Delhi District Court
State vs 1.Sanjay @ Bc on 26 April, 2019
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST-02), DELHI.
Sessions Case No. 56586/2016
Assigned to Sessions on 29.09.2014
FIR No. 494/2014
Police Station Punjabi Bagh
Under Section 302/34 IPC
Charged Under Section 302/34 IPC
State Vs 1.Sanjay @ BC
S/O Late Uma Shankar
R/o F-219, JJ Colony, Madipur,
Delhi
2. Ashok @ Kullu
S/o Sh. Veer Narayan
R/o A-23, Inder Enclave,
Nangloi, Delhi
Arguments heard on 23.04.2019
Date of Judgment 26.04.2019
Final Order Convicted
Appearance(s)Sh. Ram Pyara, Ld. Addl. PP for the State.
Sh. Pratap Singh, Ld. counsel for the accused Ashok.
Sh. Feroz Khan Ghazi, Ld. Counsel for accused Sanjay@BC.
JUDGMENT
(A) PRELUDE :
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C.
in respect of FIR No. 494/14 u/s 302/34 IPC of PS Punjabi Bagh was committed to the Ld. District & Sessions Judge (West), Delhi vide order dated 22.09.2014 of the Ld. MM.
(B) PROSECUTION VERSION:
2. The brief factual matrix as per the case of the prosecution is that :
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 1 of 49Accused Sanjay @ BC and Ashok @ Kullu were put on trial for the charges against them framed vide order dated
03.11.2014 on the allegation that they both on the night of 23.06.2012 at about 10.30 pm in front of house no. F-493, JJ Colony, Madipur, Delhi, in furtherance of their common intention committed the murder of one Manoj @ Kalwa S/o Sh. Mathura Prashad by hitting him continuously on his body and finally hitting his head with stone thereby they were charged for offence punishable under Section 302/34 IPC.
Facts arising out of the present case are that DD No. 5 PP dated 24.06.2014 was recorded in P.P Madhipur regarding quarrel at F.210, JJ Colony, Madhipur, Delhi. The said DD was marked to HC Narender for attending and proceeding as per law. Thereafter, DD No. 6PP dated 24.06.2014, PP Madhipur was also recorded at about 01.45 am stating that Dr.Sanjay Kaushik, Maharaja Agrasen Hospital, Punjabi Bagh, informed through telephone that injured Manoj aged about 26 years, R/o F-210, JJ Colony, Madhipur, Delhi, brought dead by HC Kailash Chand and he collected MLC No. 559/14 with the alleged history of physical assault and was requested to send some police officers to the hospital. The said DD was marked to Insp. Ajmer Singh through Ct. Amit to attend the same. Accordingly, Insp. Ajmer Singh alongwith Ct. Amit reached Maharaja Agrasen Hospital where SI Sandeep Vishnoi and HC Narender found present. HC Narender handed over MLC No. 559/14 to IO Insp. Ajmer Singh on which doctor declared "PT declared as brought dead" and that Insp. Ajmer Singh inspected the body in the emergency ward of SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 2 of 49 the said hospital and found blooded wounds on the face, nose and head of the deceased and deceased was wearing only underwear and rest of the body was naked. In the meantime, one person named Tariq khan who was also present in the hospital met Insp. Ajmer Singh and who claimed to be the eye witness of the incident. Accordingly, Insp. Ajmer Singh recorded the statement of Tariq Khan. Thereafter, dead body was kept in the supervision of Ct. Amit in the hospital and Insp. Ajmer Singh alongwith other police staff and eye witness Tariq Khan left for the spot i.e. in front of H No. F-493, JJ Colony, Madhipur, Delhi. At the spot, Insp. Ajmer Singh found blood lying on the surface of the road and one blood stained passport size photograph of deceased Manoj. Crime team was called at the spot who lifted the necessary photographs/finger prints. Member of crime team as well as Insp. Ajmer Singh also found a blood stained piece of stone slab and two coins of one or two rupees and IO seized the same as case property. Thereafter, on the basis of statement of Tariq Khan, Insp. Ajmer Singh prepared rukka and got the FIR registered U/S 302/34 IPC. Thereafter, IO prepared the rough sketch of site plan at the instance of eye witness Tariq Khan and also recorded the statement of members of crime team who inspected the spot. IO also lifted the blood from the surface and kept the same in a small plastic bottle and sealed the same with the seal of AS. IO also seized the earth control, blood gauge, blood stained stone and other goods and sealed with the seal of AS. Thereafter, IO also got conducted the postmortem (PM) of the deceased from Sanjay Gandhi Memorial Hospital and the body was handed over to the legal heirs of the deceased. IO also SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 3 of 49 collected the PM report in which doctor has opined the cause of death "death is due to cerebral damage as a result of blunt force/object diverted upon head. All injuries are antemortem in nature". Thereafter, IO also obtained the opinion of weapon of offence wherein it is opined "Cerebral damage is possible with stone examined or similar one".
During the investigation, at the instance of secret informer, accused Sanjay @ BC, Ashok @ Kallu were arrested from near Jheelwala Park, Madhipur. Thereafter, IO also recorded the disclosure statement of both the accused persons separately. In his disclosure statement, accused Sanjay @ BC has disclosed to the IO that accused Ashok @ Kallu is known to him as he worked with him and has further disclosed that deceased Manoj who also resided in their neighborhood used to tease his sister in his absence on visiting his house and that his sister complained about the same to him. He also disclosed that deceased Manoj used to tease his wife also in his absence and on various occasions he asked deceased Manoj @ Kalwa to mend his ways but of no avail and that on 21.06.2014 at about 01.00 am came to his house and knocked the door and wife of accused Sanjay opened the door who stated that accused Sanjay is sleeping. On this, deceased stated to his wife that he has nothing to do with accused Sanjay and he only wanted to talk to her and started using filthy language and on hearing noise, his sister Poonam also came there and deceased Manoj started using filthy language to her also. The said fact was told to him by his wife and he decided to teach a lesson to deceased Manoj and on 22.06.2014, he went to house of deceased Manoj SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 4 of 49 but he was not there and on making complaint about the conduct of deceased Manoj to his sister, she also starting taking side of deceased. Thereafter, he finally decided to teach him lesson. On 23.06.2014 at about 10.30 pm, accused Sanjay alongwith co-accused Ashok were coming after getting the refrigerator repaired and that in F-Block, in front of H No. 493, Madipur, deceased Manoj was seen and on seeing him, he asked deceased Manoj about his bad conduct with his wife and sister. On this, deceased Manoj started abusing accused Sanjay and he also got angry and started beating him and co-accused Ashok @ Kallu also assisted him in beating the deceased. He also disclosed that they gave severe beatings by fists and blows and accused Kallu hit the head of the deceased on the floor by holding the deceased with neck due to which deceased sustained severe injuries and that he himself hit the head of deceased by the piece of stone slab and in the meantime, one person named Tariq resident of their neighborhood came there and tried to pacify them but of no avail. Thereafter, they left the spot and later on came to know that deceased Manoj was declared brought dead and that they were arrested by the IO from the Jheelwala Park. IO also recorded the disclosure statement of co-accused Ashok @ Kallu who also corroborated the version given by accused Sanjay on the same lines.
Thereafter, IO recorded statement of witness under Section 161 CrPC, obtained the reports as well as collected the other relevant evidence and prepared the charge sheet U/S 173 (2) Cr.P.C., which was filed in the court for the offences u/s 302/34 IPC .
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 5 of 49(C) THE CHARGE:
3. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP and accused persons, found a prima facie case for the offence punishable under section 302/34 IPC against both the accused persons. Charge was accordingly framed to which both the accused persons pleaded not guilty and claimed trial.
