Delhi District Court
State vs . Bal Karan Yadav on 10 January, 2023
IN THE COURT OF SH. SACHIN SANGWAN,
ADDITIONAL SESSIONS JUDGE (FTC01), SOUTHEAST DISTRICT,
SAKET COURT, NEW DELHI.
STATE VS. BAL KARAN YADAV
SC No.295/2017
FIR No. 126/2017
P.S. : AMAR COLONY
U/S 302 IPC
JUDGMENT :
a) Date of offence : 06.04.2017 b) Offence complained of : U/s 302 IPC c) Name of complainant : R (vulnerable witness) d) Name of accused : Bal Karan Yadav @ Karan his parentage : s/o Sh. Ram Varan Yadav, local & permanent residence R/o: A225, Gandhi Camp, Okhla Railway Station, New Delhi e) Plea of accused : Pleaded not guilty f) Final order : Convicted u/s 302 IPC Date of institution of case :28.06.2017
Date on which case reserved for judgment :02.12.2022 Date of judgment :10.01.2023 BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. Accused Bal Karan is facing trial for the charge that on 06.04.2017 at about 10.00 pm near Main Road, Max House, Gate no.3, Okhla Phase III, New Delhi within the jurisdiction of PS Okhla Industrial Area, he had caused several injuries with knife on the person of one Khushi Ram with intention to FIR No. 126/2017 State v. Bal Karan Yadav Pages 1/39 cause his death or with intention to cause such body injury sufficient in ordinary course of nature to cause his death or with knowledge that his act was so imminently dangerous that in all probability, it must cause his death and as a result of injuries so caused, he had died and thereby he committed culpable homicide amounting to murder and accordingly he committed an offence punishable u/s 302 IPC.
2. Accordingly on 24.08.2017, a charge u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case, prosecution has examined 31 witnesses.
S. No. Name of the witness Nature of the evidence
PW1 Ct. Dheeraj Police official who reached the spot of
incident with ASI Krishan Pal on receiving
DD No.55 regarding stabbing of one
person
PW2 Shiv Kumar Brother of deceased Khushi Ram who
identified his dead body in hospital
PW3 Het Ram Brother in law of deceased Khushi Ram
who identified his dead body in hospital
PW4 Ct. Yogesh Kumar Police official who delivered the copies of
present case FIR to the senior police
officers and learned MM of the area
immediately after registration of FIR
PW5 Ct. Dinesh Kumar Police official who was part of
investigation regarding autopsy
proceedings of deceased Khushi Ram
PW6 SI Satish Crime Team Incharge who prepared
inspection report of crime scene
PW7 SI Ummed Singh SI who proved PCR Forms of three phone
calls made to police control room
regarding the incident
FIR No. 126/2017 State v. Bal Karan Yadav Pages 2/39
PW8 HC Jitender He apprehended the accused along with
murder weapon i.e. knife, soon after the
incident
PW9 Dr. Piyush Mehra Doctor who examined the deceased Khushi
Ram after the incident and prepared his
MLC
PW10 ASI Fateh Singh PCR Official who responded to the call of
stabbing and reached the spot and shifted
the injured Khushi Ram to hospital
PW11 Inspector Mukesh Draftsman who prepared the scaled site
Kumar Jain plan
PW12 Ct. Khem Singh Police official who deposited case exhibits
from PS to FSL
PW13 Ms. Renu Daughter of the deceased/witness to
circumstantial facts
PW14 Retired SI Brahm Singh Duty Officer who recorded FIR
PW15 Mr. R s/o K Minor son of the deceased/eye witness
PW16 Arvind Chauhan Passer by who made call on number 100
PW17 HC Mahesh Crime Team Photographer
PW18 Ms. Pinky Daughter of the deceased/witness to
circumstantial facts
PW19 HC Kapil Record witness of another FIR connected
as circumstantial facts to present case
PW20 HC Nityanand MHC(R) who proved the DDNo.9PP
regarding patrolling duty of PW8 on date
of incident
PW21 Ram Avtar Sharma Passer by who witnessed chase of accused
and his apprehension and called at
number 100
PW22 HC Yashpal MHC(M) who proved the entries in
register no.19 and register no.21 regarding
FIR No. 126/2017 State v. Bal Karan Yadav Pages 3/39
deposit/movement of case exhibits
PW23 ASI Devinder Kumar ASI who joined investigation with the IO
