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Delhi District Court

State vs . Raju Kumar Gaur @ Rajiv Prasad on 27 November, 2014

                                         1




                         In the Court of Dig Vinay Singh
                 ASJ/Special Judge : NDPS : Rohini Courts : Delhi

       In the matter of :

                        SC No.       18/14
                        State Vs.    Raju Kumar Gaur @ Rajiv Prasad
                        FIR no.      382/13
                        PS           Ashok Vihar
                        U/s          302 IPC

           State

           Versus
          Raju Kumar Gaur @ Rajiv Prasad
          S/o Sh. Murli Dhar Gaur @ Murti Prasad
          R/o Kankhoriya, PS Kushiya
          Distt. Kushi Nagar, U.P.



                                     Date of receipt      : 10.03.2014
                                     Date of arguments    : 24.11.2014
                                     Date of announcement : 27.11.2014



                                      JUDGMENT

1. Raju Kumar Gaur is accused of murdering Azam, his co-worker, on 18th November, 2013. It is the case of prosecution that the accused and deceased both used to work together in Factory no. C-59/2 Wazirpur Industrial Area, Delhi. On 18.11.2013, both of them came for the work in the factory and were present in the factory. At about 6 PM, deceased went out of the factory for some purpose. Accused also followed him out SC no.18/14 Dtd.... 27.11.2014 Page 1 of 29 2 of the factory. Azam returned to the factory after few minutes, with an instrument stabbed and still inserted on his back near right shoulder. Other co-workers of the factory saw and spoke to Azam. At that time Azam told other workers that it was the accused who had stabbed him. Thereafter, other co-workers of deceased pulled out the instrument of stabbing, which was an awl (sua). Immediately thereafter Azam fell unconscious. He was taken to the hospital where he was declared brought dead. It is also the case of prosecution that the deceased sometimes used to tease the accused calling him 'hizda' and therefore accused stabbed the deceased on the fateful day. The accused did not return to the factory after he followed the deceased out of the factory. He did not return to the factory even thereafter. He was also found missing from his tenanted premises. Subsequently, he surrendered before Punjab Police on 23.11.2013. Thereafter, he was brought to Delhi and his police custody was obtained.

1.1. As per the case of prosecution, during police remand the accused got recovered his shirt from a place near Sabzi Mandi, Delhi, and got recovered his trouser from the roof of dhaba at Ludhiana where he had worked for few days after the incident but before surrender. It is also the case of prosecution that the area inside the factory, where the deceased and accused used to work, was covered under CCTV camera, and the recording of the time when the deceased and accused went out of the factory and when the deceased returned to the factory in injured condition was taken into possession, which also corroborates the version of the workers. The case was registered on the complaint of co- worker Ram Asrey. Other co-workers, namely, Akshaywar Shah, Mhd.

Iqbal, Ansar Alam and Mhd. Mudassir also witnessed the factum of presence of accused and deceased in the factory; the deceased going out of the factory; the accused following him out of the factory; then return of deceased in injured condition and; the fact that the deceased before his death orally stated that he was stabbed by the accused. 1.2. During investigation the weapon of offence i.e. awl (sua) was seized from the factory; the spot was got inspected by the crime team and; site plan was prepared. The clothes of deceased were handed over to investigating team by the doctors in sealed condition. Subsequently, the awl was sent to the autopsy surgeon seeking opinion about the weapon of offence. The concerned doctor opined that the injury present on the deceased was possible with the weapon and also that the clothes of deceased had cut/punctured marks corresponding to the injury on the deceased. This injury was opined to be sufficient in ordinary course of nature to cause death. The weapon of offence, clothes of deceased and blood sample of deceased in gauze, were sent to the FSL. The FSL result confirmed that there was blood present on the weapon of offence as well as the cotton gauze, but no blood was detected on the clothes of deceased. On the blood stained gauze, human blood of 'O' group was found, but the blood on the weapon was non-reactive as to the grouping. On completion of investigation, charge sheet was filed.

2. Accordingly, charge U/s 302 IPC was framed against the accused to which accused pleaded not guilty and claimed trial.

3. In support of its case, prosecution examined 28 witnesses. Out of the 28 witnesses examined by the prosecution, the factory owner Sunil Jain is examined as PW8; the co-workers of deceased are SC no.18/14 Dtd.... 27.11.2014 Page 3 of 29 4 examined as PW3 Ram Asrey, PW7 Mohd. Iqbal and, PW21 Akshaywar Shah. Out of the above named three co-workers, PW3 Ram Asrey was the complainant on whose complaint the present case was registered. Prosecution also examined one independent public witness Balkar Chand(PW9) who is a witness of recovery of trouser of accused at the instance of accused from the roof of his dhaba, where the accused worked between the night of 19.11.2013 till the night intervening 22nd & 23rd November, 2013. One public witness was also joined by the police at the time of recovery of shirt of accused from near Sabzi Mandi and that public witness is examined as PW25 Ram Bharose Dixit. Other witnesses, besides those mentioned above and besides the investigating officer PW28 Inspector Surender, are more or less formal in nature.