(C) PROSECUTION EVIDENCE :
In order to prove its case, prosecution examined in as much as 19 witnesses.
4. PW-1 is HC Kailash Chand. He proved copy of entry in PCR Call Book Register as Ex.PW1/A and went to spot and found injured Manoj lying on the floor unconscious.
Thereafter, with the help of his family members, he took the injured Manoj to Maharaja Agrasain Hospital, Punjabi Bagh, Delhi and got admitted injured Manoj and thereafter local police reached in the hospital and he left for PS.
5. PW-2 is HC Sohan Pal MHC(M) who made entry in Malkhana Register vide entry No. 3347, copy of which is Ex.PW-2/A. He also proved on record copy of R C No. 221/21/14 as Ex.PW-2/B and road certificate as Ex.PW-2/C. Ct. Santosh Kumar had handed over him a receipt Ex.PW- 2/D after depositing the sealed pulanda in FSL, Rohini.
6. PW-3 is Ct. Rajesh, DD writer who reduced in writing DD SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 6 of 49 No.5 PP Madipur and DD No. 6PP, copies of which are Ex.PW-3/A and Ex.PW-3/B.
7. PW-4 is Ct.Jagat Singh, Photographer, Mobile Crime Team who took the photographs of the spot at the instruction of IO. He also accompanied to mortuary of Maharaja Agrasen Hospital alongwith other staff and took photographs Ex.PW-4/A1 to Ex.PW-4/A13 and he also proved on record negatives Ex.PW-4/B1 to Ex.PW-4/B13.
8. PW-5 Tariq Khan is the eye witness of this case. He has deposed that he was working as Bumper repairer at the shop at Road No.33, Shop No.2,DDA Market, Punjabi Bagh. He deposed to the effect that on 23.06.2014, at around 10.30 pm while he was going to meet his friend Naresh at F Block JJ Colony Madipur, he was present in front of 493, J. J. colony , Madi Pur, Delhi and at that time, he observed that Sanjay @ B. C and Ashok @ Deepak @ Gullu who are residents of J. J. Colony , Madi Pur were beating Manoj Kumar @ Kauwa with legs and fists. Manoj @ Kauwa was the resident of J. J. Colony, Madi Pur. He further deposed that as all said three persons were known to him, he intervened and tried to pacify Ashok and Sanjay. However, Sanjay pushed him aside and told him not to intervene and thereafter Deepak @ Kallu sat on the chest of Manoj who was lying on the road after being beaten and beat him up black and blue by striking fists and his elbow on his face and head. He made to strike his head against the pakka road. He further deposed that at that time, Sanjay was striking Manoj with his legs and he picked up a slab of stone lying nearby and struck it on SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 7 of 49 Manoj's head. Thinking him to be dead, both of them fled away, leaving Manoj in the pool of blood on the road. He was bleeding from his nose and from his forehead. Seeing the fight, several persons had gathered around but no body was coming forward for help. PW-5 further deposed that he cried himself hoarse and sought help but nobody came forward. Thereafter, he lifted Manoj in the injured condition and made him walk to his house with great difficulty after wiping the blood from his face from the handkerchief that was in his pocket. When he went to his house with him in injured condition, he found his mama Girdhari lal standing outside his house. He told him that he had been beaten up by Sanjay and Ashok. House of Manoj was behind his house in a Gali and it was F- 210, J. J. colony, Madi Pur. He further deposed that Mama of Manoj took him upstairs and thereafter he left for his home. After about 1/1.5 hours he was called up by police at the house of Manoj on telephone and he reached there. On reaching there, he came to know that Manoj had been declared brought dead at Maharaja Agarsen Hospital at Punjabi Bagh. He visited the hospital as well. On the next day i.e on 24.06.2014, at around 3 /4 a.m. he was called at the PS and his statement Ex.PW 5/A was recorded. He told the police that Manoj had died on account of the beatings given by both the accused persons namely Sanjay and Ashok and identified them in the Court. He had told the police the place of incident and police prepared the site plan. He accompanied the police to the spot from where police lifted the blood stained earth, passport size photo of Manoj, two coins and broken stone slab which the IO seized vide different seizure memos which are three in number. IO SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 8 of 49 converted all the said things into three different pullandas and sealed them up. However, he could not tell the impression of the said seal and signed on all the seizure memos. Seizure memo of the blood stained earth which the IO seized after putting it in a plastic dibbi duly sealed is Ex.PW 5/B. Seizure memo of the earth control which IO seized after putting it in a plastic dibbi duly sealed is Ex.PW-5/C. IO took the blood on a piece of gauze. Seizure memo of the blood gauze which the IO seized after putting it in a plastic dibbi is Ex.PW 5/D. Seizure memo of the piece of stone slab used for hitting the deceased which the IO seized after putting it in a plastic dibbi duly sealed is Ex.PW 5/E. Seizure memo of the passport size photo of the deceased Manoj, one coin of one rupee and one coin of two rupee lying at the spot which IO seized after putting all of them in an envelope duly sealed is Ex.PW-5/F. He further deposed that IO has recorded his statement to this effect and he identified the case property.
9. PW-6 Smt. Beena, sister of deceased deposed to the effect that in the intervening night of 23/24.06.2014, she received information from her sister Neelam that her brother Manoj had received injuries. She reached at her parental house and from there she alongwith her sister Neelam reached SGM Hospital Mortuary where she came to know that her brother Manoj had died. She identified the dead body of her brother Manoj vide Ex.PW-6/A. She further deposed that postmortem was conducted on the dead body of her brother and they had received dead body of deceased Manoj vide receipt Ex.PW-6/B. SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 9 of 49
10. PW-7 Ms.Neelam, sister of deceased deposed to the effect that on 23.06.2014 at about 11.00 pm Tariq Khan and her mama Ghirdhari Lal brought her brother deceased Manoj to their house. She deposed that deceased Manoj was in injured condition and Tariq Khan told her that Sanjay @ B.C and Ashok @ Kullu had given beatings to Manoj and caused injuries to him. Then she talked with Doctor Ansari who was residing in their neighbourhood on telephone, he advised her to call on 100 number. Thereafter, she called the police at 100 number. Police reached at their house. Police took her injured brother Manoj to Maharaja Agarsan Hospital. She also accompanied her brother to the hospital in PCR van. Doctors at Maharaja Agarsan Hospital medically examined her brother Manoj and declared him brought dead. Thereafter, the police came to her house. She handed over blood stained clothes of her deceased brother which he was wearing at the time of incident, to the police. Police seized the same vide seizure memo Ex. PW-7/A. Prior to the said incident, on 22.06.2014 accused Sanjay @ B.C in the late night came to her house. He told that her brother Manoj had misbehaved with his sister. She told him that her brother could not do such act as he always busy in his work as Driver and a good person. But accused Sanjay @ B.C threatened her that, "mein uska (manoj) kaam taamam kar dunga". He further threatened that he would kill her brother Manoj wherever he (Sanjay @ B.C) finds him. At that time, her sister Rekha was also present in the house.
11. PW-8 Sh. Girdhari Lal, uncle (mama) of deceased deposed to the effect that in the intervening night of SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 10 of 49 23/24.06.2014 at about 10.30 / 11.00 pm he was standing in front of his house. Tariq Khan had brought the injured Manoj to the house. Tariq Khan told him that Sanjay @ B.C and his friend had given beatings to Manoj and caused injuries to him. He took injured Manoj in the house at F- 210, third floor. Blood was oozing out from his mouth and nose. Manoj who was in a very serious condition was able to tell him that Sanjay @ B.C and his friend had caused injuries to him. Sister of Manoj namely Neelam called the doctor Mr. Ansari who advised her to call the police. Thereafter, Neelam called the police. Police reached at the house and took Manoj to the Maharaja Agarsan Hospital, Punjabi Bagh.
