharma were apprehended who admitted to have killed the deceased. The accused in their disclosure statement disclosed that on the night of 9/10.08.2014, accused Harsh @ Honey when having liquor on the stairs of his house then he had some quarrel with deceased Nitin @ Puchi and thereafter deceased threatened Harsh @ Honey. This incident was reported by Harsh @ Honey to his friends accused Ashu Sharma, accused Aman Bhatia and accused Ankit Khanna, then all the four designed the conspiracy to kill him. The accused persons knew that the deceased used to roam around in the streets of said area in the night. In the night of 13/14.08.2014, all the four accused after the birthday party were taking liquor and started waiting for deceased. At around 11.30 AM, they had seen deceased Nitin @ Puchi, then deceased asked all of them what they are doing and slapped Harsh, thereafter, all of them started beating him. Harsh @ Honey attacked deceased Nitin @ Puchi with the revolver brought by him however he turned therefore, it hit his back. Ankit Khanna pressed his neck and further hit by breaking the liquor bottle on his neck. Ashu Sharma took a stone piece and hit it over his head and Aman Bhatia also hit him with a piece of brick on the face of deceased. When they found that he is dead then all of them put the dead body in a Champion vehicle and threw it in jungle area in front of Base Hospital. They further broke the mobile phone of deceased. Aman Bhatia and Ankit Khanna had cleaned the blood from Champion vehicle from their shirt and then threw it near army college, Ring Road and later parked the said Champion vehicle near the house of Ashu. The revolver was taken by Ankit Khanna.
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3. During investigation, all the three accused pointed out the place of occurrence, then at the instance of Harsh @ Honey, one brick and at the instance of Ashu Sharma, stone piece were seized. Thereafter, at the instance of accused Aman Bhatia, the blood stained shirt of Nitin @ Puchi was recovered. The clothes worn by the accused were also recovered and thereafter, Mahindra Champion vehicle was also recovered. The vehicle was inspected by FSL team and they lifted the blood samples. As per the postmortem report, the cause of death was due to shock as a result of fire arm injury and subsequent opinion, was also taken. The CDR of deceased was also collected. Accused Ankit Khanna could not be arrested however accused Ankit Khanna surrendered before the court on 05.12.2014 thereafter arrested in this case. During investigation, he pointed out the place of occurrence as well as from where the dead body was found. He also disclosed that he had thrown the blood stained shirt near Army Medical College and revolver in Najafgarh drain and further burnt the clothes worn by him at the time of incident. Thereafter, supplementary chargesheet u/s 302/201/34 IPC was filed against him.
4. Vide order dated 12.03.2015, charges u/s 302/34 r/w 201/34 IPC were framed against the accused persons to which they pleaded not guilty and claimed trial.
5. Prosecution for substantiating its case examined 33 witnesses. PW5 Rita Devi, PW22 Giriraj Sharma, PW23 Bimla, PW27 Anita are the eye witnesses of the case. PW33 IO Inspector Shankar Lal, PW14 SI Ram Pratap, PW16 ASI Rajbir, PW19 Ct. Jaipal, PW13 HC Pritam Singh are the witnesses to the apprehension and recovery of the incriminating articles. The summary details of prosecution witnesses are reproduced as under:
Eye witnesses
6. PW5 Rita Devi stated that she knew deceased Nitin @ Puchi as earlier he used to reside at Nand Ram park alongwith his sister and became friendly with his children. On 13.08.2014, he came to his house at around 1212.30 AM and he told her that he was called from his residence at Pahargunj by one of her neighbour Preeti and asked water from her, and after drinking the water, he left and so going towards the house of Preeti and further told that he will give some Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 3 of 28 cash to Preeti. After sometime, she heard noise and saw 67 persons surrounding Nitin @ Puchi. All of them were talking to Nitin @ Puchi under the influence of liquor. She identified accused Ashu and Aman Bhatia. Manu, Nikhil, Punit, Bali were the other associates who were not present in the court. She further stated that accused Ashu grappled deceased Nitin @ Puchi on his neck and threw his head on the ground. Nikhil, Manu caught hold of deceased Nitin @ Puchi and hit his head on the iron gate. Bali picked up one stone and hit deceased Nitin @ Puchi on his head. Brother of punit was also there and he stabbed him with broken bottle. All the accused dragged Nitin to the house of Nikhil and hit his eyes with screwdriver. Manu cut the penis of deceased into half and took out the pistol and fired on deceased Nitin @ Puchi. Then all of them took out the clothes of deceased Nitin @ Puchi and made him nude. At that time, other residents of area were also present and all raised alarm on which Nikhil threatened them and asked them to leave otherwise he will kill them also. All of them put the nude body in the gunny bag and took it into the tempo. She was not having telephone therefore could not inform the police, and on 18.08.2014, she told the sister of deceased regarding the incident. Police made inquiries from her and within sometime, they brought accused Ashu, Aman, Harsh and also Manu. She also made a complaint to SHO. Later on, Manu was let out by the police and accused Ankit Khanna was falsely implicated in this case.
7. On being declared hostile, she is crossexamined by Ld. Addl. PP. She stated that she knew accused Harsh, Aman, Ashu and Ankit as residents of their locality and used to play in the area with her children and she is having cordial relationship with their family. Deceased Nitin @ Puchi was involved in some criminal cases. Accused Ankit is married having two children. She denied suggestion that on intervening night of 13/14.08.2014 about 0101.30 AM while roaming outside the house and saw accused Harsh and Ankit beating deceased Nitin @ Puchi with accused Aman and Ashu. She denied suggestion that parents and relatives of accused Harsh and Ankit met her therefore, she is not identifying accused Harsh and Ankit. She further stated that accused Ankit is not among the assailants at initial stage.
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8. In crossexamination on behalf of accused Ashu stated that she used to sleep after 12 and became unconcious after witnessing the incident for around four days. She did not drink or eat for these four days. The police officials in sector9, Dwarka had recorded all the facts which are not recorded by the IO and she had stated the said facts in hre complaint and statement to police officials in sector9, Dwarka however cannot produce the complaint given to police officials of sector 9, Dwarka and she does not remember the date on which she went to PS Sector 9, Dwarka. She further stated that she does not know whether the deceased Nitin was facing prosecution for trafficking minor children. She also denied suggestion that accused Ashu Sharma is falsely implicated as sleeping in the house after attending the birthday party.