3.1. PW1 Hasne, relative of deceased, identified the dead body of deceased.

3.2. PW2 Raj Kumar Pal was the landlord of the accused. He deposed that on the date of incident i.e. 18.11.2013 the accused went to his factory in the morning but he did not return to the house that night. He also deposed that police came searching for the accused to his premises on 19.11.2013 and he handed over a tenant verification form of the accused to the police which was seized by the police. The said tenant verification form Ex.PW2/B contains photograph of the accused at two places. The witness also deposed that the accused did not return to the tenanted premises continuously up to 28.11.2013, when he was brought to the premises by the police and on that day i.e. 28.11.2013 after breaking open the lock of room of accused, his voter I-card, Adhar Card, SC no.18/14 Dtd.... 27.11.2014 Page 4 of 29 5 identity card issued by Gram Panchayat and one cover of SIM Card of Idea service provider bearing mobile no. 9891380497 were recovered from the room of accused at his instance. Tenancy of accused with this witness is not disputed by the accused. No suggestion was given by the accused to this witness to the effect that the I-Card, SIM cover were not belonging to the accused. No suggestion was given by the accused that he returned to the tenanted premises on 18.11.2013 or thereafter till he was apprehended by the police. Though, in his cross examination this witness admitted that there was a separate passage to reach first floor of the house where room of accused was situated, but had the accused returned to the house even through the separate passage after the incident, particularly after the police reached and enquired from the landlord, this prosecution witness who resides in the same premises would certainly have taken extra care to see whether the accused returned or not. But the witness was categorical that the accused did not return to the house after he went for his job on 18.11.2013. The testimony of this witness thus reflects upon the subsequent conduct of the accused after the incident. 3.3. PW4 Dr. Anand medically examined the deceased when he was brought to ESI Hospital, Rohini at about 7.30 PM on 18.11.2013. This witness deposed that Ram Asrey and Ansar Alam had brought the deceased to the hospital. The deceased had a punctured injury over right shoulder towards back side, and after examination of the deceased, he declared him brought dead. He proved MLC of the deceased as Ex.PW4/A. 3.4. PW5 Surender Kumar the Assistant Nodal Officer from Idea Cellular SC no.18/14 Dtd.... 27.11.2014 Page 5 of 29 6 Ltd. deposed that mobile no. 9891380497 was issued in the name of accused. In the customer application form proved as Ex.PW5/A, the name of customer is mentioned as Raju Prasad son of Murti Prasad House no. J-467, behind Budh Mandir, Azadpur Village, Jahangir Puri, Delhi. The customer application form Ex.PW5/A contains a photograph of the accused and at the time of applying for this connection, a copy of Adhar Card of the accused was submitted. The copy of adhar card submitted along with the customer application form while applying for the mobile connection, is the copy of original adhar card seized from the house of accused by the police on 28.11.2013. Signatures of accused on this application form and his photo as well as copy of adhar card is not denied by the accused. The witness also proved call detail records of mobile of accused for the period 10.11.2013 to 18.11.2013 as Ex.PW5/B along with Cell ID chart Ex.PW5/D and Certificate U/s 65B of Indian Evidence Act as Ex.PW5/C and Ex.PW5/E. 3.5. PW6 SI Nand Kishore was the Incharge of Mobile Crime Team who reached the hospital; inspected the body of deceased and got obtained photographs of the body at the hospital, and then inspected the crime scene and also got obtained the photographs of the crime scene through the photographer of the mobile crime team. He proved his crime team report as Ex.PW6/A. This witness corroborated that at the spot, weapon of offence was found but he claimed that there was no blood stain visible on the weapon and there was no blood stain even in the factory. The witness admitted that no chance print could be found on the weapon of offence or at the spot.

3.6. PW10 Ct. Om Prakash simply carried copies of FIR to the concerned SC no.18/14 Dtd.... 27.11.2014 Page 6 of 29 7 Ilaka Magistrate and to the other senior police officers. 3.7. PW11 Ct. Yadram carried sealed parcels, on 27.12.2013, from the malkhana of the police station to Babu Jagjeevan Ram Hospital. Out of those parcels, one was containing weapon of offence and the other was containing clothes of deceased. Those parcels were examined by the autopsy surgeon of the hospital and the autopsy surgeon gave report on 2.1.2014. The witness also deposed that after the opinion of autopsy surgeon, he carried the sealed parcels back to the malkhana and he deposited it in the malkhana and that till the time case property remained in his possession, nobody tampered with it. 3.8. PW12 Ct. Ashutosh was the concerned DD writer who proved DD no.27 lodged at police post Wazirpur Industrial Area under the police station Ashok Vihar at 7.55 PM, Ex.PW12/A and B, when information about this case was received in the police post Wazirpur. 3.9. PW13 HC Sakambar proved FIR Ex.PW13/A; endorsement on rukka Ex.PW13/B and; the DD no. 3 & 4 lodged at 1.15 AM and 2.00 AM on 19.11.2013 regarding commencement and conclusion of registration of FIR.

3.10. PW16 Dr. Sanjay proved the post mortem report of the deceased. This witness conducted post mortem along with another Dr. Bhim Singh on 20.11.2013. Post Mortem report is proved as Ex.PW16/A. It is deposed that in the external examination of the deceased,

(i) There was a stab wound, circular in shape and of about 3 mm in diameter having regular contused margins situated on right scapular region of chest, 7 cm away from posterior midline and 144 cm above the right heel. On further SC no.18/14 Dtd.... 27.11.2014 Page 7 of 29 8 exploration, after cutting, cutaneous and sub-cutaneous tissues it goes forward, downward and medially to enter ICS between third and fourth ribs, goes forward to further inter middle mediastinum to make a cavity deep cut of about 2 mm diameter in postero medial wall of right ventricle of heart (track was about 15 cm long). Pericardiac sac contained about 1.5 liter of clotted and liquid blood;

(ii) scratch abrasion brownish in colour of size 2.5 X 0.3 cm obliquely lying on upper portion posterior aspect of left .... arm.