of the case
PW24 Dr. Ariji Dey Senior Resident, who identified the
handwriting and signatures of Dr. Suraj
Ohal on post mortem report of deceased
PW25 No witness No witness was examined as PW25
PW26 ASI Krishan Pal Police official who reached the spot on
information of stabbing received in local
police station vide DD No. 55PP
PW27 SI Manu Dev Police official who did initial investigation
and recorded statement of eye witness
PW28 Ct. Pushpendera Police official who deposited one exhibit in
the mortuary of AIIMS hospital
PW29 Inspector Prem Kumar IO who collected FSL report from FSL,
Rohini and filed the supplementary
chargesheet regarding the same
PW30 Parshutam Singh Forensic Expert (Physics), who examined
the exhibits and prepared his detailed
report
PW31 Ms. Amita Raghav Forensic Expert (Chemical) who examined
the case exhibits and prepared her detailed
report
PW32 Inspector Shiv Raj Main IO of the case
Bisht
4. The prosecution has exhibited following documents/objects in support of its case: No.of exhibit Nature of exhibit Ex.PW2/A Statement of brother of deceased Khushi Ram regarding dead body identification FIR No. 126/2017 State v. Bal Karan Yadav Pages 4/39 Ex.PW3/A Statement of brother in law of deceased Khusi Ram regarding dead body identification Ex.PW5/A Seizure memo regarding biological samples (blood, nail clipping, clothes) of deceased Ex.PW6/A Crime Inspection Report Ex.PW7/A, computerized print out of the PCR calls regarding the Ex.PW7/B and incident Ex.PW7/C Ex.PW7/D Certificate u/s 65B of Indian Evidence Act regarding the above mentioned calls Ex.PW8/A Arrest memo of accused Bal Karan Ex.PW8/B Personal search memo of accused Bal Karan Ex.PW8/C Disclosure statement of accused Bal Karan Ex.PW8/D Sketch of knife recovered from accused Ex.PW8/E Seizure memo of said knife Ex.PW8/F Seizure memo regarding blood stained clothes of accused Ex.PW8/G Seizure memo regarding blood stained shoes of accused Ex.PW9/A MLC of deceased Khushi Ram Ex.PW10/A Entry in original register of call book of the PCR official who first reached the spot Ex.PW11/A Scaled site plan MarkPW 12/A Copy of Road Certificate regarding taking of thirteen sealed pullandas along with four sample seals from malkhana of PS Amar Colony to FSL Mark 12/B Copy of Acknowledgment Ex.PW13/A Copy of another FIR and the complaint lodged by PW13's and 13/B sister Poonam Ex.PW14/A FIR Ex.PW14/B Endorsement on rukka Ex.PW14/C Certificate u/s 65B of Indian Evidence regarding the FIR Ex.PW15/A Complaint/Statement of eye witness/son of deceased Ex.PW15/B Statement of eye witness regarding identification of his father's body during post mortem proceedings Ex.PW15/C Handing over memo of dead body of deceased Khushi Ram to his son Ex.P1 Case property i.e. slipper found at crime scene Ex.PWW17/A1 Photographs of scene of crime from different angles to Ex.PW17/A17 Ex.PW17/A18 Negatives of above mentioned photographs FIR No. 126/2017 State v. Bal Karan Yadav Pages 5/39 to Ex.PW17/A34 Ex.PW20/A Original record of DD No.9PP dated 06.04.2017 regarding patrolling of police officials (PW8) Ex.PW22/A Entries in register 19 regarding deposit/movement of case exhibits in/from police station Ex.PW22/B Road certificates regarding sending of knife for opinion at and AIIMS Trauma Center and sending of exhibits to FSL for opinion Ex.PW22/C Ex.PW23/A Seizure memo regarding seizing of the samples/exhibits from crime scene Ex.PW23/B Seizure memo regarding seizing of a slipper from crime scene Ex.P2 to P7 Case exhibits i.e. transparent plastic jar covered with doctor tape containing blood stained cotton, blood stained concretes lifted from the spot and earth control (concretes) lifted from the spot Ex.P8 Alleged weapon of offence i.e. a big knife with plastic handle Ex.P9 Case property i.e. clothes of accused Ex.P10 Case property i.e. shoes of accused Ex.PW24/A Post mortem report of deceased Khushi Ram Ex.PW26/A DD No.55PP regarding stabbing one person near gate no.3, Okhla Mandi.