9. On crossexamination on behalf of Aman Bhatia stated that her statement was recorded by police on 18.08.2014 in noon time and had not reported the matter to police till 18.08.2014. She denied suggestion that no such incident took place in the intervening night of 13/14.08.2014. She made a written complaint on 19.08.2014 to SHO PS Delhi Cantt. that IO had not recorded her statement correctly. She also stated to the police that deceased was called from his residence at Pahargunj by one of her neighbour Preeti and she gave water to him who after drinking water left, and further seen deceased went to the house of Preeti, and he gave some cash to Preeti. Then she went inside and after sometime heard loud noise coming from outside and immediately went outside and saw 67 persons surrounded Nitin @ Puchi, Ashu grapelled his neck, Nikhil and Manu caught hold of the deceased and hit his head on iron gate, Bali picked up stone slab and hit the head of Nitin @ Puchi with stone slab, and Punit picked up brick and hit on his face. Punit also stabbed him with broken liquor bottle. Manu cut the penis of deceased Nitin into half. Then Manu took out a pistol and fired on Nitin then the bullet hit him on his back. All of them took out his clothes and made him nude. Other residents of area were also present and all of them raised alarm on which they were threatened by Nikhil. Then they put the deceased into a gunny bag which was then put into tempo and left the spot. She could not inform the police as not having any telephone and went into depression for 34 Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 5 of 28 days. She told the incident to sister of deceased and police not recorded her statement as per her dictation. She further stated that it is correct that there are several houses near her house and did not disclose the incident to any of the neighbours till 18.08.2014. She also stated that accused Ashu, Aman, Harsh and Manu were brought at PS Delhi Cantt. on 18.08.2014 in her presence. They were brought in afternoon.
10. In crossexamination on behalf of accused Ashu stated that she knew the deceased Nitin for last 15 years, since the real sister of deceased used to reside as a tenant in the house of her neighbour Preeti. She further stated that sister of deceased Jyoti is no longer residing in area for last 7 years and she does not know whether total 35 cases were registered against the deceased. She further stated that she came back from work on 13.08.2014 at about 1212.30 AM accompanied by her son Monty and Shanty, and at night had seen Nitin coming downstairs of her house and asked water from her and alongwith Nitin, Sonu had also come downstairs. Sonu is also friend of Nitin. Tenants were also residing on second floor and at the time of incident, they were present. She does not know their names however known as Papadwala having three children and wife. Police did not record the statement of his sons Bunty, Shanty and Monty. She had also made a complaint to police officials at PS Sector9 Dwarka. The house of Preeti is one house after her house and in her presence, Nitin handed over some cash to Preeti. She further stated that she could not make the dinner since heard loud noise coming from outside the house and the place of incident is visible from her doorstep however denied suggestion that it is not visible from her doorstep. She also denied suggestion that where her house is situated and the gali in which the incident took place are two separate gali/lanes however after showing the photograph of place of incident Ex.PW5/DB, she stated that it is correct that if she is standing on her doorstep, she will not be able to directly see the place of incident. She will have to take left turn from her house then again left turn to see the incident. She further stated that she tried to find out the complaint which she had made to SHO against IO but could not locate the said complaint. and denied suggestion that she had not made the complaint to the police.
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11. PW22 Giriraj Sharma also stated that he do not know anything about this case. However in crossexamination after being declared hostile denied suggestion that he heard the sound of fire and seen 34 boys beating one boy. He also denied suggestion that he is won over.
12. PW23 Smt. Bimla also stated she does not know anything about this case however after being declared hostile stated that she told the police that she do not know anything however came to know about a murder in the gali. She also denied to have seen the incident. She also denied that police had brought three accused and they had pointed out the place of occurrence.
13. PW27 Anita stated that she does not know anything about the case. After being declared hostile in crossexamination stated that on the intervening night of 13/14.08.2014 she saw 34 boys beating the deceased, and police brought the accused for identification of place of occurrence.
Witnesses to the apprehension and recovery of the incriminating articles
14. PW13 HC Pritam Singh stated that he accompanied the IO during investigation on 20.08.2014 at 09.00 AM. The accused persons first identified the place where they killed the deceased and also pointed out one stone piece with which they hit the deceased. Pullanda of brick and stone was prepared and then all of them took the team to vacant land in front of base hospital where they had disposed of the dead body. Then IO produced them before the court and three days PC remand was taken.
15. PW14 SI Ram Pratap is the witness to arrest of accused Aman Bhatia, Harsh Kumar and Ashu Sharma. This witness stated that on secret information, he alongwith IO, Ct. Kamlesh and Ct. Jaipal apprehended the accused behind the MCD dustbin, A1 park, Janakpuri (no site plan of place of arrest is made). Thereafter, the personal search of accused was conducted and their disclosure statements were recorded. Thereafter accused were taken to Safdarjung Hospital for medical examination. On 20.08.2014, at around 09.00 AM, he alongwith HC Bachu Singh, Ct. Ashwani, Ct. Pritam Singh and IO Shankarlal joined the investigation and in pursuance of disclosure statement, accused pointed out the place of occurrence then at the instance of accused Ashu, one stone piece was Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 7 of 28 recovered then at the instance of accused Aman Bhatia, one brick was recovered. Site plan of spot was also prepared. Threafter, all the accused persons pointed out the place where they disposed of the dead body after being brought the dead body in Champion vehicle. The pointing out memo of place of occurrence was prepared. Thereafter on 22.08.2014, he alongwith HC Rajbir, Ct. Ashwani and IO Inspector Shankar Lal took out the accused from lockup and accused persons took them to Army Medical College where at the pointing out of accused Aman Bhatia, one gray colour blood stained shirt was recovered (there is nothing in is examination in chief whether the shirt was lying in open place or in concealed position). Thereafter, again the accused persons were taken to the spot where the IO called the crime team which inspected the crime spot and blood stained earth control was taken. IO recorded the statement of public witness Moin Khan. Thereafter at the isntance of accused Harsh @ Honey, blood stained pant and shirt was recovered from his house. Then at the instance of accused Ashu Sharma vehicle Mahindra Champion D van was recovered. Thereafter at instance of accused Aman Bhatia from Vani Vihar, Uttam Nagar, blood stained pant and shirt from the room of his house was recovered. Thereafter on 23.08.2014 during investigation from accused Ashu Sharma, one blood stained jeans pant was recovered. On 05.12.2014 accused Ankit Khanna surrendered and arrested. In crossexamination stated that no public person was joined at the time of arrest of accused persons. However the road near the MCD dustbin is a busy road and they reached near MCD dustbin at around 03.30 PM and left that place at around 06.3007.00 PM. They reached Shiv Mandir, Nand Ram Park at around 11.00 AM on 20.08.2014 and remained there upto 02.30 PM. No special identification mark on the brick and alleged silli. It is also correct that no handing over or taking over memo of seal after use was prepared. He further stated that they went to house of Aman Bhatia at around 11.3012 and remained there for 2 ½ hours however cannot tell the storeys of the house. No family member or neighbour was joined in the investigation.
16. In crossexamination on behalf of Ankit Khanna stated that no recovery was effected at the instance of Ankit Khanna. In crossexamination on behalf of Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 8 of 28 accused Ashu Sharma stated that Mahindra Champion was found parked outside house of Ashu Sharma.