3.11. The witness deposed that the cause of death was shock due to cardiac temponade and cardiac injury consequent upon injury no. 1 by pointed, cutting cylindrical weapon. The witness also deposed that it was the first injury which was sufficient in the ordinary course of nature to cause death. He also deposed that the left lung of the deceased was found collapsed and that the injury was by a pointed, cutting cylindrical weapon. This witness also deposed that on 2.1.2014 the weapon of offence as well as clothes of deceased were brought for subsequent opinion and after examination of the weapon as well as clothes, opinion Ex.PW16/B was given, reporting that the cut mark on the T-shirt of the deceased corresponds to the injury present on the body of deceased and the possibility of cut mark on the T-shirt as well as injury on the body mentioned in the post mortem report could be possible from the weapon of offence shown to the doctor and it cannot be ruled out that this sua was used for inflicting injuries. The witness also identified weapon of offence in the court.

3.12. PW17 HC Ravinder Kumar was the malkhana moharrar of the police station who deposed that on 19.11.2013 Inspector Surrender Singh deposited one sealed parcel sealed with the seal of SSY containing weapon of offence which was taken into malkhana vide entry Ex.PW17/A in the relevant Register no. 19. He also deposed that on 20.11.2013 SI Rakesh deposited two sealed parcels sealed with the seal of FMT BJRM containing clothes of deceased and blood gauze piece and one sample seal which were also taken into malkhana vide entry Ex.PW17/B; on 26.11.2013 Inspector Singh deposited one sealed parcel sealed with the seal of SSY containing shirt of accused vide entry Ex.PW17/C; on 28.11.2013 Inspector Surender Singh deposited one more parcel sealed with the seal of SSY containing trouser of accused vide entry Ex.PW17/D; on 15.2.2014 Inspector Surender Singh deposited one sealed parcel sealed with the seal of SSY containing DVDR with video footage of CCTV Camera vide entry Ex.PW17/E. On 27.12.2013 the parcel containing weapon and clothes of deceased were sent to BJRM Hospital through Ct. Yadram for opinion; on 2.1.2014 the weapon of offence was deposited in the malkhana sealed with the seal of FMT BJRM; on 15.1.2014 Ct. Nawal carried the exhibits to the FSL Rohini and after depositing the parcels in the FSL acknowledgment receipt Ex.PW17/G was deposited in the malkhana. The road certificate through which exhibits were sent to the FSL on 15.1.2014 is proved as Ex.PW17/H. 3.13. PW20 SI Rakesh Duhan got the post mortem of the deceased conducted on 20.11.2013 after completing the necessary formalities. This witness also deposed that after post mortem, the clothes of the SC no.18/14 Dtd.... 27.11.2014 Page 9 of 29 10 deceased were handed over to him in a sealed parcel sealed with the seal of FMT BJRM Hospital, which he carried to the malkhana and deposited them in the malkhana. He also proved the seizure memo of the clothes as Ex.PW15/A. 3.14. PW23 Ct. Subhash was the photographer in the mobile crime team and he took the photographs Ex.PW23/1 to Ex.PW23/8, of the body in the hospital. Photographs of the crime scene are Ex.PW23/9 to Ex.PW23/28.

3.15. PW26 Inspector Mahesh was the draftsman who on 28.1.2014 took measurement of the crime scene and thereafter prepared a scaled site plan of the crime scene Ex.PW26/A. 3.16. PW27 Ct. Nawal carried the exhibits from the malkhana to the FSL on 15.1.2014 and deposited them in the FSL. He also confirmed that after depositing the exhibits in the FSL he obtained acknowledgment receipt which he carried and deposited in the malkhana.

3.17. PW14 ASI Raj Kumar and PW18 SI Raj Kumar, both, went to Jalandhar in Punjab on 23.11.2013 along with Ct. Aditya and one more constable as information was received from there that accused had surrendered there. At Jalandhar, the accused was arrested formally and then he was brought to Delhi and produced in the court. 3.18. PW25 Ram Bharose Dixit is a witness to the recovery of shirt at the instance of accused on 26.11.2013 at Club Road, Roshanara road near Sabzi Mandi. This witness deposed that on 26.11.2013 certain policemen came and requested him to become witness upon which he agreed and then the accused got recovered his shirt which fact of recovery was also photographed. The witness identified the shirt in the SC no.18/14 Dtd.... 27.11.2014 Page 10 of 29 11 court as Ex.P-12 and also identified the accused as well as seizure memo Ex.PW15/C and site plan Ex.PW15/A bearing his signatures. The photographs are proved as Ex.PW15/D1 to D5.