Ex.PW26/B Site plan of place of incident Ex.PW27/A Rukka Ex.PW30/A Detailed report of Assistant Director (Physics), FSL, Rohini Ex.PW31/A Detailed report of Junior Forensic Chemical examiner Ex.PW32/A Opinion of doctors regarding weapon of offence Ex.PW32/B Sketch of knife prepared by the doctor for his opinion Ex.PW32/C DD No.56PP and DD No.57PP regarding the PCR calls and Ex.PW32/D
5. The main witnesses of the case are: i. PW8 HC Jitender, who apprehended the accused along with murder weapon, ii. PW13 Ms. Renu, daughter of the deceased; witness to the circumstantial facts, FIR No. 126/2017 State v. Bal Karan Yadav Pages 6/39 iii. PW15 Mr R s/o, minor son of deceased; eye witness, iv. PW18 Ms. Pinky, daughter of the deceased; witness to circumstantial facts, v. PW21 Ram Avtar Sharma, passerby who witnessed the chase of accused and his apprehension and called at number 100, vi. PW27 SI Manu Dev, IO who reached the spot and prepared rukka on basis of statement of eye witness, vii. PW30 Sh. Parshuram Singh, Forensic Expert (Physics) who examined the case exhibits and prepared his detailed report, viii. PW31 Ms. Amita Raghav, Forensic Expert (Chemical), who examined the case exhibits and prepared her detailed report and ix. PW32 Inspector Shiv Raj Singh Bisht, main IO of the case.
6. PW8 HC Jitender deposed that on 06.04.2017 he was posted at Police Post Okhla Phase III in PS OIA and while patrolling in the area, at about 10.15 pm when he was under Modi Mill Flyover he saw one boy coming from the side of MAX house. The said boy was running towards railway line towards Harkesh Nagar and was having a knife in his hand. 23 persons were following him shouting 'pakdo, pakdo'. He also chased and apprehended him. Said boy disclosed his name as Bal Karan and the knife was taken into possession. Its blade was made of steel and handle was of white colour. Some public persons also reached there and started beating the accused. He deposed that he brought the accused under the Modi Mill Flyover and called the PCR officials. Then he took the accused in PCR Van to AIIMS Trauma Center, where he got him treated and at about 06.30 am after the accused was released from hospital, he brought him to police station Amar Colony and handed over the accused to Inspector Shivraj Singh Bisht. The knife and MLC of accused was also given by him to the IO. IO arrested the accused vide arrest memo Ex.PW8/A and conducted his personal search vide personal search memo FIR No. 126/2017 State v. Bal Karan Yadav Pages 7/39 Ex.PW8/B. His disclosure statement Ex.PW8/C was recorded and sketch of knife Ex.PW8/D was prepared. The knife was sealed in a pullanda with the seal of SSB vide seizure memo Ex.PW8/E. The blood stained clothes of accused which he was wearing i.e. a jeans pant and a shirt were seized vide seizure memo Ex.PW8/F and blood stained shoes of the accused were also seized by the IO vide seizure memo Ex.PW8/G. He was subjected to cross examination by Ld. Counsel for the accused. In his cross examination, he stated that he made a DD entry of his departure for patrolling duty and his duty was upto 10 pm. He was coming to the police post after his duty hours were over. The distance between the railway line and the place of apprehension of the accused was about 500700 meters. He was going to police post after his hours were over on the motorcycle and after recovery of knife from the accused, it remained in his custody till it was handed over to the Inspector Shiv Raj Singh Bisht. PW8 kept the knife with him wrapped in a cloth and had not handed over the said cloth to the IO. The blade of the knife was of steel and the handle was of plastic and the rough sketch of knife was prepared in his presence. He denied the suggestion that the knife shown in the rough sketch was not recovered from the accused or the same was planted or that accused was not arrested as stated by him or he was picked up from his house. He informed the SHO of PS OIA regarding the apprehension of the accused. When the clothes of the accused were taken and seized, he was provided another set of shoes or only chappals. He stated that he had taken the accused to Trauma Center as he was injured and was vomiting and was beaten up by the public in his presence. The persons who were chasing the accused were not enquired nor their names and address were noted and it is not in his knowledge if the statement of any such person was recorded by the IO.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 8/39