17. PW16 ASI Rajbir Singh accompanied the IO during investigation stated that on 22.08.2014 all the accused took the team to Army Medical college vacant land where at the instance of Aman Bhatia, grey colour shirt was recovered having blood stains thereafter they reached the spot i.e. A188, Nand Ram Park where accused disclosed that they carried out the murder of deceased. Crime team was called at the spot which examined the spot. Then they reached the house of Harsh @ Honey who produced one pair of black shirt and jeans. Ashu Sharma got recovered one green colour vehicle Mahindra Champion used in the commission of crime. Then from the house of accused Aman Bhatia at Vani Vihar black color shirt and blue jeans were recovered. Thereafter they came back to police station. The accused persons were identified by this witness through their faces and not by their names. In crossexamination on behalf of accused Ashu Sharma denied suggestion that vehicle does not belong to Raj Kumar, father of Ashu Sharma. He further stated that no public person was joined in the investigation from the place near Army Medical College. He cannot tell the names of police persons who prepared the document. He further denied suggestion that shirt in question were planted. He does not remember at what time they reached the house of Aman Bhatia.
18. PW33 IO Shankar Lal stated that on 14.08.2014 on receiving the call regarding the lying of dead body, he reached the spot and then called the crime team, prepared rukka pursuant to which FIR was registered. One piece of brick lying at the spot was lifted however they tried to get the dead body identified but of no avail. Wireless message was also transmitted to get the dead body identified. On 18.08.2014, a call was received on wireless from PS Brindapur that one lady was telling that 34 days before near H.NO. 176 after murder the dead body was taken in the vehicle. Thereafter, he took one Mahesh and Nirmala to mortuary and Mahesh identified dead body as of his brother Nitin @ Puchi. Mahesh told him that he was told by Rita that his brother was beaten by Harsh, Aman Bhatia, Ankit, Ashu Sharma and took him in a D van. Then they met Rita, recorded her Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 9 of 28 statement. The house of accused Harsh was found locked. Accused Ashu and Aman Bhatia were also not found present. He recorded statements of witnesses. After postmortem, dead body was handed over to family members of deceased. On the same day, he alongwith SI Pratap, Ct. Kamlesh and Ct. Jaipal left the police station for search of accused where at Jiwan Park, secret informer informed that that accused were behind MCD dustbin then they were apprehended. Arrest memo and personal search memo was prepared. Disclosure statement was recorded in which accused persons disclosed that he can get recovered wearing clothes and the brick, silli. Accused persons also disclosed that they can point out the place of occurrence and they cleaned the blood stained of D van by the shirt of deceased and threw it behind the Army Medical College. Thereafter, accused Aman Bhatia disclosed that he could get recovered the aforesaid shirt (other witnesses stated that the disclosure statement of recovery of shirt was recorded later on). Then all the accused persons were medically examined. On 20.08.2014, accused persons pointed out the place of occurrence and at the instance of accuse Ashu Sharma, silli was recovered and at the instance of accused Aman Bhatia, piece of brick was recovered. All the accused persons then pointed out the place of throwing of dead body and on 22.08.2014, all the accused persons were taken to Ring Road behind Army Medical College from where accused Aman Bhatia took out the blood stained shirt which was stated to be of accused. Thereafter, they again reached the spot and crime team was called. Then at the instance of accused Harsh @ Honey, shirt and jeans pant was recovered. Thereafter, at the instance of Ashu Sharma, Mahindra Champion vehicle was recovered. Then at the instance of accused Aman Bhatia, his black colour shirt and blue jeans was recovered. On 23.08.2014, accused Ashu Sharma recovered jeans pant of sky blue colour having blood stains. On 09.09.2014 postmortem report was received then on 12.09.2014, he went to Safdarjung Hospital for taking subsequent opinion. Accused persons disclosed that they had thrown the mobile at a nala near Tilak Bridge. SIM was found to be used by one Daal Chand. Thereafter, Inspector Uma Bharadwaj arrested Ankit Khanna and supplementary chargesheet was filed.
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19. In crossexamination on behalf of accused Ankit Khanna stated that he had not taken the CCTV footage of place of incident and also not collected any call details of accused and deceased. He further stated in crossexamination on behalf of accused Harsh @ Honey that no family member was found when they reached there. Pant and shirt was hanging. No videography was done. In cross examination on behalf of accused Ashu Sharma stated that he cannot tell how many storeys were in the house of Ashu Sharma. No neighbour joined the investigation. No videography or photography conducted at the time of recovery from the house of Ashu Sharma. He had not collected the CDR of mobile of Ashu Sharma.
Other witnesses
20. PW1 HC Seeta Ram duty officer who register FIR. PW2 HC Dharam Singh is the PCR official who received the information about lying of dead body at around 03.54 PM on 14.08.2014. PW3 SI Khajan Singh, mobile crime team incharge who prepared crime scene report. PW4 Ct. Anil, the photographer of crime team who exhibited the photographs of dead body Ex.PA1 to PA16 and negative Ex.PA17.
21. PW6 SI Satvir who reached the spot and participated in the proceedings at the spot. PW7 Ct. Kapil stated that on 18.08.2014 at around 01.00 PM one call was received from one Mahesh regarding murder 34 days back. PW8 Ct. Rajkumar reached the spot with SI Satbir and took the dead body to the mortuary of Safdarjung Hospital. PW9 Ct. Naveen delivered the copies of FIR to higher officials. PW10 Mahesh stated that they are four brother and two sisters including deceased Nitin @ Puchi who was his younger brother. He stated that on 13.08.2014 his brother deceased Nitin @ Puchi went to Nand Ram Bag to the house of Jyoti however when he did not return for 23 days, he enquired from her who told that he left the house on same day i.e. 13.08.2014 for Pahargunj. On 18.08.2014, he enquired from Rita Devi, neighbour of Jyoti that who told him that at around 01.00 AM, Ashu, Harsh @ Honey, Aman Bhatia, Ankit Khanna and Manu had beaten the deceased Nitin @ Puchi and took him in a vehicle. Thereafter he informed the police at 100 number who took him and Rita Devi to Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 11 of 28 police station. Then he identified the dead body of deceased. On the same day, five accused Harsh @ Honey, Ashu, Aman Bhatia, Ankit Khanna and Manu were brought to PS Delhi Cantt and Rita Devi identified all of them. Harsh, Ashu, Aman Bhatia, Ankit Khanna are present in the court however Manu is not present. Thereafter, on 19.08.2014 he identified the dead body of his brother Nitin. PW11 Nirmala sister of deceased identified his dead body. In cross examination stated that Rita Devi told her about the death of her brother. PW12 Kamlesh Kumar accompanied to the spot with Inspector Shankar Lal Meena.