3.19. PW9 Balkar Chand deposed that he runs a dhaba opposite bus stand of Ludhiana, Punjab. On 19.11.2013 at about 7 or 7.30 PM, the accused came to his dhaba and was in need of job. He allowed the accused to work in his dhaba. The accused worked in his dhaba for about three days up to 22.11.2013 in the night, but he went missing on 23.11.2013. Witness also deposed that subsequently on 27.11.2013 the accused was brought by the police to his dhaba and from the roof of his dhaba the accused got recovered his pant which was taken into possession by the police after sealing the same. The witness identified his signatures on the seizure memo Ex.PW9/A. 3.20. PW22 Praveen Sharma deposed that on 18.11.2013 upon being called to the factory of Sunil Jain, he went there and prepared copies of CCTV footage regarding the incident which he copied in two DVDRs and two pen drives and handed over to Mr. Sunil Jain on 20.11.2013. He also deposed that on 15.2.2014 also, on being called, he again went to the factory of Sunil Jain where policemen and Sunil Jain were present and then the CCTV footage was played and thereafter the DVR and hard disk were handed over to the police by Sunil Jain which was sealed and was taken into possession vide seizure memo Ex.PW8/B bearing his signatures. The witness also identified the pen drives and the two DVDs as well as the DVR.

3.21. PW19 SI Azad Singh and PW24 Ct. Aditya deposed that on receiving DD no. 27, they reached ESI Hospital where the deceased was already SC no.18/14 Dtd.... 27.11.2014 Page 11 of 29 12 declared brought dead. Complainant Ram Asrey, witnesses Iqbal, Akshaywar and Ansar Alam were present in the hospital; crime team was called; photographs of the body were obtained; thereafter complaint of Ram Asrey was taken down and rukka Ex.PW19/A was prepared. Then the body was sent to the mortuary of BJRM Hospital through Ct. Sachin. Thereafter, the co-workers as well as policemen came to the crime scene where the crime scene was inspected, photographs were taken and the case was got registered through Ct. Aditya. 3.22. PW15 HC Ashok Kumar joined investigation on different dates. He reached the factory on the date of incident where sketch of sua was prepared by the investigating officer; its measurement was done; it was seized and site plan was prepared. This witness also accompanied Inspector Surender Singh to the house of accused where the landlord of accused met but the accused was not present. This witness also is a witness of; recovery of shirt at the instance of accused on 26.11.2013; recovery of trouser of accused at his instance on 27.11.2013; recovery of documents from the house of accused on 28.11.2013 and; witness of DVR Hard disk on 15.2.2014.

3.23. PW28 Inspector Surender Singh was the investigating officer who deposed about the investigation conducted in the present matter and the recovery of clothes of accused effected at his instance. This witness also deposed that at the crime scene on 18.11.2013 the weapon of offence was seized after its sketch was prepared. The crime scene was also got inspected through the crime team; call detail records of the mobile phones of accused were obtained after the incident. The witness also deposed that on 19.11.2013 a raid was conducted to the house of SC no.18/14 Dtd.... 27.11.2014 Page 12 of 29 13 accused but he was not present and his landlord met the police team who handed over the tenant verification form. Thereafter efforts were made to arrest the accused but only on 23.11.2013 information was received about surrender of accused. Then the accused was brought to Delhi. Thereafter, pursuant to his disclosure his shirt and trouser were recovered on 26.11.2014 and 27.11.2014, respectively. The witness also deposed that on 28.11.2013 the accused led the police team to the place of incident and pointed out to a place near the gate of factory as the place where he had stabbed the deceased. Site plan of that place was prepared Ex.PW3/E. Thereafter, on that very day i.e. 28.11.2013 from the house of accused above mentioned documents were obtained. The witness also deposed that on 15.2.2014 the DVDR containing CCTV footage was seized.

3.24. The concerned DVD was played in the court during the testimony of this witness. In the footage it is seen that the deceased went out of the factory at 5.55 PM on 18.11.2013; thereafter, the accused followed the deceased out of the factory at 5.57 PM; thereafter, the deceased returned to the factory at 6.00 PM with a sua stabbed on right side back side of shoulder; the deceased came and sat on the floor; thereafter the co-workers collected around him and his co-worker pulled out the instrument from his body. It is also seen that after 45 seconds of his return to the factory, the deceased fainted and during this time his co- workers were seen talking to the deceased. His co-workers include the witnesses examined in the present matter.

3.25. Sunil PW8 deposed that the accused and deceased were both working in his factory on 18.11.2013. He also deposed that both of them along SC no.18/14 Dtd.... 27.11.2014 Page 13 of 29 14 with other co-workers Akshaywar, Muddasir, Ram Asrey, Ansar Alam, Mhd. Iqbal and others were present in the factory. At about 6 PM he was called by Mhd. Iqbal and Muddasir. He went to the place where Azam was lying on the floor in the factory. His associates told him that before fainting the deceased told that accused had stabbed him. On his instructions, his co-workers took the deceased initially to D.R.Hospital in Ashok Vihar. He also followed them. At D.R.Hospital, he was told that deceased was referred to ESI Hospital in Rohini, then the deceased was taken to ESI Hospital in Rohini. At ESI Hospital, the deceased was declared brought dead. At the hospital, statement of complainant Ram Asrey was noted down, thereafter, the police along with co-workers and him came to the factory where the proceedings were done including seizure of the sua from the factory. This witness specifically deposed that during this entire period, after the incident, and thereafter accused Raju was not traceable. The accused did not return to the factory and his phone was also switched off. He specifically deposed that accused Raju was present in the factory before Azam went out of the factory but thereafter he was not seen and was not traceable. The witness, owner of factory, also told that Raju should have been present in the factory on the date of incident till about 8.30 PM but he was not seen after Azam sustained injuries. He also deposed that Raju did not come to the factory after the incident till 28.11.2013, when he was brought by the police. This witness also confirmed that on 20.11.2013 he had handed over two pen drives and two DVDs of the CCTV footage of the cameras installed in his factory to the investigating officer which was taken into possession by the investigating officer. He also confirmed that on SC no.18/14 Dtd.... 27.11.2014 Page 14 of 29 15 15.2.2014 the DVDR was taken into possession by the police after footage was watched in his factory. This witness also proved that on 20.11.2013 he had handed over one register regarding attendance of workers in his factory to the investigating officer which was seized by the investigating officer. The said register is proved by the witness as Ex.PW8/D. In the said register, presence of accused is marked at Serial no. 8 and presence of deceased is marked at Sl. No.10 on 18.11.2013. In the register, presence of witnesses Ram Asrey, Akshaywar, Mhd. Iqbal and Ansar Alam are also mentioned at Sl.no 5, 3, 6 & 4 respectively.