12. PW-9 ASI Om Prakash, Assistant Draftsman deposed to the effect that on the request of IO Insp.Ajmer Singh, he reached to PP Madipur and thereafter he alongwith IO reached at the spot where complainant Tariq Khan also met them. He took measurement and prepared rough notes of the spot at the instance of complainant and on that basis prepared site plan Ex.PW-9/A in his office and handed over to IO.
13. PW-10 Sh.Om Prakash deposed to the effect that on 24.06.2014, he had gone to mortuary at SGM Hospital and identified the dead body of his nephew Manoj in the presence of IO and IO had recorded his statement in this regard which is Ex.PW-10/A.
14. PW-11, Ms. Rekha deposed to the effect that her in laws house is situated in Ludhiana, Punjab. She had came SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 11 of 49 to Delhi at her parents house mentioned above from Ludhiana about two months prior to the present incident. On 23.06.2014, she was present at her parents house mentioned above. At about 11 PM, Tariq Khan who was residing in the gali behind to the house of her parents, came to the above mentioned house along with her brother Manoj. She further deposed that her brother Manoj was in injured condition and blood was oozing from his mouth and head. On inquiry Tariq Khan told her that one person namely Sanjay B.C. and Ashok @ Kullu had caused injuries to him. She further deposed that no one except Tariq came with her brother and also told her that the above mentioned persons namely Sanjay B.C. and Ashok @ Kullu after causing injuries to Manoj had left the spot leaving Manoj in injured condition (Adhmara). Thereafter, her sister Neelam had gone to call nearby Dr. Ansari who told her that it is a police case. So he cannot attend Manoj in such circumstances. She had made a phone call at no. 100 prior to the time when her sister had gone to Doctor. After visiting Dr. Ansari her sister also told her that she had also made a phone call at number 100. PCR van reached at the her house who removed her brother to Maharaja Aggarsain Hospital. After examining her brother, doctor declared him as brought dead. Pw-11 further deposed that on 22.06.2014 at about 9-10 PM accused Sanjay @ BC had came to her house in her presence and threated to kill her brother Manoj as he is having caveatted eye (boori nazar) on his sister and wife and also used to stalk (chched chaad) her. She further deposed that the accused also exhorted that he will finish her brother Manoj (uska kaam tamam kar dunga). When accused had threatened them her sister SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 12 of 49 Neelam was also present there and police had recorded her statement in this case.
15. PW-12 ASI Narender Kumar deposed to the effect that on 24.06.2014, he was posted at police post Madipur, PS Punjabi Bagh as Head Constable. On that day, on the receipt of DD no. 5PP, already Ex. PW3/A, regarding a quarrel at F-210, JJ colony, Madipur, Delhi, he arrived at the spot where he came to know that victim Manoj Kumar was removed to some unknown hospital by the PCR Van. Later, he came to know that victim was taken to Maharaja Aggarsain Hospital. Then he went to Maharaja Aggarsain Hospital where he came to know that victim has already been dead, thereafter, he obtained the MLC of deceased bearing no. 559/14. Thereafter, Insp. Ajmer Singh reached at Maharaja Aggarsain Hospital. He handed over the MLC of the deceased to Insp. Ajmer Singh. Thereafter, Insp. Ajmer Singh inspected the dead body in his presence. In the meantime, one person whose name was came to know Tariq Khan met them. He apprised Insp. Ajmer Singh about the cause of incident and have stated that quarrel took place between deceased and accused Sanjay and Ashok. Insp. Ajmer Singh recorded the statement of Tariq Khan and prepared the rukka and handed over the same to him with the direction to get the FIR registered from PS. Accordingly, as per direction of Insp. Ajmer Singh he went to PS Punjabi Bagh. he handed over the rukka to the Duty officer. Duty officer after registration of the FIR handed over the original rukka and copy of FIR with the direction to hand over the same to Insp. Ajmer Singh as the investigation was handed over to him. Accordingly, he went to premises no. F-210, JJ SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 13 of 49 colony, Madipur, Delhi (spot of the occurrence) where he handed over the rukka and copy of FIR to Insp. Ajmer Singh. Thereafter, IO conducted the investigation pertaining to this case. From the spot they again went to Maharaja Aggarsain Hospital along with the IO and family members of the deceased. From the hospital dead body of the deceased was obtained and taken to the Sanjay Gandhi Memorial Hospital Mortuary, where inquest and postmortem (PM) of the dead body was got conducted. After the PM the dead body was handed over to the family members of the deceased vide memo Ex. PW6/B. From the hospital they went to the house of accused Sanjay BC i.e. premises no. F-219, JJ colony, Madipur, Delhi in the search of both accused where both the accused were found absconding. They arrived at Dussehra ground in the search of accused persons, where the secret informer informed that accused persons are sitting in Jheel wala park. We went to the said park and apprehended both accused persons at the instance of secret informer. IO interrogated both accused persons and thereafter accused Sanjay was arrested vide arrest memos Ex.PW12/A. Accused Ashok Kumar was arrested vide arrest memos Ex. PW12/B. PW-12 further identified both the accused persons and deposed that he also conducted the personal search of both accused persons. The personal search memo of accused Ashok Kumar is Ex. PW12/C and personal search memo of accused Sanjay is Ex. PW12/D. From the personal search of accused Sanjay one ID card and mobile phone were found. From personal search memo of accused Ashok Kumar nothing was found. The disclosure statement of accused persons were recorded. He further deposed that the disclosure SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 14 of 49 statement of accused Ashok Kumar @ Kullu is Ex. PW12/E and the disclosure statement of accused Sanjay is Ex. PW12/F. Both accused were taken to F-493, JJ Colony, Madipur, Delhi where the accused pointed out the place of occurrence which is a "chabutra". He further deposed that the pointing out memo of accused Ashok @Kullu is Ex. PW12/G and pointing out memo of accused Sanjay is Ex. PW12/H. PW-12 further deposed that accused were brought to the police post Madipur where the clothes of both the accused were seized and prepared pullanda and sealed with the seal of AS. The seizure memo of clothes of accused Ashok @ Kullu is Ex. PW12/I and seizure memo of clothes of accused Sanjay is Ex. PW12/J. Both the accused were medically examined at Sanjay Gandhi Memorial Hospital. Accused were put in the lock up and case property was deposited in the malkhana.
16. PW-13 SI Sandeep Bishnoi deposed that on the night intervening 23-24.04.2016, he was posted at PS Punjabi Bagh and was looking after the work of Incharge, PP Madhipur. After receiving information regarding the fact of DD No. 6PP Madhipur from DO, he reached in Maharaja Agarsen Hospital where he found SI Narender, Ct. Amit and Insp. Ajmer Singh, the then SHO, PS Punjabi Bagh with staff already present there alongwith family members of deceased Manoj. He further deposed that thereafter IO recorded statement of Tariq Khan, eye witness of incident and prepared rukka on the same and handed over to HC Narender for registration of case who left the spot with the same for PS Punjabi Bagh. IO deputed Ct. Amit to guard the dead body of deceased in the hospital and thereafter he SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 15 of 49 alongwith IO and staff and family members reached at the spot. He further deposed that the Crime Team reached the spot which inspected the spot and took photographs of the spot. IO prepared site plan of the spot at the instance of complainant in his presence which is Ex.PW-13/A. PW-13 further deposed that thereafter HC Narender reached the spot with original Rukka and copy of FIR and handed over to IO. He further deposed that thereafter IO lifted earth control without blood from the spot in his presence and same was kept in small plastic Dibbi and was sealed in a pulanda with seal of AS and taken into possession vide seizure memo Ex.PW-5/C. Similarly, IO seized other case property from the spot.