22. PW15 SI Rakesh, crime team incharge inspected the place of occurrence on 22.08.2014 and prepared the report. PW17 HC Dinanath Yadav handed over the Champion vehicle to FSL and FSL expert collected the blood samples from the vehicle.
23. PW18 Moin Khan states that he was engaged in business of welding however do not know anything about this case. In crossexamination on being declared hostile denied suggestion that accused Ashu Sharma, Aman Bhatia, Harsh @ Honey were brought to his shop on 22.08.2014. He also denied suggestion that accused admitted to have murdered the deceased. He also denied suggestion that IO lifted concrete from the road having blood stains in his presence and photographed the said spot. PW19 Ct. Jaipal is the witness to apprehension of accused Aman Bhatia, Harsh Kumar and Ashu Sharma. He stated that on 19.08.2014 he alongwith Shankar Lal, SI Ram Pratap, Ct. Kamlesh reached A1 Park, Janakpuri behind MCD dustbin and on pointing out of secret informer, accused Aman Bhatia, Harsh Kumar and Ashu Sharma were apprehended. Their disclosure statements were recorded then they led the police team to the spot where they had killed the deceased by firing bullet as well as bricks and stones. PW20 Ct. Naveen exhibited the scaled site plans. PW21 HC Muni Ram malkhana moharrar exhibited the malkhana entries. PW24 Mamta seen the dead body in the jungle and thereafter called 100 number to inform the police. PW25 Ct. Rajesh deposited 16 sealed pullanda to FSL. PW26 Murli Reddy sold the Champion vehicle to Rajkumar. PW28 HC Suresh crime team photographer who took the photographs of the spot on 22.08.2014. PW29 SI Leela Ram recorded Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 12 of 28 DD no. 48B in which one lady stated that some people murdered a boy and took the dead body, and on receipt of same, he reached H.No. 176, Nand Ram Park where met Mahesh and Reeta Devi who informed that Harsh, Naveen Arora, Ashu Sharma and Aman Bhatia murdered the deceased. Then Mahesh identified the dead body. PW30 Dr. Sarvesh Tondon exhibited the postmortem report and the subsequent opinion. PW31 Daal Chand handed over the sim alleged to be of the broken mobile phone of deceased to police. PW32 Inspector Uma Bhardwaj is the witness to rest of the accused Ankit Khanna.
24. All the accused in their statement u/s 294 Cr.PC admitted the FSL (DNA) report prepared by Naresh Kumar, Senior Scientific Officer, FSL.
25. Accused in their statements u/s 313 Cr.PC denied all the incriminating circumstances put to them and stated they are falsely implicated in this case. Material Exhibits
26. Ex.PW1/A is the DD No. 24A dated 14.08.2014 regarding information of lying of dead body. Ex.PW1/B is the relevant DD entry in this regard. Ex.PW1/C is the FIR. Ex.PW20/B is the handing over memo of dead body. Ex.PW33/A is the rukka. Ex.PW1/E is the DD No. 35A. Ex.PW2/A is the PCR form regarding the lying of dead body in front of Base Hospital dated 14.08.2014 15:56. Ex.PW3/A is the crime scene report. Ex.PW5/DA and DB are the photographs of showing location of house of PW5 and place of incident. Ex.PW6/A is the seizure memo of exhibits lifted near the dead body. Ex.PW6/B is the seizure memo of pullanda and sample seal handed over at Safdarjung Hospital. Ex.PW8/B is the seizure memo of exhibits with sample seal. Ex.PW7/A is the PCR form dated 18.08.2014 regarding an information that one lady keh rahi ke hamare ladke ko kisi ne char din pehle murder kar ke gaadi me daal kar le gaye hain. Ex.PA17 is the negatives of photographs. Ex.PW21/L is the road certificate. Ex.PW21/A, 21/B, 21/D, 21/E, 21/F, 21/G, 21/H are the relevant entries in malkhana register. Ex.PW33/B is the rough site plan of the place where the dead body was lying. Ex.PW30/A is the postmortem report. Ex.PW10A and 11/A is the dead body identification statement of Mahesh and Nirmala. Ex.PW14/A is the arrest memo of Aman Bhatia. Ex.PW14/B is the arrest memo of Harsh @ Honey. Ex.PW14/C Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 13 of 28 is the arrest memo of Ashu Sharma. Ex.PW14/G is the disclosure statement of Aman Bhatia. Ex.PW14/H is the disclosure statement of Harsh. Ex.PW14/I is the disclosure statement of Ashu Sharma. Ex.PW14/J, PW14/K, PW14/L and PW14/P are the pointation of place of occurrence. Ex.PW14/Q and PW14/R are the pointation of place where the dead body was thrown by accused Aman Bhatia and Ashu Sharma. Ex.PW14/M is the seizure of one piece of stone having blood stains at the instance of accused Ashu Sharma. Ex.PW14/N is the seizure of blood stained brick at the instance of accused Aman Bhatia. Ex.PW14/F is the rough site plan of the place of lying dead body as disclosed by accused persons. Ex.PW14/O is the site plan of place of occurrence. Ex.PW14/B is the pointation memo and seizure of shirt and pant of Harsh @ Honey having blood stains on the right side of pant. Ex.PW14/X is the pointation and seizure memo of pant and shirt of Aman Bhatia. Ex.PW14/Y is the pointation and seizure memo of pant of accused Ashu Sharma. Ex.PW14/U is the seizure memo of the pieces of concrete and earth control from the spot. Ex.PW14/T is the pointation and seizure memo of shirt of deceased Nitin @ Puchi at the instance of accused Aman Bhatia. Ex.PW14/W is the pointation and seizure memo of Mahindra Champion at the instance of accused Ashu Sharma. Ex.PW17/A is the seizure memo of the blood samples lifted from the Champion vehicle no. DL 1LN 7100. Ex.PW31/A is the seizure memo of mobile sim of deceased from one Daal Chand who stated that the mobile in broken condition was found by him and he had taken out the sim and used it. Ex.PW30/B is the subsequent opinion over the cause of death. Ex.PW33/E is the PCR form showing the information recorded on 18.08.2014 at around 13:09:53 given by Mahesh 'lady keh rahi ki hamare ladke ka kisi ne char din pehle murder kar ke usey gaadi me dall ke kahi le gaye hain'. Ex.PW20/A is the scaled site plan of place of lying of dead body. Ex.PW20/B is the scaled site plan of place of occurrence. Ex.PW15/A is the crime scene report. Ex.PW14/Z is the arrest memo of accused Ankit Khanna. Ex.PW14/Z2 is the disclosure statement of accused Ankit Khanna. Ex.PW14/Z3 is the supplementary disclosure statement of accused Ankit Khanna. Ex.PW28/P1 to P10 are the photographs of place of occurrence. Ex.PW28/P11 to P20 are the negatives of said photographs.
Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 14 of 28 Ex.PA1 to A16 are the photographs of dead body lying at the spot. Ex.PX is the DNA report admitted u/s 294 Cr.PC.
27. Ld. Counsel for accused Aman Bhatia submitted that the entire case of prosecution is false and fabricated. The incident is reported as per the version of witnesses in open place in presence of the crowd however not intimated to the police immediately but through PW5 Rita Devi after five days. Furthermore, PW5 Rita Devi has completely resiled from her statement u/s 161 Cr.PC and explicitly stated that accused Harsh @ Honey and Ankit Khanna are not involved in the incident. Ld. Counsel for accused submitted that the version given by this witness is totally unreliable. Her statement is not corroborated through the postmortem report or through any other witness. Ld. Counsel for accused submitted that this witness has also not named that she informed the incident to PW10 brother of deceased. The recovery of shirt of deceased and pant and shirt of accused Aman Bhatia at the instance of accused Aman Bhatia is totally false and fabricated. PW16 ASI Rajbir Singh categorically stated that the shirt was recovered from vacant land and no photography and videography was done. He also stated that no site plan of place of recovery was made, no public witness was joined. Ld. Counsel submits that IO even could not tell how many floors are in the house of Aman Bhatia from where his pant was recovered. Ld. Counsel for accused submitted that the statement of eye witness and the alleged recoveries are not credible therefore accused is entitled to be acquitted.
28. Ld. Counsel for accused Ashu Sharma submitted that the spot of incident is doubtful because it was thickly populated and alleged that number of residents of area had seen the incident however nobody informed the said incident on the same day but police got the knowledge of incident through PW5 after five days. Furthermore, the testimony of PW5 is not at all reliable. In crossexamination she stated that she had seen the incident from her house however when confronted with the photographs of place of occurrence, she stated that incident was after two streets from her house and is not visible from her house. Ld. Counsel for accused submitted that this PW5 is not at all reliable. The DNA report did not match with the blood samples taken from the spot. There is a contradiction in the Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 15 of 28 statement of witnesses over the handing over of seal after use. PW13 HC Pritam Singh did not state that PW14 SI Ram Pratap was also joined as a member of raiding team. PW13 HC Pritam Singh stated that he had signed both site plans but none of the site plans bear his signature. Ld. Counsel for accused submitted that PW19 Ct. Jaipal stated that he had joined the investigation only on 19.08.2014 and further stated that all the accused pointed out the place of occurrence as well as the recovery of bricks and stones but that was not the case of prosecution which stated that accused persons pointed out the place of occurrence on 20.08.2014. PW33 Shankar Lal Meena is totally silent about the FSL form. All the recoveries in this case are manipulated. No public person was joined. No handing over of seal was there with any public or official witness. Police did not visit the place of occurrence on 18.08.2014 itself after getting the information of incident. No eye witness was taken to the spot to identify the spot after knowledge. The crime team inspected the spot on 22.08.2014 which is after three days of arrest of accused persons. There is a delay in sending the alleged recoveries before FSL. Rajkumar who has been sold the vehicle by PW26 is not examined. No crime team was called when the accused pointed out the place of occurrence and one brick and stone was recovered. Ld. Counsel for accused submitted that the entire case of prosecution is unreliable hence, accused persons are entitled to be discharged.
29. Ld. Counsels for accused Harsh @ Honey and Ankit Khanna submitted that both accused were not identified by PW5. There is nothing recovered at the instance of accused Ankit Khanna. There is no evidence against accused Ankit Khanna except disclosure statement which is inadmissible. There is no investigation on the factum of pistol used in the incident. Ld. Counsel for accused submitted that there is a recovery of one pant and shirt from the accused Harsh @ Honey, and as per FSL report the alleged blood stains did not match with DNA profile hence not incriminating. Ld. Counsel for accused submitted that there is no evidence against accused persons hence, the accused persons are entitled to be acquitted.
30. Ld. Addl. PP for the State submitted that PW5 has given the clear description of the incident and there is no reason to disbelieve her testimony. Furthermore, the Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 16 of 28 complicity of the accused is also through the recovery of blood stained shirt of the deceased and blood stained cloth of the accused corroborated through the blood lifted from the Champion vehicle. The blood stains found on the clothes and Champion vehicle matched with the blood of deceased as per DNA report. The minor variations, exaggeration and the discrepancy in the prosecution witnesses are natural and not hitting the core of prosecution case. The prosecution has been able to prove its case beyond reasonable doubt hence, accused persons are liable to be convicted for the offences charged.
31. Arguments heard. Record perused.
32. As per prosecution case, a dead body lying in naked condition was found on a road near base hospital at around 04.10 PM on 14.08.2014 pursuant to which the police team reached the spot and prepared the rukka however, the dead body remained unidentified, and on 18.08.2014, it is informed by PW10 Mahesh to police at 100 number which is recorded vide Ex.PW7/A at around 01.10 PM that one lady saying that 34 days the murder of a boy was taken place and he knows the persons who killed him pursuant to which police recorded the statement of Rita Devi and Mahesh, and on the basis of photographs of deceased, identified the dead body pursuant to which on secret information, accused Harsh @ Honey, Aman Bhatia and Ashu Sharma were apprehended on 19.08.2014, and thereafter at their instance, the spot was identified and there was alleged recovery of blood stained shirt of deceased as well as blood stained clothes of accused persons and the vehicle Champion van used in carrying the dead body from the spot to jungle seized. Police during investigation also recorded the statement of eye witness PW5 Rita Devi, PW22 Giriraj Sharma, PW23 Bimla, PW27 Anita however except PW5 all other eye witnesses turned completely hostile and stated that they do not know anything about the case.
33. The entire prosecution case hinges upon the testimony of PW5, the recovery of blood stained shirt of deceased at the instance of accused Aman Bhatia, the incriminating recovery of blood stained clothes of accused Aman Bhatia, the recovery of blood from the spot as well as from the Champion vehicle recovered from outside the house of accused Ashu Sharma.
Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 17 of 28 Recovery of the unidentified dead body and factum of non reporting of incident on same day
34. As per the prosecution case, in the intervening night of 13/14.08.2014 at around 0101.30 AM a quarrel took place in which the deceased was killed by accused persons and on the same night they had taken away the dead body and threw it in front of base hospital. The incident took place in a crowded place of Nand Ram Park which is witnessed by number of the residents of the said area on the said night. It appears somewhat unnatural that the said incident was not reported to police on the same day and found to be disclosed through the PCR call on 18.08.2014 by PW10 Mahesh, brother of deceased at around 01.10 PM. Circumstance of unfolding of identity of deceased and the apprehension of accused Harsh @ Honey, Ashu Sharma and Aman Bhatia
35. PW10 Mahesh, brother of the deceased deposed that on 13.08.2014 his brother deceased Nitin @ Puchi went to Nand Ram bagh to the house of Jyoti, his sister, however he did not return for 23 days and then he enquired from her who told that he left the house on same day i.e. 13.08.2014 for Pahargunj. On 18.08.2014 he enquired from PW5 Rita Devi, neighbour of Jyoti who stated to have seen that the deceased was beaten by accused persons and took him in the vehicle. Thereafter, he called the police at 100 number and identified the dead body of deceased on 18.08.2014. PW5 Rita Devi also deposed that on the intervening night of 13/14.08.2014 he had seen that accused persons had killed the deceased and taken the dead body in the vehicle however she could not inform the matter to police, and on 18.08.2014 she informed the said incident to sister of deceased and the accused persons were shown to him on 18.08.2014 in the police station, therefore, as per PW5 testimony, the accused were apprehended on 18.08.2014 however as per the testimony of PW14 SI Ram Prasad, PW19 Ct. Jaipal and PW33 IO Shankar Lal, the accused Ashu, Aman Bhatia and Harsh @ Honey were apprehended upon secret information on 19.08.2014 from behind the MCD dustbin, A1 Park, Janakpuri. There is a complete contradiction in the prosecution case over the manner of apprehension of accused. PW5 categorically stated that Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 18 of 28 accused was brought to PS on 18.08.2014 therefore, the circumstance of apprehension of accused as relied by the police on 19.08.2014 becomes suspect. PW12 Ct. Kamlesh though as per testimony of PW14, PW16, PW33 IO is associated at the time of apprehension of accused but PW12 not stated the said fact. Even otherwise, there is no site plan of place of apprehension of accused. No public witness was joined at the time of apprehension of accused. The circumstance of unfolding of identity of deceased and the apprehension of accused in the manner relied upon by the prosecution also appears suspect. Appreciation of the evidence of PW5 Rita Devi, eye witness of the incident
36. The prosecution case primarily hinges on the statement of eye witnesses namely PW5 Rita Devi, PW22 Giriraj Sharma, PW23 Bimla and PW27 Anita. Except PW5, none of the eye witnesses supported the prosecution case. But PW5 Rita Devi gave a different version to the case projected by prosecution. As per the case of the prosecution, PW5 in her statement u/s 161 Cr.PC (Ex.PW5/A) stated that when in the night of 13.08.2014 at around 0101.30 when she was roaming outside the house, she had seen that the accused Harsh, Aman, Ashu Sharma and Ankit Khanna beating the deceased Nitin @ Puchi and when he fell down then they took him in a vehicle and she had not told the said fact to anybody because of fear of accused and told the said fact to brother Mahesh of the accused and she knew the deceased prior to 78 years back. This witness in her statement before the police mentioned about the present accused persons in her statement u/s 161 Cr.PC however in her testimony before the court gave another version in which she deposed that at around 1212.30 AM when she came to his house from work, she met deceased Nitin @ Puchi who told that he had come to meet Preeti and will give some cash to Preeti, and after sometime she heard noise and saw 67 persons surrounding the deceased who were in drunken state and identified the persons as accused Ashu, Aman Bhatia, Manu, Nikhil, Puneet and Bali. However Manu, Nikhil, Puneet and Bali are not the accused in this case and their names were not found disclosed during the investigation by any of the eye witnesses. She had not named present accused Ankit Khanna and Harsh @ Honey as assailants. This witness further disclosed the incident as Ashu grappled deceased Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 19 of 28 Nitin and threw his head on the ground. Nikhil and Manu caught hold of Puchi and hit his head with iron gate. Bali picked up the stone slab and hit the head of Puchi. Puneet picked up the brick, brother of Puneet stabbed Puchi with broken bottle. Thereafter all dragged him to house of Nikhil and hit his eyes with screwdriver, Manu cut the penis of deceased Nitin @ Puchi into half and then took out the pistol and fired at him. Thereafter all of them took out the clothes and made him nude.
37. This witness has introduced one Puneet, Manu, brother of Puneet into the picture and alleged the fire injury, multiple injury and the cutting of penis on Manu and Puneet. She also stated that the deceased was hit with screwdriver on his eyes however her statement regarding cutting of penis, hitting of eyes, etc also do not corroborate with postmortem report showing injuries on dead body. Therefore, the description of incident as alleged by this witness is not only in contradiction to story of prosecution but also not materially corroborated through the postmortem report over the injuries.
38. Now it is also pertinent to look the prosecution case from the perspective that whether from the testimony it can be inferred that the incident cannot be withheld for five days. PW5 Rita Devi in her examination in chief after describing the incident stated that at that time, all other residents of area were also present and all of them raised alarm however threatened by Nikhil. This itself suggests that this incident had taken place at a public place in public view and admittedly the present accused have no criminal antecedents therefore, it appears somewhat unnatural that incident of murder could not be reported by any of the residents on the said night or thereafter and reported after five days of incident. It is also pertinent to notice that this witness stated that deceased had come to meet Preeti who is residing in neighbour and she had also seen deceased with Preeti. She also deposed that deceased was with Sonu and came downstairs with Sonu and on that day her son Monty and Shanty were also present alongwith her tenants but none of those witnesses were examined by the police. PW10 Mahesh also stated that deceased met her sister Jyoti who is stated to be having tenant Preeti to whom the deceased met. Sister Jyoti is also not examined by the police. This Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 20 of 28 incident happened on the night of 13/14.08.2014 in the vicinity where sister Jyoti is also residing however Jyoti could not get the information of incident on 13/14.08.2014 itself appears somewhat unbelievable. There are number of witnesses come into the picture who had seen the incident as per the testimony of PW5 including her sons but none was examined by the police. The police examined other eye witnesses however they have not supported the prosecution case.
39. This witness also stated that police had not recorded her statement correctly and she had made complaint to SHO in this regard and can produce the said complaint and further also made the complaint regarding the correct incident however despite opportunity not able to produce the said complaint before the court.
40. PW5 in her crossexamination at one place stated that when she was preparing the dinner she heard the loud noise and the place of incident is visible from her doorstep and denied suggestion that it is not visible from her doorstep however in the later part of crossexamination when she was shown the photographs of place of incident stated that it is correct that if she was standing on her doorstep she will not be able to see the place of incident. She would have to take a left turn then another left turn to see the place of incident. Therefore, her testimony regarding the fact that she will be able to see the incident becomes somewhat suspect.