3.26. In the cross examination of this witness, the register and the contents of register were not disputed to create any doubt.

3.27. The co-workers of the accused and the deceased are examined as PW3 Ram Asrey, PW7 Mohd. Iqbal and PW21 Akshaywar. Out of them, Ram Asrey is the complainant. These three witnesses supported the testimony of each other and deposed that on 18.11.2013 they were working in the factory of Sunil Jain, where all these three witnesses were present in the factory at about 6 PM and accused as well as the deceased Azam were present in the factory. All three of them deposed that Azam went out of the factory and thereafter accused followed him out of the factory, then Azam returned having a stab injury on his back with sua. On being enquired, Azam told the witnesses that it was accused Raju who had inflicted sua injury on his back. The witnesses saw a sua still inserted in the body of the deceased whose handle of black colour was only visible outside. The co- workers pulled out the sua from the body of deceased. Thereafter, the SC no.18/14 Dtd.... 27.11.2014 Page 15 of 29 16 deceased fell unconscious. The factory owner was called. The deceased was then rushed to D.R.Hospital in Ashok Vihar. From D.R.Hospital, the deceased was referred to ESI Hospital and then deceased was taken to Rohini. There the deceased was declared brought dead. Police came at hospital where statement of Ram Asrey was recorded. Crime team inspected the body of deceased in the hospital and obtained photographs. Thereafter, the workers and police team went to the crime scene at the factory where the sua was measured and was taken into possession after its sketch was prepared. Accused Raju went missing after the incident and he did not return to the factory. Site plan of the crime scene was prepared. Witness also deposed that subsequently on 28.11.2013 the accused was brought to the factory by the police and at the instance of accused a pointing out memo of the place where the accused stabbed the deceased outside the factory was prepared. The witnesses also identified the sua as well as clothes of the deceased in the court. These witnesses also identified the accused categorically in the court. The witness also deposed that the deceased used to tease the accused sometimes by calling him hizda. Ram Asrey specifically deposed that sometimes the deceased teased the accused calling him hizda in the factory in his presence and in presence of others but the deceased used to call it light heartedly. These three witnesses confirmed that after the accused followed the deceased out of the factory, he never returned to the factory either on that day or thereafter till he was apprehended by the police and was brought by the police.

4. On completion of the prosecution evidence, all the incriminating SC no.18/14 Dtd.... 27.11.2014 Page 16 of 29 17 evidence was put to the accused in his examination U/s 313 Cr.P.C. In his examination the accused admitted that he was working in the factory of Sunil, particularly on 18.11.2013 he was present on duty from the morning till evening about 6 or 6.15 PM. The accused also admitted that his co-workers Ram Asrey, PW7 Mohd. Iqbal, PW21 Ansar Alam, and, Sunil as well as deceased Azam were present in the factory on that day till about 6 or 6.15 PM. The accused also admitted that at about 6 or 6.15 PM the deceased Azam went out of the factory. The accused even admitted that he went out of the factory after sometime of Azam leaving the factory. But he claimed that he did not stab the deceased. On being questioned as to the absence of accused after the incident, the accused claimed that he had returned to the factory but when he noticed that there was crowd present in the factory, he went back. The accused did not explain as to for what reason he went back on noticing the crowd in the factory. He did not explain as to why he did not stay back in the factory and why he did not try to find out as to the presence of crowd in the factory. When the accused was questioned that he did not return to the factory even after the date of incident, he admitted even that fact. He claimed that he surrendered before the Punjab Police, since, he came to know that police was visiting his house in Delhi and police was bothering his family members and therefore, he went and surrendered as to why police was visiting his house and harassing his family. When the accused was questioned that he did not even go to his tenanted premises after the incident continuously, he admitted even the said fact. Accused did not SC no.18/14 Dtd.... 27.11.2014 Page 17 of 29 18 explain as to what made him go to Punjab from Delhi and what made him not visit his house on the night of occurrence or thereafter. In his statement, the accused admitted that he was using mobile no. 9891380497 during the relevant time. He even admitted his photograph on the tenant verification form Ex.PW2/B. However, he denied having made any disclosure statement and claimed that his signatures were obtained on blank papers and also that he did not get recover any pant or shirt and that those clothes were planted upon him. Accused did not deny the election I-card, Adhar Card and the cover of SIM recovered from his house. Accused admitted that Azam used to tease him sometimes by calling hizda, but he claimed that he did not nurture any grudge against Azam. He claimed that he had stopped talking to the deceased but he was not feeling inimical. Accused admitted that he worked in the dhaba of PW9 between 19.11.2013 to 22.11.2013. He claimed that the pant and shirt recovered were not his pant and shirt. He claimed that he was falsely implicated simply because he had left the factory of Sunil Jain. When he was questioned as to why his co-workers would depose against him, he stated that they deposed falsely against him because he was not on talking terms with the co-workers. Initially, accused opted to lead defence evidence in his favour, but without leading any evidence in his favour, the accused closed his defence evidence on 19.8.2014.