17. He further deposed that Ms. Neelam, sister of deceased had handed over clothes of the deceased which was also taken into possession vide seizure memos. IO also lifted one passport size photo of deceased Manoj having blood stains on it, one coin of one rupee and one coin of two rupee from the spot. He also identified the case property i.e. from Parcel No. 1 to Parcel No.8.
18. PW-14 is HC Santosh Kumar who deposed that on 16.07.14, he was posted at PS Punjabi Bagh and HC Sohal Pal MHC(M) had handed over exhibits pertaining to this case i.e. 10 pulandas and two sample seals and he deposited the same to FSL Rohini vide acknowledgement Ex.PW-2/D
19. PW-15 Dr. Munish Wadhawan deposed that he handed over the PM report to IO alongwith 13 inquest papers, SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 16 of 49 sealed blood sample in gauge piece, sealed clothes and sample seal of department. Cause of death in his opinion was cerebral damage as a result of blunt force/object diverted upon head. All injuries were antemortem in nature. In this regard, his report (running in 4 pages) is Ex.PW-15/A (Colly). He further deposed that on 04.07.2014, Insp. Ajmer Singh moved an application for subsequent opinion regarding the weapon of offence alongwith sealed white parcel duly sealed with seal of AS, seals were intact. On opening the parcel, red colour stone came out. After going through PM No. 585/14 and examining the said weapon of offence, he opined that cerebral damage is possible with the stone examined or similar one. His detailed opinion in this regard is Ex.PW-15/B. Thereafter, he identified the case property Ex.P-4 which was sent by the IO for subsequent opinion. He further deposed that he identified a white plastic Jar upon which a slip was pasted with white label showing the identification details and his signatures. Jar was opened and it contained brown colour underwear and was taken out and shown to the witness who correctly identified the same which was handed over to IO. Same is Ex.PW-15/X.
20. PW-16 Dr. Sanjay Kaushik deposed that on 24.06.14, he was on duty in Maharaja Agrasen Hospital and at about 01.30 am, one patient Manoj was brought to the casualty by PCR official Kailash Chand with alleged history of physical assault. On examination, patient was declared brought dead. In this regard, he prepared MLC No. 559/14 vide Ex.PW-16/A. SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 17 of 49
21. PW-17 SI Devender Singh deposed that on 26.04.14, he was posted with Mobile Crime Team in West District as Incharge. On that day at about 03.00 am, he received an information about the incident from District Control Room on wireless set. On receiving the information, he alongwith photographer Ct.Jagat and HC Lalit went to the spot by Government Vehicle where HC Narender was found alongwith other police officials from PS Punjabi Bagh.
22. He further deposed that thereafter at the instance of HC Narender, he inspected the spot and on his direction, Ct. Jagat took photographs of the spot from different angles and HC Lalit tried to take chance prints but in vain. In regard to inspecting the spot, he prepared scene of crime report Ex.PW-17/A. He also noticed blood at different places, blood stained stone, one photograph of deceased and two coins out of which one was Rs.1 and one Rs.2. He further deposed that thereafter Insp. Ajmer Singh also reached the spot and advised him to lift the above mentioned exhibits from the spot.
23. PW-18 Ct. Amit Kumar Sharma deposed that on 26.04.14, he was posted in PP Madipur in PS Punjabi Bagh. DD No. 6 PP was marked to him through telephone by the duty officer of PS Punjabi Bagh. In the meantime, HC Narender also reached in the PP Madipur and he apprised him about receiving of the said DD. Thereafter, they both went to Maharaja Agrasen Hospital where patient (deceased) Manoj and his family members were found present. HC Narender got the MLC of the patient in which SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 18 of 49 he was declared brought dead. He further deposed that HC Narender inspected the body. During that time, Inspector Ajmer Singh also reached in the hospital. HC Narender apprised him all the facts of the case as well as MLC of the deceased. One person namely Tariq was also present. Inspector Ajmer Singh made enquiries from him and recorded his statement and also prepared rukka on the said statement and handed over the same to HC Narender with the direction to get the FIR registered in PS Punjabi Bagh. Dead body was kept in his supervision as directed by Inspector Ajmer Singh. On the direction of the IO, he took the dead body of deceased to Sanjay Gandhi Memorial hospital for postmortem. Simultaneously, Inspector Ajmer Singh also reached SGM hospital. Inspector Ajmer Singh prepared the inquest papers. The postmortem over the dead body of deceased Manoj was got conducted and thereafter, his dead body was handed over to his relatives.
24. He further deposed that thereafter from SGM hospital, he alongwith HC Narender and Insp. Ajmer Singh returned at the spot in the search of accused persons and they went to the house of accused persons but they were not found there. Thereafter, they went to Dussehera ground in search of the accused persons. In the meantime, one secret informer informed HC Narender about the presence of accused persons at Jheel Wala Park. Thereafter, they all alongwith secret informer went to Jheel Wala Park. While they were waiting at the park, after sometime, two persons were noticed by the secret informer while roaming in the park and he pointed out HC Narender that these two SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 19 of 49 persons are the accused to whom they were searching. Thereafter, he and HC Narender at the instance of Inspector Ajmer Singh apprehended both the accused persons.
25. He further deposed that they took both the accused persons to PP Madipur and arrested and personal search was conducted by HC Narender vide memos already Ex.PW12/A to Ex.PW12/D. Disclosure statements of both the accused persons were also recorded by IO in the PP. Thereafter, both the accused persons were taken to PS Punjabi Bagh. At their pointing out, IO also prepared the pointing out memo already Ex.PW12/G and Ex.PW12/H. He further deposed that the dead body of the deceased was identified in his presence by the family members. The identification memo are Ex.PW6/A, Ex.PW10/A and Ex.PW18/A. He further deposed that after the postmortem, dead body was handed over to the family members vide memo already Ex.PW6/B.