7. PW13 Ms. Renu, daughter of deceased deposed that on 06.04.2017 at about 10.00 pm while she was present in her house and her brother 'R' had gone outside for taking stroll after having dinner, 23 persons who used to run hotels at the place where murder of her father had taken place came to her house and informed her that accused Balkaran had stabbed her father and he was lying on the main road opposite to the MAX House in a pool of blood. She along with her mother immediately went there where her brother 'R' and PCR van was already present there and she noticed that her father was lying there in the pool of blood. PCR Van took her father to the Trauma Center, AIIMS. She along with her brother and mother accompanied the police officials and her injured father to the said hospital. Later on, she came to know that her father was declared dead and while taking his father to the hospital in the said PCR Van, her brother 'R' told that he had witnessed the accused stabbing his father and thereafter running from there with a knife in his hand stained with blood and subsequently being apprehended by public with the knife. She further deposed that she had also seen the accused Bal Karan at the said hospital as he was also taken there for his medical examination. She further deposed that sometime in the year 2015 accused had also molested her sister Poonam and she got an FIR registered against him at PS Amar Colony and thereafter accused starting threatening to kill her father and her sister if they would not take back the said case. Her sister had also lodged the complaint against the accused. She also handed over the copy of said FIR Ex.PW13/A and the complaint Ex.PW13/B to the police. The witness correctly identified the accused present in the court. She further deposed that accused was residing in the same locality where her family is residing after 23 streets from her house and the elder brother of the accused is still threatening her and her younger sister.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 9/39 She was subjected to cross examination by Ld. LAC for the accused. She deposed that 23 persons who informed her about her father used to run hotel and she was confronted with her statement u/s 161 CrPC Ex.PW13/DA wherein the said facts are not recorded. She clarified that her brother told her that he had seen the accused running with knife in his hand stained with blood. She stated that she cannot tell the distance between Jambo House and her house. The Jambo House is situated at about 45 steps from Max House and there is one hotel and one shop near Max House and that shops remain closed most of the times. She had seen only two gates, one on the front of Max House and another in its side and she cannot tell if the place where the incident had taken place was gate no.3 and the said gate was manned by guard for 24 hours. At the time when 23 persons came to her house, she herself, her mother and her younger sister were present at home and his elder brother Vishal and his family were residing in Lucknow, UP and at the time of incident, his brother Vishal was not there. Police had not recorded statement of his brother Vishal and his brother never visited house after the death of his father. She did not know if any person by name Bunty lodged FIR No.340/12, u/s 308 IPC against late Khushi Ram, Smt. Meena, Smt. Jyoti and Vishal in PS Amar Colony. She denied the suggestion that her father did not use to sell pakodas and was in habit of consuming alcohol and also used to quarrel. She further denied that her bother R had not told her anything as stated by her.