41. PW5 is the only eye witness upon whom is the prosecution relying upon to prove its case however her testimony is suspect because she introduced new assailants and left Harsh @ Honey and Ankit Khanna. She had given the version of injuries which even do not match with injuries shown in postmortem report. No other family members of deceased i.e. his sister Jyoti or Preeti has been examined to corroborate her version. The incident was seen by number of persons in the area and non reporting of incident even clandestinely by any person till 18.08.2014 creates doubt whether the incident had taken place in the manner stated by PW5 in presence of number of public persons. Furthermore, her statement of non reporting the incident because of depression and fear do no also appear very Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 21 of 28 convincing because she does not appear to be at all frightened in her testimony and also stated to have made complaints to the police regarding the incident. Accused persons are also not having any criminal antecedents, on the other hand deceased is found to have criminal background, including sons of PW5. Therefore, to rely upon her testimony, concrete corroboration is required. Circumstance of apprehension of accused, recording of their disclosure statements, pointing out by them the place of throwing of dead body and place of incident, recovery of incriminating clothes of the accused as well as the blood stained shirt of the deceased
42. As per the prosecution story, the accused were apprehended on 19.08.2014 in the afternoon on secret information behind the MCD dustbin however, as per the testimony of PW5 Rita Devi, she identified the accused in the police station on 18.08.2014 itself therefore, the story of apprehension of accused in the manner alleged by the prosecution appears suspect, as already discussed. Now after the apprehension of accused, the prosecution relied upon the testimony of PW14 SI Ram Pratap, PW16 ASI Rajbir Singh, PW33 IO Inspector Shankar Lal, PW13 HC Preetam Singh and PW19 Ct. Jaipal to prove the circumstance of apprehension of accused Aman Bhatia, Harsh Kumar and Ashu Sharma and the incriminating recoveries of blood stained clothes of accused and shirt of the deceased, and also the pointing out of place of throwing of dead body and occurrence. PW14 SI Ram Pratap and PW33 IO deposed that after the apprehension of accused on 19.08.2014 on secret information, they were arrested and their disclosure statements were recorded. There is nothing in the testimony that any pointation or recovery had taken place at the instance of accused persons on 19.08.2014 however PW19 Ct. Jaipal who is witness to apprehension of accused Aman Bhatia, Harsh Kumar and Ashu Sharma stated that on 19.08.2014, he accompanied the IO and other police officials to apprehend the accused on secret information and after apprehension, their disclosure statements were recorded and they led the police team to the spot where they had killed the deceased by firing bullet as well as bricks and stones, and IO has prepared separate pointing out memos in this regard. However as per the testimony of PW33 IO Shankar Lal Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 22 of 28 and PW14 SI Ram Pratap on 20.08.2014 accused persons pointed out the place of occurrence and at the instance of accused Ashu Sharma, one piece of silli which is alleged to be used in committing injury was lifted from the spot and one piece of brick also lifted from the spot and thereafter the accused persons pointed out the place of throwing of dead body. The testimony of PW19 and PW14 and PW33 over the pointation of place of occurrence by accused persons are irreconcilable. This creates doubt over the case of prosecution over the manner of pointing out of place of occurrence or the recoveries of silli and brick from the place of occurrence. It is pertinent to notice here that incident as per police is in the intervening night of 13/14.08.2014 and that too is a public place i.e. street in Nand Ram Park which is a crowded place therefore, it is unlikely that any blood stained brick or blood stained stone silli could be recovered through the accused after 6 days i.e. on 20.08.2014. It is also the case of prosecution that accused persons also reside in same locality therefore, it appears somewhat unnatural that the accused will leave any traces at the spot. It is worth to be noticed that the said incident was seen by number of eye witnesses and the incident is disclosed by PW5 on 18.08.2014 but police prior to the arrest of the accused not tried to identify the place of occurrence through PW5 or other eye witness.
43. PW33 stated that on 22.08.2014, he alongwith PW14 SI Ram Pratap PW16 SI Rajbir and other official took the accused from the lockup and take them to Ring Road behind Army Medical College, and accused Aman Bhatia taken out the shirt from the bushes which was alleged to have blood stains of the deceased however PW14 and PW16 HC Rajbir not stated that the shirt was recovered at the instance of accused Aman Bhatia from the bushes. They only stated that it was recovered from the vacant land behind Army medical college. Admittedly, no public witness was joined at the time of recovery of the shirt, no site plan of recovery of shirt was prepared. None of the witness stated the time when the said recovery has taken place. It is very unlikely that the shirt even if it is thrown, could be pointed out in such a manner and shall remain lying in the open space. The seizure memo of shirt also do not bear the signature of all the accused and only of Aman Bhatia, there is no explanation why the signatures of other accused who have also Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 23 of 28 pointed out that place made witness to the said seizure memo, and this itself suggests that the shirt was not recovered in the presence of all the accused. In these circumstances, the recovery of blood stained shirt of deceased at the instance of accused Aman Bhatia appears suspect.
44. PW33 IO Shankar Lal stated that thereafter on 22.08.2014 accused were taken to the spot and crime team was called which inspected the spot. The blood stains on the cement concrete was lifted. It is not explained by the IO why they have not called the crime team on 20.08.2014 when the accused had pointed out the place of occurrence and they had recovered one piece of stone silli and brick. There is nothing in said seizure memo that police had also seen any blood stains on that spot on the said date i.e. 20.08.2014. PW18 Moin Khan, independent witness also not supported present case in this respect. Therefore, the circumstance of calling of crime team and lifting the blood stains also do not appear to be credible and reliable in the manner projected.
45. PW33 stated that on 22.08.2014 from the spot accused Harsh @ Honey took the police team to his house from where the blood stained shirt and pant was recovered thereafter accused Ashu Sharma took to his house at A168, Nand Ram Park which was locked however he pointed out the Mahindra Champion which was lying parked in the Gali which was stated to be used for carrying the dead body seized. Thereafter, accused Aman Bhatia took them to their house and at his instance a black colour shirt and blue jeans having blood stains were recovered. PW14 and PW16 also deposed on the same lines however the testimony of all these witnesses over the joining of public witnesses or the member of the house found inconsistent. None of the public witnesses were joined at any point of recovery. No site plan was prepared of the recovery of clothes. It is also inconceivable that accused persons will keep the blood stained clothes after 56 days of the murder. Even no public witness was joined at the time of recovery of Mahindra Champion van which was found lying in a galli of a congested area. No site plan of place of recovery was also made. There was no seizure memo of the key. Therefore, all these recoveries also appear to be suspect.
Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 24 of 28
46. PW33 and PW14 SI Ram Pratap also stated that on 23.08.2014 accused Ashu Sharma took them to his house at A168 and from that house, one pant of sky blue colour having blood stains was recovered. The accused was also taken to this house on 22.08.2014 however on that day it was stated to be locked but no public witness was joined to corroborate the said factum. Thereafter again he was taken to said house on 23.08.2014. No witness was joined at the time of recovery of shirt. No site plan was made. The recovery in the sequence made do not appear to be at all credible.