26. PW-19 Insp. Ajmer Singh deposed that on the night intervening 23/24.06.2014, he was posted as Inspector, ATO at PS Punjabi Bagh and was on patrolling duty. At about 01.50 am, while he was present near Madipur Metro Station on his official duty vehicle bearing registration no. DL1CJ5794 driven by HC Paras Ram, Ct. Amit met him there and he handed over copy of DD No. 6, PP Madipur. Thereafter, he alongwith his staff and Ct. Amit reached at Maharaja Agrasen Hospital, Punjabi Bagh where he found SI Sandeep Bishnoi and HC Narender already present there.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 20 of 49He further deposed that HC Narender handed over MLC of Manoj S/o Mathura Prasad. In the MLC, doctor had declared patient Manoj as brought dead. He had apparently inspected the dead body of deceased which was lying in the emergency ward. He noticed the injury marks on the visible portion of the body and deceased was wearing only underwear and rest of the body portion was naked. After the inspection of the body, he found one person named Tariq Khan who claimed himself to be eye witness of the incident. He made inquiries from him and thereafter he recorded his statement. He further deposed that thereafter, they all proceeded to the spot i.e. near house no. F-493, JJ Colony, Madipur while Ct. Amit was directed to be remained in the hospital for supervision of the dead body. He noticed blood lying on the spot. He also found passport sized photograph of deceased lying there. One blood stained stone slab piece and two coins in denomination of Rs.1 and Rs.2 were also lying there. He also called mobile crime team at the spot who inspected the spot and photographer took photograph of the spot. Incharge, Crime Team handed over inspection report to him. Thereafter, he prepared rukka Ex.PW-19/A and the same was sent to PS through HC Narender for the registration of the case. He recorded the statement of Crime Team Officers. He further deposed that thereafter, he prepared site plan of the spot at the instance of complainant Tariq Khan. In the meantime, HC Narender reached at the spot and he handed over original Rukka and copy of FIR to him. He lifted blood stained earth control from the spot and the same was kept in a small plastic jar and was sealed in a pulanda with the seal of AS and was SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 21 of 49 taken into possession vide seizure memo already Ex.PW- 5/B. He also lifted earth control without blood from the spot and same was kept in a small plastic jar and was sealed in a pulanda with the seal of AS and was taken into possession vide seizure memo already Ex.PW-5/C. He also lifted blood from the spot with the help of gauge piece and same was kept in a small plastic jar and was sealed in a pulanda with the seal of AS and was taken into possession. He also lifted blood stained stone slab piece and the same was sealed in a pulanda with the seal of AS and was taken into possession. He also took into possession passport sized photograph with two coins mentioned above and these were kept in an envelope and the same was sealed with the seal of AS and was taken into possession. Thereafter, he went to house no. F-210, JJ Colony, Madipur, where Ms.Neelam D/o Sh. Mathura Prasad and sister of deceased handed over one blood stained shirt of brown and white colour checkdar full sleeve, one blood stained pant and one blood stained banyan stating that these clothes were worn by deceased at the time of incident. The said clothes were sealed and thereafater seized by him. Thereafter, he came back to police station. Case property was deposited by him in the Malkhana. He further deposed that thereafter, he went to Sanjay Gandhi Hospital mortuary, Mangolpuri, as the dead body of deceased had already been shifted there through Ct. Amit. The dead body of deceased was identified by Smt. Beena, Om Prakash and Neelam, family members of the deceased and he had recorded their statements in this regard vide Ex.PW-6/A, Ex.PW-10/A and Ex.PW-18/A respectively. Thereafter, he moved application Ex.PW-19/B to autopsy surgeon to SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 22 of 49 conduct postmortem on the body of deceased. He also prepared brief facts Ex.PW-19/C. Thereafter, the postmortem on the body of deceased was conducted and after the postmortem, dead body of deceased was handed over to his family members mentioned above vide receipt already Ex.PW-6/B. He has further deposed that after the postmortem, Ct. Amit Kumar handed over two sealed parcels sealed with the seal of SGMH Mortuary, Mangolpuri, Delhi-83 and one sample seal to him and the same was taken into possession by him vide seizure memo Ex.PW- 19/D. Thereafter, he came back to police station and case property was deposited by him in the Malkhana. He recorded the statements of witnesses. Thereafter, he searched for the accused persons. On the same day, when he was present with his staff near Ramlila Ground, Punjabi Bagh where one secret informer met him there who informed him that the boys wanted in the present case were seen by him in Jhilwala Park, Madipur Village and if raid is conducted, they can be apprehended from there. Thereafter, he alongwith his staff and informer reached at Jhilwala Park, Madipur. While on the way, he asked some passersby to join the investigation after apprising them about the information given by the secret informer but none agreed to join and left the place without disclosing their names and addresses. After reaching at Jhilwala Park, both the accused persons were apprehended by him and his staff on the pointing out of secret informer and arrested by him and their personal search were conducted. He also recorded their disclosure statements. Thereafter, both of them led to the place of occurrence and pointed out the place of occurrence. There, he prepared pointing out SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 23 of 49 memos at their instance. At the time of arrest, both of them were wearing blood stained clothes. After their arrest, they were brought to PP Madipur where they were provided alternative clothes provided by their family members. Thereafter, both of them had voluntarily removed their wearing clothes after changing with the alternative clothes. He further deposed that wearing clothes of accused Sanjay @ BC i.e. one pant of Coffee Colour and one shirt of Bangeni Colour, both blood stained, were sealed by him in a pulanda with the seal of AS and was taken into possession. Similarly, clothes worn by accused Ashok i.e one jeans pant of light blue Colour and one full sleeves T- shirt of Coffee Colour, both blood stained, were sealed by him in a pulanda with the seal of AS and was taken into possession. Thereafter, both of them were kept in the lockup and the case property was also deposited in the Malkhana of PS Punjabi Bagh. He further deposed that on 25.06.2014, both the accused were produced in the Court of Ld MM and thereafter, at his written request, both of them were sent to Judicial Custody (JC) by Ld MM.
27. He further deposed that during the course of investigation, on 04.07.2014, he moved application to CMO, SGM Hospital, Mangolpuri mortuary, Delhi to provide the subsequent opinion regarding the weapon of offence. His said request is Ex.PW-19/E. On that day, he received one sealed parcel sealed with the seal of AS from MHC(M) PS Punjabi Bagh containing the weapon of offence i.e. stone slab piece and took the same to autopsy surgeon at SGM Mangolpuri Mortuary. On his request, doctor examined SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 24 of 49 the weapon of offence and gave subsequent opinion. The pulanda was sealed with the seal of SGM Mortuary, Mangolpuri. Thereafter, he reached at PS Punjabi Bagh. Case property was deposited in the Malkhana. He further deposed that during the course of investigation, he called draftsman HC Om Prakash who took measurement and prepared rough notes after visiting at the spot on the basis of which he prepared scaled site plan and he handed over the same to him during the course of investigation and he placed the same on record. He recorded the statement of witnesses in the present case time to time. So long as the case property remained in his possession, the same was not tampered with in any way. During the course of investigation, case property was got deposited in FSL Rohini. Thereafter, he completed the investigation and prepared charge sheet. The same was filed in the Court for Judicial Verdict. During the course of trial, he collected the FSL report from PS Punjabi Bagh and filed the same in the Court. PW-19 Insp. Ajmer Singh also identified all the case property and got exhibited clothes of both of the accused persons.
28. After conclusion of prosecution evidence, statement of both the accused persons under Section 313 Cr.P.C. were recorded wherein both the accused persons have taken the plea of false implication in the present case. In support of their defence, both accused persons examined one witness.
29. DW-1 is the wife of accused Sanjay@ B.C. She deposed SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 25 of 49 that PW-5 Tariq Khan has deposed against accused Sanjay in this case due to having enmity with accused and herself. Prior to registration of this case, her husband Sanjay @ BC and PW-5 Tariq Khan were good friends and that is why she knows him personally. About 8 months prior to registration of this case, PW-5 Tariq Khan was arrested in some case and the family members of Tariq Khan came to her house and requested her husband to give surety so that Tariq Khan could be released on bail but as she was not happy with the conduct of Tariq Khan, she asked her husband, accused not to stand surety for Tariq Khan. When Tariq Khan was released on bail, he came to her house and extended threat stating that he would teach a lesson to them in future as they had refused to stand surety for him. He also used abusive language to accused. Seeking opportunity of his enmity with her husband, he stood witness in this case and falsely deposed against her husband to satisfy his grudge. His evidence is false. She further deposed that after the arrest of accused Sanjay in this case, PW-5 Tariq Khan visited her house on various occasions and demanded money to become hostile during trial and that he could save accused Sanjay from the clutches of law but she refused his demands stating that she was too poor and was not having money to satisfy his demands. When she refused to give money, he pressurized her to talk to accused Sanjay and at one occasion, he alongwith her went to Jail No.1, Tihar Jail and during meeting with accused, he demanded money. Accused Sanjay also showed inability to pay any consideration to Tariq Khan due to poor financial condition. She has also filed on record the copy of application to Supdt Jail to issue SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 26 of 49 print of CCTV Footage of the meeting of Ms. Poonam and Tariq Khan on 07.10.14 in Jail No.1 alongwith print of CCTV footage in two papers filed. Same is Mark DW-1/X (Colly 3 sheets). She further deposed that even thereafter, Tariq Khan continuously insisted her to pay some consideration to give evidence in support of accused Sanjay in the Court but she did not concede to his request. She further deposed that on various occasions, Tariq Khan alongwith his notorious friends came to her house to threaten her to give consideration. When she became fed up with the insistence of Tariq Khan to demand consideration, she finally lodged complaint at PP Madipur, copy of same is Mark DW-1/X1. Police called him and he was admonished in the police post by the police. Thereafter, PW-5 Tariq Khan deposed falsely against accused Sanjay, her husband to satisfy his grudge.