8. PW15 Mr 'R' (full name and address is withheld) was a child witness and also an eye witness to the incident. His testimony was recorded as a Vulnerable witness in terms of "Guidelines for recording evidence of vulnerable witnesses in Criminal Matters" issued by Hon'ble Delhi High Court. He deposed that his father was in the business of selling laddoos on rehri at Kalkaji and his father used to leave house at about 2.00 pm with rehri and used to return to the FIR No. 126/2017 State v. Bal Karan Yadav Pages 10/39 house at about 10.00 pm. He deposed that on 06.04.2017 his father left the house for selling laddoos on rehri at about 2.00 pm and on that day, he was going to school for his admission but he could not secure admission and he was present in the house on the date of incident. He deposed that he used to go to Jambo House to look for his father and on the date of incident at about 09.0010.00 pm he was walking around MAX House near Jambo House and at that time, he heard the noise "Khoon Khoon" and he turned around and saw that accused Karan was having knife smeared with blood in his hand and his father was lying on the ground unconscious in the pool of blood and thereafter Karan fled from the spot and he went to call her mother and met her on the way, her mother being followed by her sister. Thereafter PCR reached there and they took his father to the hospital in PCR Van. He saw his father lying unconscious in the pool of blood, his rehri was lying on the other side and he also saw blood stains on the rehri of his father. Some money was recovered from the pocket of his father during search of his father but same was not recovered in his presence. He deposed that he knew Karan Pal prior to the incident as he used to harass his sister and a complaint was lodged against him in the year 2013 and on the said complaint, accused was sent to jail. Police recorded his statement Ex.PW15/A in the police post. He identified his father vide his statement Ex.PW15/B when postmortem was conducted. The dead body was handed over to them after the post mortem vide handing over memo Ex.PW15/C. During his testimony, the witness also identified the accused in the video link. The witness also correctly identified the case property i.e. slipper Ex.P1 produced by MHC(M) in the court.
He was cross examined by Ld. Legal Aid Counsel for accused. In his cross examination, he deposed that his mother told him that summon has been received for him for deposing in the court but his mother and sister had not FIR No. 126/2017 State v. Bal Karan Yadav Pages 11/39 told him as to what he has to depose in the court and when he left the house on the date of incident, his two sisters were at his home but he do not remember whether his mother was present at home or not at that time. He further stated that his elder brother Vishal was not present in the house at that time as he was not living with them at that time. He stated that the walking distance between his house and Jambo House is five to six minutes. There are few shops in between Max house and Jambo House and in fact there are three houses namely Max 1, Max 2 and Max 3 and there are three gates in Max 1. He could not tell the exact gate number of Max House near which he saw his father lying on the date of incident and as to how many people were present when he heard the noise "khoon khoon". When he was standing near Jambo house, he could clearly see his father and his rehri and he first saw his father lying down and thereafter he saw Karan standing there. He could not tell the time when he returned from the hospital in the night or next day and he did not recollect whether the police officials read over the statement Ex.PW15/A to him and his mama was with him when police recorded his statement. However, he could not tell whether police recorded the statement of his mama or any other person in his presence or not. He further stated that he do not recollect whether he told to the police in his statement that he heard the noise "khoon khoon". He further denied the suggestion that he did not see the accused with blood stained knife in his hand or that he has been planted and tutored by the police as a witness in this case. He further denied the suggestion that he never went to the spot or that he has been deposing being interested witness. He admitted that he was aware that 45 cases have been registered against his father by the residents of the colony. He further denied the suggestion that someone else had murdered his father and accused has been falsely implicated in the present case.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 12/39
9. PW18 Pinky, daughter of deceased, deposed that accused Bal Karan was known to her as they reside in the same area and while she was in the class 9 th or 10th the accused used to stalk her on the way to her school and used to harass her. One day when she was returning from public toilet, accused and his brother in law Leelu who were in drunken state restrained her on the way and molested her and touched her chest. Accused also used to molest her sister Renu. Further, she deposed on the same lines as her sister PW13 and corroborated her testimony.
She was subjected to cross examination by Ld. LAC for accused. In her cross examination, she deposed that she do not remember the place where her statement was recorded. She denied the suggestion that accused never did anything wrong with her or with her sister or that she has concocted a false story to falsely implicate the accused in the present case. She further denied the suggestion that her brother never informed her anything about any incident.