5. I have heard Ld. Prosecutor for the State and Ld. Amicus curiae for the accused.

6. As mentioned above, there is no eye witness to the incident who saw the accused stabbing the deceased. The case of prosecution is primarily SC no.18/14 Dtd.... 27.11.2014 Page 18 of 29 19 based on two pieces of evidence i.e. oral dying declaration of the deceased given to his co-workers and the conduct of the accused in following the deceased out of the factory before the incident; then return of the deceased in injured condition inside the factory; absence of accused thereafter, continuously not only from the factory but also from his place of residence. So far as recovery of pant and shirt of the accused are concerned, the said recovery is not of much importance in the present matter since admittedly those clothes were not bearing any blood stains and they do not confirm or prove any fact regarding the incident against the accused or in his favour. The weapon of offence was still there in the body of deceased which was taken out by the co- workers and therefore, there could not have been any recovery of weapon of offence from the accused.

7. U/s 32 of Indian Evidence Act, a statement given by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death is a relevant fact and can be proved. Law is well settled that if a dying declaration of a person is found to be trustworthy, it can form the sole basis of conviction. The law on the issue of dying declaration can be summarised to the effect that in case the court comes to the conclusion that the dying declaration is true and reliable, has been made when the deceased was fit physically and mentally to make the declaration and it has not been made under any tutoring/duress/prompting; it can be the sole basis for recording conviction. In such an eventuality no corroboration is required. But since the person who made that statement is not available for being tested by virtue of cross examination certain degree of cautiousness is required to SC no.18/14 Dtd.... 27.11.2014 Page 19 of 29 20 be exercised while appreciating such evidence. Since the dying declaration of this case is oral and not written, therefore, the truthfulness of the dying declaration will have to be gathered from the circumstances as well as from the testimonies of PW3, 7 & 21. PW3, 7 & 21 were admittedly co-workers of accused as well as deceased. The co-workers were expected to ask the victim the name of the assailant at the first opportunity and if the victim was in a position to communicate, it is reasonably expected that he would give the name of the assailant if he had recognised the assailant. In the instant case there is no occasion to hold that the deceased was not in a position to identify the assailant because it is nobody's case that the deceased did not know the accused. It is therefore quite likely that on being asked the deceased would name the assailant. Throughout in the cross examination of these three witnesses or in the statement of accused, the accused did not suggest any possible reason for these co-workers to be inimical towards the accused. All that he claimed in his statement was that since he was not talking to the co-workers, therefore, co-workers deposed against him. Why he was not talking to the co-workers or what was the reason behind fight, if any, is nowhere to be mentioned in the entire trial. It was the deceased who used to tease the accused. It is not the case of accused that any of these three witnesses or any other co-worker besides the deceased used to tease him. Thus, there is no reason as to why these three prosecution witnesses would falsely depose against the accused. All three of them consistently deposed that when Azam returned to the factory after the incident, he had a sua stabbed on his back towards right side shoulder. Before the sua was pulled out, the SC no.18/14 Dtd.... 27.11.2014 Page 20 of 29 21 deceased orally told these witnesses and other co-workers present in the factory that it was accused who had stabbed him. There is no reason for this court to doubt the oral dying declaration of deceased given to these three witnesses and others. Nor there is any reason for this court to doubt as to why these witnesses would introduce the factum of dying declaration, if it was not actually made to the witnesses by the deceased. Testimony of Sunil also confirms that the dying declaration was not subsequently introduced. Sunil deposed that as soon as his co-workers shouted calling him in the factory and he reached near the place where deceased was lying on the floor, his workers informed him that the deceased had told that Raju had stabbed him.

8. There was a motive available with the accused to commit the crime. The accused admitted that deceased used to tease him by calling hizda. It is a matter of common knowledge that when a person is called by such names, it can enrage the person and can give rise to severe bitterness. Though the accused stopped talking to the deceased, but that fact alone cannot give rise to an inference that there was no motive with the accused to commit the crime. Motive is a mental element which has to be gathered from the circumstances. There cannot be any direct evidence to prove motive. Merely because the accused had stopped talking to the deceased does not mean that he had pardoned the deceased or the said fact of teasing was not bothering the mind of accused. I do not see any reason to doubt the dying declaration given by the deceased to his co-workers, immediately after the incident, and therefore it stands established beyond reasonable doubt that before his SC no.18/14 Dtd.... 27.11.2014 Page 21 of 29 22 death, as to the cause of his death the deceased orally informed his co- workers that accused stabbed him.