30. DW-2 is Naresh Kumar Shah, Head Warden, Jail No.1, Tihar. He has produced record pertaining to mulakat details of two persons namely Smt Poonam and Sh Tariq Khan with UTP Sanjay @ BC on 07.10.2014. He has proved the attested computer generated Mulakat Slip as Ex.DW2/A.
31. DW-3 is WHC Suman, PS Begampur, Delhi. She has deposed that on 17.05.2015 she received a complaint vide DD No. 23 PP regarding harassment by some unknown person through one Sh Tariq Khan by Ms. Poonam. The said DD is proved by her as Ex.DW3/A.
32. DW-4 is the father of accused Ashok. He deposed that his son, accused Ashok was learning the work of AC SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 27 of 49 mechanic with accused Sanjay @ BC one month prior to registration of present case. Accused Ashok used to leave home with him in the morning at about 10.00 am and came back to home in the evening alongwith him at about 07.00- 07.30 pm. He further deposed that on 23.06.2014 at about 07.00-07.30 pm, he and accused Ashok came back to their house. On 24.06.2014, in the morning at about 07.30 am, he received a call from PS Punjabi Bagh from one Police Inspector who inquired about accused Ashok. When he asked him the reason, he stated that he has done some quarrel and also asked him to bring him to the PP Madipur. Accordingly, at about 11.00 am, he took his son, accused Ashok to PP Madipur. In PP Madipur, accused Ashok was apprehended by the police. When he asked the reason of apprehension, police officer stated to him that the person with whom accused Ashok has done quarrel has expired. He requested the police officer in the PP that his son had not done anything wrong. On this, police officer admonished him and also threatened him to falsely implicate in this case and he was asked to leave the PP and his son was falsely arrested in this case. He further deposed that his son is implicated in this case at the instance of witness Tariq Khan as he was having enmity with co-accused Sanjay @ BC.
REASONS AND DECISION.
33. I have heard the Ld Addl P.P for the State and Ld Counsels for both the accused. I have given my thoughtful consideration to the submissions being made by them and I also perused the record carefully.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 28 of 4934. Ld Defence Counsels have vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. It is argued that there is not an iota of evidence available on record to connect the accused persons with the instant case.
Arguments Advanced on behalf of accused Ashok
35. It is argued that there was delay of about two and a half hours in lodging the FIR. As per the prosecution story, the alleged incident took place at around 10.30 pm, whereas the call to police was made at around 1.00 am. This delay has not been explained during evidence of PW-7 which raises doubt on the prosecution story.
36. It is further argued that neither Radhika (wife of deceased Manoj) nor Deepak (bhanja of deceased Manoj) were examined by the prosecution as a witness in this case though it is the case of the prosecution that both were present when deceased Manoj was taken in injured condition to his house. It further creates doubt on the prosecution version.
37. It is further argued that both PW-8 Girdhari Lal and PW-11 Rekha have been introduced as a witness merely to fill up the gaps in the prosecution story.
38. It is further argued that PW-1 in his cross examination has stated that no relative came in the hospital, whereas PW-5 Tariq Khan has deposed that he had visited the SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 29 of 49 hospital. This is a contradiction in their testimonies and hence, their testimonies cannot be relied.
39. It is further argued that no blood spot is visible in the photographs taken at the spot which further negates the story of the prosecution.
40. Another argument raised is that PW-5 in his testimony has deposed that the body of deceased bore blue black marks because of beatings given by both the accused, however, no such observation has been made in the PM report which contradicts the version of PW-5.
41. It is further argued that PW-5 Tariq Khan is a planted witness. In his cross examination, he has deposed that he had used the handkerchief of deceased in wiping the blood and after use, kept it in his pocket, however, same was not seized by the IO. That handkerchief was a material piece of evidence which was not seized by the IO as no such incident had taken place and it was a concocted story.
42. Another argument raised that as per PW-5 Tariq Khan, he had taken the deceased Manoj to his house in his hands, however, his clothes did not get any blood stain which is not possible in view of the allegations that blood was coming from the deceased's body.
43. Another contradiction pointed out by Ld. Defence Counsel is that PW-7 in her testimony has stated that both PW-8 Girdhari Lal and PW-5 Tariq Khan took the deceased Manoj upstairs in his house, however, PW-5 has deposed SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 30 of 49 that after bringing the deceased Manoj to his house, he had left for his home.
44. It is further argued that Dr. Ansari has not been cited as a witness to corroborate the version of PW-7 that she had visited Dr. Ansari regarding deceased Manoj. He was a material witness, however, not even cited as a witness for the reasons best known to the prosecution.
45. Another lacuna in the prosecution story as pointed out by Ld. Defence Counsel is that the bed sheet on which deceased Manoj was made to lie, has not been seized by the IO which was a material piece of evidence.
46. It is further argued that statement of none of the persons who were present in the hospital with deceased Manoj was recorded by the police.
47. It is further argued that there are many contradictions in the testimonies of PW-18 Ct. Amit and PW-19 Inspector Ajmer Singh. Whereas PW-18 has deposed that on receiving DD no. 6 PP through telephone, he alongwith HC Narender went to Maharaja Agrasen Hospital, PW-19 Inspector Ajmer Singh has deposed that PW-18 Ct. Amit met him near Madipur Metro station and handed over copy of DD No. 6 PP Madipur and thereafter, he alongwith his staff and Ct. Amit reached at Maharaja Agrasen Hospital.
48. In order to substantiate his arguments, Ld. Counsel for accused Ashok has relied on case law titled as Dharmendra & Anr. Vs. State of Maharashtra, Crl.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 31 of 49Appeal No. 646/2010 passed by Hon'ble Supreme Court of India and Satish @ Chattish @ Ors. Vs. Sttae of U.P., Crl. Appeal No. 524/2006 passed by Allahabad High Court.
Arguments Raised on behalf of accused Sanjay @ B.C.
49. It is argued that no enquiry was made from any public person except the relatives of deceased and PW-5 Tariq Khan, though as per the prosecution story, there were many public persons present at the spot. It raises serious doubt on the investigation conducted by the IO.
50. Another contradiction raised is that PW-5 Tariq Khan has stated that his statement was recorded in PS, whereas PW-19 IO Inspector Ajmer Singh has deposed that statement of PW-5 was recorded by him in the Maharaja Agrasen Hospital. This contradiction is a material contradiction as the statement of PW-5 is the basis for registration of present FIR and hence, goes to the root of this case.
51. It is further argued that there are major improvements in the testimonies of prosecution witnesses and hence same are full of doubts whereas the defence evidence produced on record appears more probable as same is supported by jail record. Further, the complaint made by the wife/DW-1 of accused Sanjay to the effect that she was being pressurized by PW-5 and proved as Ex.DW3/A also supports the theory that PW-5 is a motivated witness who had even met the accused Sanjay @BC for money and when he was refused any money, he deposed against him.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 32 of 4952. To substantiate his arguments, Ld. Counsel for accused Sanjay @ BC has relied on following case laws:
(i) Sushil Kumar Vs. State Govt NCT of Delhi, MANU/DE/1699/2014,
(ii) Mahender Pratap Singh Vs. State of U.P, MANU/SC/0279/2009,
(iii) Kali Ram Vs State of Himachal Pradesh, MANU/SC/0121/1973,
(iv) Munshi Prasad Vs. State of Bihar, MANU/SC/0625/2001.