Exhibits lifted from the Champion van
47. The said Champion van alleged to be used in carrying the dead body was recovered at the instance of accused Ashu Sharma which was examined for lifting the blood stains by the FSL. PW17 HC Dinanath Yadav deposed that he had taken the said vehicle on 28.08.2014 to FSL and FSL expert collected the blood samples from the vehicle and handed over them in envelope to him. However it is strange that during investigation, no statement of FSL expert was recorded who had lifted the said samples from the van. The examination of FSL expert before the court is material because he is the person who has lifted the samples from the van and not merely the examiner of the sample. The non examination of FSL expert also makes the factum of lifting of the blood sample from the van suspect. DNA report
48. As per DNA report Ex.PX admitted by the accused persons u/s 294 Cr.PC, the Ex.8 i.e. the stone taken from the scene of crime, Ex.13 i.e. shirts having brown stains described to be of deceased Nitin @ Puchi, Ex.14 pant recovered from accused Ashu Sharma Ex.15 and 15C are the blood on gauze cloth taken from Champion vehicle are found matched with the DNA profile of the deceased. Ex.8 is the stone recovered, Ex.13 is the blood stained shirt of deceased, Ex.14 is the blood stained pant of Ashu Sharma, PW15B and 15C are the blood stains lifted from the Champion van at the instance of accused during PC however the circumstance of apprehension and subsequent recovery at the instance of accused as discussed has already been not found credible. Therefore, the prosecution could not be given any benefit of matching of Ex.8, 13, 14, 15B and 15C.
Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 25 of 28 Postmortem report alongwith subsequent opinion
49. As per postmortem report Ex.PW30/A the injuries on the body of deceased are fire arm injury, fire arm exit wound, injury on the occipital region with fracture, two puncture wounds below the thyroid cartilage, bluish contusion on the right angle of mandible, bluish contusion on the center of abdomen, reddish abraded contusion on the top of left shoulder. As per the opinion, the cause of death was due to shock as a result of fire arm injury. Subsequent opinion Ex.PW30/B was also taken which suggests that injuries 3 and 6 could be caused with stone or brick and injury 7 as a result of fall. Injury 4 could be due to the broken glass. This postmortem report do not mention any injury to the penis or in the eyes through screwdriver therefore, discrediting the version of PW5. It is also pertinent to mention here that the shirt of the deceased seized stated to have some burn marks however the said shirt was not sent for subsequent opinion to ascertain whether in fact the said burn was due to the firearm injury. The postmortem report appears to have discredit the testimony of PW5. Prosecution also failed subsequent opinion on the alleged burn mark on shirt of the deceased to corroborate fire arm injury.
No recovery of revolver
50. As per prosecution case, the cause of death is the fire arm injury and the said fire arm injury was caused by accused Aman Bhatia and after the incident, he handed over the revolver to accused Ankit Khanna however accused Ankit Khanna was not apprehended with other accused persons but surrendered before the concerned MM on 05.12.2014 i.e. after around 3 months of the incident and during investigation, he pointed out the place of occurrence as well as the place where the dead body was thrown. It is the case of prosecution that he threw the revolver in Najafgarh nala and burnt the clothes worn by him however there is nothing on record that he had pointed out the said nala or any proceedings conducted to recover the said revolver from the nala. No investigation also made where he has burnt his clothes. The prosecution does not appear to have tried to investigate from where the said revolver was procured and how it came into the possession of accused persons. The non recovery of revolver also creates doubt Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 26 of 28 about the authenticity of the prosecution story.
No collection of CDR and CCTV footage of the spot
51. PW33 IO categorically stated that he has not collected any CCTV footage or the CDR of the accused persons or the deceased. The CDRs could be very essential piece of evidence regarding the presence of accused and deceased at the spot because the location could be easily ascertained of the accused and deceased at the spot. The CCTV footage could squarely suggest that occurrence of incident or taking of dead body in Champion van from incident to base hospital. Motive
52. For the purpose of motive, the prosecution only relied upon the disclosure statement of accused in which it is alleged that on the night of 9/10.08.2014 when accused Harsh @ Honey having liquor on the stairs of his house then he had some quarrel with deceased Nitin @ Puchi who thereafter threatened Harsh @ Honey. Then accused Harsh @ Honey reported this incident to Ashu Sharma, Aman Bhatia and Ankit Khanna, then all designed conspiracy to kill him. Thereafter, on 13/14.08.2014 when all the four accused after birthday party taking liquor, started waiting for the accused then at around 0101.30 AM deceased asked them what they were doing and slapped Harsh. Then all of them started beating him and accused Harsh @ Honey attacked deceased by revolver brought by him. The motive is that on 09/10.08.2014, accused Harsh @ Honey was having quarrel with the deceased. The prosecution do not tried to substantiate the motive through any other witness or pointing out the said place. The prosecution also not tried to verify whether there was any birthday party. Deceased also do not found as per evidence on record residing in that area and came to that area only on that day. Therefore, it appears somewhat unnatural that accused would wait for him to kill him with prior design. The prosecution case is completely deficient on the aspect of motive of crime.
53. On overall appreciation of evidence on record, the prosecution case hinges on the testimony of PW5 which as appreciated not found fully credible and requires concrete corroboration through direct or circumstantial evidence, however there is no concrete corroboration present. The incriminating recoveries of blood Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 27 of 28 stained clothes of accused and deceased are not at all credible. Even the circumstance of arrest of accused is suspect. The number of accused involved also becomes doubtful in view of the testimony of PW5. The delay in reporting the incident also creates doubt over the prosecution case.
54. It is settled law that fouler the crime, the greater the degree of proof required and the suspicion however strong cannot take place of legal proof and there is a long distance between may be true and must be true. In Sarwan Singh Rattan Singh V. State of Punjab, AIR 1957 SC 637, it was held by the Apex Court that in criminal cases mere suspicion, however, strong, cannot take the place of proof. The court must also take into consideration that an accused is presumed to be innocent till charges against him are proved beyond reasonable doubt. It was held : "considered as a whole, the prosecution story may be true; but between 'may be true' and 'must be true', there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence before an accused can be convicted". The prosecution unable to prove any of the circumstances.
55. Prosecution is obliged to prove its case beyond reasonable doubt, however in view of above discussion, prosecution unable to prove its case beyond reasonable doubt. Hence, accused Harsh @ Honey, Ashu Sharma, Ankit Khanna and Aman Bhatia are acquitted of all charges by granting benefit of doubt. Accused are directed to execute bail bonds under section 437A Cr.P.C. upon furnishing one surety for an amount of Rs. 50,000/. After compliance of section 437A Cr.P.C, file be consigned to record room.
Announced in the open court on this 22nd day of December, 2021 (Ajay Kumar Jain) ASJ/Special Judge NDPS Patiala House Courts New Delhi Case No. SC/9099/16 State Vs. Harsh @ Honey & Ors. Dated: 22.12.2021 Page No. 28 of 28