9. In the present case, the CCTV footage of the factory of Sunil has been proved. The DVDs and pen drives were exhibited in the evidence but certificate U/s 65B of Indian Evidence Act in support of the DVDs and pen drives was defective to the extent that it did not meet all the requirements of Sub Section 2 of Section 65B of Indian Evidence Act. PW-8 Sunil, was recalled and he proved afresh certificate U/s 65B of Evidence Act. Even otherwise in the present case, even the original medium i.e. DVR in which the footage was recorded has been sealed and has been proved in the court. The said DVR was taken into possession by the investigating officer on 15.2.2014 in presence of the factory owner Sunil Jain and Praveen PW22. Once the original medium of recording and memory disk was produced in the court containing the CCTV footage, the requirement of compliance with the directions U/s 65B looses significance. Even otherwise, the mode of proof of the DVDs and pen drives as well as exhibition of Sec. 65B of Indian Evidence Act has not been challenged by the accused in the cross examination of the prosecution witnesses PW-8 before he was recalled.

10. In the testimony of investigating officer the DVDs was played and in the said CCTV footage, it was found that the deceased went out of the factory, followed by the accused within two minutes and then within three minutes the deceased returned to the factory in injured condition. The CCTV footage also clearly reveals that before the sua was pulled out of the body of deceased, the co-workers are seen talking to the deceased while the deceased is sitting on the floor. It was at that time SC no.18/14 Dtd.... 27.11.2014 Page 22 of 29 23 the co-workers must have asked the deceased as to how the deceased sustained injury and it is at that time the deceased must have informed the co-workers as to who gave that stab blow. The CCTV footage thus confirms and corroborates the oral testimonies of PW3, PW7 & PW21. PW3, PW7 & PW21 are also visible in the CCTV footage. The footage corroborates the version of the prosecution witnesses. Thus, this court has no doubt to suspect the dying declaration given by the deceased naming the accused. The dying declaration stands proved beyond all reasonable doubt and the said fact alone is sufficient to base conviction in the present matter.

11. Yet the conduct of the accused in following the deceased out of the factory within two months; in not returning to the factory before or after the deceased returned to the factory; in not returning to the factory that evening; not returning to his tenanted premises that night and; staying absent and missing from his factory as well as his house continuously thereafter till he surrendered before Punjab Police is a strong adverse circumstance against the accused. The explanation put forth by the accused that he returned to the factory but again went back on noticing the crowd, also does not help the case of accused. Rather that answer inculpates the accused. If a worker goes out of a factory for some reason and if on return the worker notices crowd in the factory, in all probable human conduct, the said worker would rather be curious and eager to find out the reason behind the crowd gathering in the factory. The conduct that without enquiring anything, the accused went back, reveals his guilty mind at that time. Even if it is believed that the accused actually returned to the factory and went back on noticing the SC no.18/14 Dtd.... 27.11.2014 Page 23 of 29 24 crowd, if the accused was innocent, what made him not going back to his house on the date of incident or even thereafter? This answer is not given by the accused. This conduct of the accused itself is a very strong adverse circumstance and admissible as relevant U/s 8 of the Indian Evidence Act. This subsequent conduct of the accused further corroborates the dying declaration of the deceased that it was the accused who stabbed the deceased.

12. Ld. Counsel for the accused argued that the fact that the accused went and surrendered before Jalandhar Police on 23.11.2013 admitting his guilt is not admissible and his disclosure is also not admissible. Even if we ignore the fact of surrender of accused at Jalandhar entirely admitting his guilt before the police of that state and even if we ignore the entire disclosure statements of the accused, still the prosecution has been able to prove its case against the accused beyond reasonable doubt from the dying declaration and from the post crime conduct of the accused. Accused himself admitted that he surrendered before Jalandhar police. Accused himself admitted that from 19.11.2013 till 23.11.2013 he was in Punjab. He did not offer any explanation as to why he went there. He did not offer any explanation as to why he had to work in a dhaba from 19.11.2013 to 22.11.2013.

13. It is next argued on behalf of the accused that nobody from the D.R.Hospital, Ashok Vihar was examined to prove that the deceased was initially taken to that hospital and no record from that hospital was proved. This, according to the counsel for accused creates suspicion about the truthfulness of the co-workers of deceased. The argument is fallacious. I do not see any ground to disbelieve the version of co-

workers simply because no record and no one from the D.R.Hospital was examined. Prosecution witnesses in their cross examination explained that when they took the deceased to D.R.Hospital, the doctor was not available and the nursing staff immediately asked the deceased to be taken to bigger hospital. It may be because D.R.Hospital was not a big hospital and was not well equipped to attend serious case. When the deceased was not even admitted in the hospital and no document was prepared in the D.R.Hospital, there was no need to have proved any record, or to summon someone from the hospital. MLC of the deceased from the ESI Hospital where he was taken has been proved. The said MLC corroborates prosecutions story and also corroborates the factum of presence of Ram Asrey and other co-workers who took the deceased to ESI Hospital.