53. While opposing the arguments of the accused persons, Ld Addl PP for the State has argued that all the PWs examined by the prosecution has firmly stood the test of cross examination and have been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of PWs.
54. I have given a thoughtful consideration to the record and the arguments advanced as well as the case laws relied by accused persons.
55. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 33 of 49 the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. 1997 (3) Crimes 55 titled Sadhu Singh Vs State of Punjab.
56. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof"
is an exercise particular to each case..... Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."
57. Before adverting to the analysis of evidence which has come on record it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
58. In the instant case, the accused persons have been charged with the offence u/s 302 IPC.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 34 of 4959. The court shall firstly deal with the essential ingredients which prosecution is required to prove in order to establish the charge against the accused.
60. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for a inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on (1997) 2 Crimes 78 titled Narsingh Challan Vs. State of Orissa.
61. When a death is caused by injuries, the case either SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 35 of 49 covered within the purview of section 300, firstly, where the act is caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasize in later case is on sufficiency of injuries inflicted. This sufficiency is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
62. Further pertinent to mention here that in cases like death / murder, generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an inference drawn from proved facts. Now, this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The law regarding the nature and character of proof of circumstantial evidence has been SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 36 of 49 settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.. it must be such as to show that within all human probability the act must have been done by the accused."
63. This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should fully established.
2) the facts so established should be consistently only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 37 of 49 hypothesis except that the accused is guilty.
3) the circumstances should be of a conclusive nature and tendency.
4) they should exclude every possible hypothesis except that one to be proved and.
5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
64. The two basic ingredients necessary for proving a case u/s 302 IPC are the intention to commit offence (mens rea) and the act done to execute that intention (actus reas). For better appreciation of the case at hand, Sec. 300 IPC which provides the definition of murder is reproduced as under:
"300.Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly, -if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.-if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 38 of 49 to cause death, or-
Fourthly.-if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid."
65. Now, I shall proceed to deal with the arguments raised by defence in the light of section 300 IPC.
66. As regards the argument of defence that there was delay in lodging the FIR, the Ld. State Counsel has explained that the said delay was caused as the injured/deceased was first provided medical aid and in that process, the time was taken. Also, at the time, none of the family members of the deceased had anticipated that deceased would die and were not intending to report the matter. It was only subsequent to his death that they lodged the matter. Therefore, the delay in lodging the FIR is explained and same cannot be read in favour of the accused persons.
67. Another argument of the defence is that PW-8 Girdhari Lal and PW-11 Rekha have been introduced as a link witness to support the prosecution story. Perusal of their testimonies in no manner indicate that they are link witnesses, rather their testimonies appear quite natural and even during their cross examination, they have firmly stood the test and their testimonies remain unimpeached.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 39 of 49Therefore, the argument of defence is not sustainable.
68. As regards the non examination of Dr. Ansari as a witness, it is stated by Ld. State Counsel that same is not fatal to the case of the prosecution. I am in agreement with his submissions. Dr. Ansari has no role in the present case except that PW-7 Neelam had consulted him over telephone regarding the condition of deceased Manoj who advised her to call 100 no. Hence, non examination of this witness does not make any difference and does not in any manner favour the accused.
69. As regards the argument of defence that PW-5 did not get any blood stains on his clothes while helping the deceased, the testimony of PW-5 Tariq Khan is very relevant. In his testimony, he has deposed that he lifted Manoj in the injured condition and made him walk to his house with great difficulty after wiping the blood from his face from the handkerchief that was in his pocket. Even in his cross examination, PW-5 has categorically deposed that his clothes were not got blood stained when he lifted Manoj in injured condition and made him walk to his house. Furthermore, PW-7 Neelam has also affirmed this fact when she stated that she did not see blood on Tarik Khan's clothes. Also, it is not the case of the prosecution that PW-5 lifted the deceased and took him in his lap to his house. He has categorically deposed that he had wiped his blood from his handkerchief. Therefore, the argument of defence does not shake the prosecution story at all.
70. Ld. Defence Counsels have raised arguments that SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 40 of 49 there are contradictions in the statements of PW-5 Tariq Khan and PW-19. Whereas PW-5 has stated that his statement was recorded in PS, PW-19 IO Inspector Ajmer Singh has deposed that statement of PW-5 was recorded by him in the Maharaja Agrasen Hospital.
71. Another contradiction pointed out by Ld. Defence Counsel is that PW-7 in her testimony has stated that both PW-8 Girdhari Lal and PW-5 Tariq Khan took the deceased Manoj upstairs in his house, however, PW-5 has deposed that after bringing the deceased Manoj to his house, PW-8 Girdhari Lal (mama of deceased) took him upstairs and he left for his home thereafter.
72. From the testimony of PW-5 where he deposed that he was working as a bumper repairer, it can be safely assumed that he was not highly educated person. Therefore, a person of such background is not expected to give minute details with precision. Therefore, the contradictions pointed out are not material contradiction but only minor contradictions which do not affect the case of the prosecution in any manner.
73. Another argument raised by the defence is that PW-5 in his testimony has deposed that the body of deceased bore blue black marks because of beatings given by both the accused, however, no such observation has been made in the PM report which contradicts the version of PW-5. I have carefully perused the post mortem report Ex.PW15/A. It mentions the following external injuries which were found on the deceased body.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 41 of 491. Lacerated wound 1x 0.2 cm x bone deep on right forehead.
2. Reddish abrasion, 1x 0.2 on right face.
3. Reddish abrasion, 2x2 cm on front of left knee joint.
74. In view of the above report, it is clear that he had a bone deep wound on right forehead and reddish abrasions on right face and left knee joint and therefore, corroborates the version of PW-5 where he says that his body bore blue black marks. Hence, the argument of defence that no such observation made by the doctor concerned is against the record. Rather, he has given the details of the external injuries on the body of the deceased. Merely non use of the terms blue black does not in any manner raise dilute the testimony of PW-5. The PM report sufficiently supports the version of PW-5.
75. Another argument raised by the defence is that PW-4 Ct. Jagat Singh who was part the Crime Team and had taken photographs of the spot has in his cross examination has deposed that no blood spot is visible on the photograph as appearing in the photograph Ex.PW4/A-10. Hence, it is stated that this further creates doubt on the story of the prosecution with regard to the place or occurrence of incident as alleged by the prosecution.
76. I have carefully seen the photographs Ex.PW4/A-10. From the naked eye, the blood spots are visible in the photographs on the road/place of incident. Therefore, merely the fact that a witness has deposed against an apparent fact, cannot be allowed to read in favour of the accused persons and against the prosecution even if it is SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 42 of 49 the case that he happens to be a prosecution witness. The court cannot sit as a mute spectator. It is the duty of the court to ensure that all the facts and evidence that has come on record are duly appreciated. Therefore, I am of the considered opinion that the photographs Ex.PW4/A-1 to Ex.PW4/A-10 duly corroborate the prosecution story to the effect that said photographs depict the place of incident where both the accused persons caused injuries to the deceased Manoj.
77. In the present case, prosecution has examined total 19 witnesses out of which five are public witnesses and the remaining 14 witnesses are police witnesses. Out of these five public witnesses, PW-5 Tariq Khan is the eye witness, PW-7 Neelam and PW-11 Rekha are the sisters of the deceased and PW-8 Girdhari Lal is the Mama of deceased and hence, are important witnesses.