10. PW21 Ram Avtar deposed that he was residing at Staff Quarters at Modi Flour Mills at Okhla as said quarter was alloted to his father being working in Modi Mills and on 06.04.2017 at about 9.30/10.00 pm while he was coming from the side of Modi Mill to his house when he came near Gate No.3, Max House, he heard some noise "maar ke bhag gaya" and some public persons were chasing a boy. He also ran after him and the said boy crossed the railway line and after chasing the accused, he was apprehended by the public persons in his presence. He called at 100 number. Accused was handed over to the police officials and thereafter he went to his house. He further deposed that in the meanwhile, he received 2/3 calls from the IO of this case but he had left for his native place at Rajasthan. On 07.06.2017 he returned to Delhi and gave his statement to police at about 12.00/1.00 pm. Thereafter, accused was FIR No. 126/2017 State v. Bal Karan Yadav Pages 13/39 shifted by PCR from the spot. During his testimony, he pointed out towards the accused and after seeing him he stated that, "Iss Tarah ka lag raha hai".
The witness was cross examined by Ld. APP for State as he was not deposing as per his statement given to the police. In his cross examination by prosecution, he deposed that he told the police the name of the accused as Bal Karan and that deceased was the neighbour of accused Bal Karan. One rehri was found on the road and he found the injured lying on the road in the pool of blood and accused was running away from the spot. He admitted that due to passage of time he could not tell these facts in his examination in chief.
In his cross examination by defence Counsel, he deposed that his statement was recorded in front of Gate No.3, Max Hospital and said statement was recorded by the police. In his statement to the police that he had mentioned that he heard some noise that "Maar ke bhag gaya," "Maar ke bhag gaya" and he chased the accused. He was confronted with statement Ex.PW21/A wherein it is not so recorded. He further stated that accused Bal Karan was not known to him prior to the incident and from public persons, he came to know the name of accused Bal Karan but he do not remember the persons who were calling the accused as Bal Karan. He further denied that he did not chase the accused and apprehend him with the help of public persons or he even did not call police at 100 number. He further denied the suggestion that the person sitting in the court is not the same person who was apprehended on the day of incident and he is deposing falsely at the instance of IO.
11. PW27 SI Manu Dev deposed that on 06.04.2017 he was posted as SI Incharge, Police Post Sriniwaspuri of PS Amar Colony and at about 10.15 pm, DD No.55 PP Ex.PW26/A was received regarding stabbing incident near Okhla Railway Station and he along with ASI Krishan Pal and Ct. Dheeraj went to the FIR No. 126/2017 State v. Bal Karan Yadav Pages 14/39 spot i.e. Gate No.3, near Max House, there he found blood was lying on the ground, a slipper (Tara was written on it) of red colour of right foot was also lying and a rehri was also found standing. He further came to know that injured had already been shifted to AIIMS Trauma Center. He collected the MLC of victim namely Khushi Ram, who was declared brought dead on the MLC by the doctor. 'R', son of deceased also met them at the hospital. He narrated the incident and PW27 recorded his statement/complaint at the hospital and on the basis of said statement, he prepared rukka Ex.PW27/A and handed over the same to Ct. Dheeraj and sent him to PS Amar Colony for registration of the case and the dead body was shifted to mortuary of AIIMS hospital and it was preserved for post mortem. Thereafter, he along with complainant went to the spot of incident where Inspector Shiv Raj Singh Bist met him. PW27 handed over the MLC and other documents to Inspector Shiv Raj Singh Bist on the spot, who prepared the site plan Ex.PW26/B on the spot at his instance. Inspector Shiv Raj Singh Bisht lifted the exhibits i.e. blood stained earth, earth control, slipper, blood from the spot in his presence and converted the same into the parcels, sealed the same with the seal of SSB and seized vide memo Ex.PW23/A. Inspector Shiv Raj Singh Bisht also seized the slipper lying on the spot and converted the same into pullanda, sealed with the seal of SSB and seized vide seizure memo Ex.PW23/B. He further deposed that on the next day i.e. on 07.04.2017 IO Inspector Shiv Raj Singh Bisht recorded his statement. PW27 identified the case properties in the court as Ex.P1 to Ex.P7.