14. The contention that in the MLC Ex.PW4/A, it is mentioned that the deceased was hit by a screw driver, therefore, the version of prosecution witnesses should be disbelieved is again fallacious. Indeed it is mentioned in the MLC Ex.PW4/A that the deceased was brought with a history of being hit with a screw driver at factory. But I do not find anything more than a communication gap between the workers who took the deceased to hospital and the doctors. A screw driver does not have a pointed tip, and is not cylindrical in shape usually. The post mortem of the deceased confirmed that the injury was caused by a pointed cylindrical weapon, like one recovered in the present case. Merely because word screw driver instead of sua is mentioned in the MLC does not create any doubt. No question was asked by the accused to the PW4 doctor or the autopsy surgeon PW16 that the injury on the SC no.18/14 Dtd.... 27.11.2014 Page 25 of 29 26 deceased were possible with a screw driver and not with a sua.

15. It is next argued on behalf of accused that there is no video footage of the investigation conducted by the investigating agency at the spot and therefore, the CCTV footage appears to be tampered. There is no force in this contention. Prosecution witnesses admitted that after the incident, in order to preserve the CCTV footage, the CCTV cameras were put off and therefore, once the cameras were put off, the cameras could not have recorded the investigation aspect of the matter conducted at the spot. In any eventuality, the police officials as well as the factory workers and factory owner all confirmed and corroborated each other as to the proceedings conducted in the factory regarding measurement of the sua, sketch of the sua, sealing of the sua and preparation of site plan coupled with the photographs of the crime scene etc.

16. It is next argued that admittedly outside the factory there was possibility of presence of crowd, and therefore, how come nobody saw the accused stabbing the deceased, creates doubt. Deceased and the accused were the only best persons who could have stated the exact place where the incident took place. Deceased was no more to tell about that spot. Accused indeed as per the prosecution witnesses pointed out to a place near transformer near the factory as the place where deceased was stabbed. Because of sheer kind of weapon used and the body part selected to inflict stab wound, no blood oozed out of the body of deceased. In any eventuality, since the weapon was still there in the body, there were no chances of blood spilling over the spot, where injury was inflicted. Nobody knows whether anybody actually saw SC no.18/14 Dtd.... 27.11.2014 Page 26 of 29 27 the accused stabbing the deceased from the nearby factory workers or others. It may be a case where the accused waited for a right opportunity and the place to inflict injury. Thus, merely because no one saw the accused commit the crime cannot be a ground to acquit the accused. It may equally be possible that someone saw, but did not come forward to become witness.

17. Ld. Counsel for the accused argued that some of the witnesses admitted that there was noise of machines in the factory and therefore, dying declaration of the deceased cannot be believed. But then the prosecution witnesses categorically deposed that though there was noise in the factory but noise level was not so high that one could not hear the other. Once the deceased is seen talking to the co-workers before fainting as revealed in the CCTV footage, coupled with the testimony of co-workers that they were able to hear it, I do not find any reason to doubt the dying declaration because of running of machinery in the factory and because of the noise created from the running of machines. Similarly, the contention that no one saw weapon of offence in the hand of accused when he went out and no chance prints could be found on the weapon of offence, is not a ground to disbelieve the prosecution's case. The very act of accused in following the deceased out of the factory reveals that he had made preparation to commit the crime earlier. He must have concealed the weapon within his clothes or somewhere outside the factory. It is not uncommon that for committing such crime, people do take precautions to conceal the weapon of offence. In most of the crimes committed, weapon of offence would be concealed by an offender. Thus, merely because no one saw the SC no.18/14 Dtd.... 27.11.2014 Page 27 of 29 28 weapon with the accused is not a ground in favour of the accused.

18. In the given facts & circumstances, the prosecution proves beyond reasonable doubt that it was the accused Raju Kumar Gaur who stabbed the deceased with a sua causing his death.

19. The question which now arises is whether the act of accused falls within the definition of murder or is it culpable homicide not amounting to murder.

20. As is evident from the above discussion, the deceased was co-worker of accused. The motive for causing the injury upon deceased by the accused was because the deceased on few occasions called the accused as 'hizda'. But the fact that the accused chose an instrument such as an awl as a weapon of offence and gave only one injury upon the deceased that too on back right side of shoulder indicates that the intention of accused was not to kill the deceased. At best, it appears that the accused wanted to teach a lesson to the deceased for having called him hizda on few occasions. Had the accused really intended to kill the deceased, even with the kind of instrument he selected for assault, he could have stabbed the deceased from front side on his chest targeting his heart or he could have targeted head of the deceased or he could have targeted any other vital part of the body of deceased. The accused could also have selected more dangerous instrument for ensuring that the deceased does not survive even by chance. But the act of accused in choosing a non-vital part of the body of deceased coupled with the fact that only one stab injury was attempted and there was no repetition in assault, the part of body selected by the accused, all indicate that the accused had no intention to kill. The act of accused can also not be SC no.18/14 Dtd.... 27.11.2014 Page 28 of 29 29 called that he intended to cause such bodily injury as was likely to cause death. The act of accused rather indicates that at the most knowledge can be imputed to the accused that he was likely by such act to cause death. Thus, the act of accused falls within the definition of culpable homicide as defined in Sec. 299 of IPC but it does not get covered under any of the four Clauses of Sec. 300 of IPC. Thus the act of accused gets covered under Part-II of Sec. 304 of IPC and the accused is convicted U/s 304-II of IPC.

Announced in the open court on 27th day of November, 2014. Dig Vinay Singh Spl.Judge : NDPS/ASJ (NW) Rohini Courts/Delhi SC no.18/14 Dtd.... 27.11.2014 Page 29 of 29