78. Since the prosecution case is primarily based on the statement of public witness/complainant namely Tariq Khan, therefore, I shall firstly scrutinize his testimony. He has deposed that on 23.06.2014, at around 10.30 pm, while he was going to meet his friend Naresh at F Block JJ Colony Madipur, he was present in front of 493, J. J. colony Madipur, Delhi and at that time, he observed that Sanjay @B.C and Ashok@ Deepak @Gullu who are residents of J. J. Colony , Madipur were beating Manoj Kumar@ Kauwa with legs and fists. Manoj@ Kauwa was the resident of J.J. Colony, Madipur. He further deposed that as all the said three persons were known to him, he intervened and tried to pacify Ashok and Sanjay. However, Sanjay pushed him SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 43 of 49 aside and told him not to intervene and thereafter Deepak @Kallu sat on the chest of Manoj who was lying on the road after being beaten and beat him up black and blue by striking fists and his elbow on his face and head. His head was smashed against the pakka road. He further deposed that at that time, Sanjay was beating Manoj with his legs and he picked up a slab of stone lying nearby and struck it on Manoj's head. Thinking him to be dead, both of them fled away, leaving Manoj in the pool of blood on the road. He was bleeding from his nose and from his forehead. Seeing the fight, several persons had gathered around but no body was coming forward for help. He further deposed that he cried himself hoarse and sought help but nobody came forward. Thereafter, he lifted Manoj in the injured condition and made him walk to his house with great difficulty after wiping the blood from his face from the handkerchief that was in his pocket. When he went to his house with him in injured condition, he found his mama Girdhari lal standing outside his house. He told him that he had been beaten up by Sanjay and Ashok. House of Manoj was behind his house in a Gali and it was F- 210, J. J. colony, Madi Pur. He further deposed that Mama of Manoj took him upstairs and thereafter he left for his home. After about 1/1.5 hours, he was called up by police at the house of Manoj on telephone and he reached there. On reaching there, he came to know that Manoj had been declared brought dead at Maharaja Agarsen Hospital at Punjabi Bagh. He visited the hospital as well. He correctly identified both the accused persons namely Sanjay and Ashok in the Court.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 44 of 4979. PW-5 Tariq Khan is the only eye witness to the entire incident. A perusal of his entire testimony reveals the sequence of events I.e beatings given by both the accused persons to deceased Manoj, then PW-5 taking the deceased to his home and PW-8 Girdhari Lal taking the deceased upstairs to his room and PW-5 informing PW-8 Girdhari Lal (mama of deceased ), PW-7 Neelam and PW-11 Rekha (sisters of deceased) that both the accused Sanjay and Ashok caused injuries to deceased Manoj.
80. His testimony further gets corroboration from the testimonies of Girdhari Lal who took the deceased to upstairs in his house. Similarly, PW-7 Neelam and PW-11 Rekha have corroborated the version of PW-8 as well as PW-5 and further deposed that PW-5 has told them that accused Sanjay @ BC and Ashok have given severe beatings to deceased Manoj.
81. Furthermore, PW-8 Girdhari Lal in his testimony has deposed that "Manoj who was in a very serious condition was able to tell him that Sanjay @ B.C and his friend had caused injuries to him". This piece of evidence is very material as deceased Manoj had himself disclosed this fact that he was given beatings by accused Sanjay @ BC and his friend immediately before he died. Therefore, this piece of evidence of the testimony of PW-8 is a extra judicial dying declaration made by the deceased immediately prior to his death and shall be treated as a dying declaration made to PW-8 in terms of section 32 of Indian Evidence Act.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 45 of 4982. I have perused the cross examination of this witness. Except the confrontation to the above fact, no suggestion to this effect was given by either of the accused persons. Therefore, the testimony of PW-8 as discussed above, further corroborates the story of the prosecution.
83. Therefore, from the testimony of PW-5, it is clear that both the accused persons had inflicted bodily injuries to deceased Manoj likely to cause his death and therefore, would fall under second and third category as provided in section 300 IPC.
84. Furthermore, both PW-7 Neelam and PW-11 Rekha have deposed that prior to the said incident, on 22.06.2014 accused Sanjay @ B.C in the late night came to their house. He told that their brother Manoj had misbehaved with his sister. Both of them further corroborated each other to the effect that accused Sanjay @ B.C threatened PW-7 Neelm that, "mein uska (manoj) kaam taamam kar dunga". He further threatened that he would kill her brother Manoj wherever he (Sanjay @ B.C) finds him.
85. Therefore, from the testimonies of PW-7 and PW-11, it is clear that accused Sanjay @ BC wanted to teach deceased Manoj a lesson and on the date of incident, he alongwith accused Ashok beat deceased Manoj so badly which led to his death. Thus, the second ingredient of intention (mens rea) is proved here by way of testimonies of sisters of deceased.
86. Except few minor contradictions, all these three SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 46 of 49 witnesses have successfully stood the test of cross examination by the accused persons and nothing contrary whatsoever has come during their cross examination.
87. Now, the next question which arises for consideration is whether deceased died due to injuries inflicted upon him by the accused persons. In this regard, the testimony of PW-15 Dr. Munish Wadhawan, Sanjay Gandhi Memorial hospital is relevant. He conducted the post mortem on the dead body of the deceased and after examination, opined that the Cause of death was cerebral damage as a result of blunt force/object diverted upon head. All injuries were antemortem in nature. He has proved his report as Ex.PW- 15/A (Colly). From his opinion, it is proved that deceased died due to cerebral damages as a result of blunt force/objected upon his head. PW-5 in his deposition has spoken about this fact that the head of the deceased was smashed against the road by the accused persons. Therefore, in view of the conjoint reading of testimonies of PW-5 and PW-15, it becomes amply clear that deceased died due to injuries inflicted upon him by the accused persons.
88. The testimonies of other witnesses (police witnesses) i.e IO of the case and the staff accompanying him also corroborates the version of other public witnesses.
89. The only defence vehemently put forth by Ld. Defence Counsel for accused Sanjay @ B.C is that PW-5 is a motivated witness and has falsely deposed against the accused persons when his demand for money was first SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 47 of 49 turned down by the wife of accused and later on, by accused Sanjay @ BC.
90. ,To counter this argument, Ld. State Counsel has argued that rather PW-5 was so fearful of the accused that he was not coming forward to depose in the court against them. It is further argued that no suggestion whatsoever was put by Ld. Defence Counsel to this witness to this effect.
91. As regards the only defence put by the defence, I am in agreement with the submissions made by Ld. State Counsel. When the wife of accused Sanjay @ BC was aware that this witness was demanding money from her to depose in their favour, she should have approached this court to inform about the conduct of this witness. At this stage, when this witness has deposed against them, is clearly an after thought and not at all appears probable and as such, does not inspire the confidence of this court.
92. The case laws relied on by Ld. Counsel for accused Sanjay@BC are not applicable to the facts and circumstances of the present case because of distinguishable facts.
93. From the facts and circumstances of the case and the documents including the post mortem report, it is abundantly clear that both the accused Sanjay and Ashok in furtherance of their common intention gave beatings and caused bodily injuries on the person of deceased Manoj which caused his death.
SC No. 56586/16 State Vs Sanjay @ BC & Anr. Page 48 of 4994. Therefore, in view of the above discussion, this court is of the considered opinion that prosecution has been able to prove beyond reasonable doubt that both the accused persons are guilty of committing murder of deceased Manoj.
(E) CONCLUSION:
95. In view of above discussion, this court holds that both the accused [email protected] and Ashok are held guilty for offence punishable u/s 302/34 IPC.
96. Let they be heard on the point of sentence.
Digitally signed by POORAN POORAN CHAND
ANNOUNCED IN THE OPEN CHAND Date:
2019.05.01
18:08:06 +0530
COURT ON THIS 26.04.2019
(POORAN CHAND )
ADDITIONAL SESSIONS JUDGE-02
(WEST):DELHI
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