He was cross examined by Ld. Counsel for the accused. In his cross examination, he deposed that he received the DD NO. 55PP at about 10.15 pm and on receiving the same, he reached at the spot at about 10.30 pm where 2 4 public persons were found present. He had not recorded their statements as FIR No. 126/2017 State v. Bal Karan Yadav Pages 15/39 they had not disclosed anything on his inquiry. He reached at AIIMS hospital at about 11.30 pm, however, he did not remember whether any other family member of deceased except his son was present at AIIMS hospital. He did not remember whether he had inquired about the date of birth of son of deceased before recording his statement. He had not made any inquiry regarding date of birth of 'R' i.e. son of deceased and he could not say whether date of birth of 'R' is 03.03.2000. He could not say if mother and daughter of deceased were also present in the hospital or not. He did not know whether the injured was shifted from the spot to the hospital by his wife, daughter or his son and he had not recorded the statement of wife and daughter of the deceased. He denied the suggestion that he deliberately recorded the statement of son of deceased as he was minor to strengthen the case of prosecution. He further denied the suggestion that complainant had not made any statement voluntarily and he had tutored him. He stated that Inspector Shiv Raj Singh Bisht prepared the plan site Ex.PW26/B at his instance. He stated that he do not remember whether any public person were present on the spot at the time of preparation of site plan and he had not recorded the statement of any guard at Max House. He stated that when he firstly reached at the spot no eye witness was found present there. He denied the suggestion that he never visited the spot or AIIMS hospital or that he had never joined the investigation of the case.
12. PW30 Sh. Parshuram Singh, Assistant Director (Physics), FSL, Rohini, Delhi deposed that on 28.02.2018 he was posted as above mentioned and on that day two sealed parcels bearing seal of FSL AmrDELHI through Biology Division were deposited and on opening the parcel D, one knife with plastic handle was found in said parcel. He also opened another parcel no.I, which was found containing brownish colour pant in torn condition with Dark Brown FIR No. 126/2017 State v. Bal Karan Yadav Pages 16/39 Stains having five cut marks at front side right lower portion marked Q1 to Q5 and three cut marks on front upper portion side marked Q6 to Q8, one full sleeve shirt in the torn condition with dark brown stains having nine cut marks at front portion marked as Q9 to Q17 and nine cut Marks at back portion Marked Q18 to Q26 and eleven cut marks on the left side sleeve Marked Q27 to Q37. After examining the above mentioned articles, he gave his opinion that the cuts marked as Q1 to Q8 on pants Ex.11 and Q9 to Q37 on shirt Ex.12 could have been caused by knife Ex.D. He prepared the detailed report, same is Ex.PW30/A. After examining the same, he sealed the above mentioned material/case property in the pullanda sealed with the seal of P. S FSL DELHI.
He was subjected to cross examination by Ld. Legal Aid Counsel for accused. In his cross examination, he deposed that he had examined the above mentioned case property with the help of his Assistant and said fact was not mentioned in his report Ex.PW30/A. He denied the suggestion that when the above mentioned pullandas were produced, they were not in sealed condition or that he had not properly examined the material or that he prepared the report at the instance of the police.
13. PW31 Ms. Amita Raghav, Junior Forensic Chemical Examiner, FSL, Rohini, Delhi deposed that on 30.05.2017 she was posted as above and on that day 13 sealed parcels bearing seals of SSB and Forensic Medicine JPNATC AIIMS NEW DELHI through Biology Division at her office were marked for examination. On opening all the parcels, they were found containing the exhibits mentioned in her report. After examining the same, she prepared the detailed report Ex.PW31/A and sealed the above mentioned material/case property in the pullandas sealed with the seal of FSL Am.R DELHI. As per her report, the exhibits i.e. Ex.G (Gauze cloth of deceased) is similar/matching with the Exhibits i.e. A (cotton wood swab from the scene of crime), Ex.A1 FIR No. 126/2017 State v. Bal Karan Yadav Pages 17/39 (concrete material taken from the spot), Exhibit B1 (cement piece from the spot), Exhibit C (Chappal of deceased), Ex.D (knife), Ex.E1 and E2 (cloths of accused), Ex.F (shoes of accused), Ex.H (nails of deceased) and Ex.11 and Ex12 (clothes of deceased).
She was subjected to cross examination by Ld. Legal Aid Counsel for accused. In her cross examination, she deposed that she examined the above mentioned case property with the help of her Assistant and the said fact was not mentioned in her report Ex.PW31/A. She denied the suggestion that when the above mentioned pullandas were produced before her, they were not in sealed condition or that she had not properly examined the material or that she prepared the said report at the instance of police.
14. PW32 Inspector Shiv Kumar is the main IO of the case. He deposed that on the intervening night of 6/7.04.2017 he was posted as Inspector at PS Amar Colony and on that day, after registration of FIR, investigation of the case was handed over to him. Thereafter, he along with ASI Devender went to the spot i.e. near Gate No.3, Max House, near Okhla Railway Station, Delhi with IO kit. Therein they found ASI Krishan Pal already present on the spot. One rehri was standing there, blood was also found lying on the ground and one right leg slipper was also lying on the footpath. He made inquiries from the persons found on the spot and even the guard posted at gate no.3 was also inquired. No guard was found deployed at gate no.2 of Max House. The blood lying on the spot was lifted by him with the help of cotton from main road and footpath and he put it in a test tube and converted the same into the pullanda with the seal of SSB. He also lifted blood stained concrete and earth control from above said two places on the spot. He put all these samples/exhibits into separate plastic transparent jar and put doctor tape on its lid and sealed with the seal of SSB. He prepared one seizure memo regarding all the above mentioned FIR No. 126/2017 State v. Bal Karan Yadav Pages 18/39 samples/exhibits already Ex.PW23/A and the said slipper was seized vide seizure memo Ex.PW23/B. He again made inquiry at the spot and came to know the name of deceased as Khushi Ram and the accused who had inflicted injuries on his person was already involved in previous litigation. It was revealed from the spot that accused was already apprehended by HC Jitender who was from PS Okhla Industrial Area and had taken the accused to AIIMS hospital. ASI Krishan Pal told the fact that before PW32 had reached the spot, the Crime Team had reached at the spot and had done all the relevant proceedings by lifting the exhibits, clicking photographs of scene of crime etc. and the injured was also shifted to AIIMS hospital by SI Manu Dev, who was Incharge of Police Post Srinivas Puri, Delhi. He further deposed that after some time, SI Manu Dev reached at the spot and PW32 prepared the site plan Ex.PW26/B without scale at his instance and in the meanwhile, Ct. Dheeraj reached at the spot after registration of FIR in this case and he handed over the FIR and original rukka to PW32. Thereafter, PW32 along with ASI Devinder and other police officials went to the police station along with above mentioned samples/exhibits in sealed condition and he deposited the samples/exhibits in malkhana of PS Amar Colony. On the same day morning at about 06.30 am HC Jitender came to the police station along with accused as well as recovered weapon of offence i.e. knife and his MLC and handed over accused, his MLC and recovered weapon of offence to PW32 at his office. PW32 prepared the sketch of knife Ex.PW8/D and converted it into a pullanda with the seal of SSB. The weapon of offence was seized vide seizure memo Ex.PW8/E. PW32 arrested the accused vide his arrest memo Ex.PW8/A, conducted his personal search vide personal search memo Ex.PW8/B. He interrogated the accused and recorded his disclosure statement vide disclosure statement Ex.PW8/C. He also seized the wearing clothes of accused which FIR No. 126/2017 State v. Bal Karan Yadav Pages 19/39 were worn by him at the time of incident and were having the blood stains and converted the same into pullanda, sealed the same with the seal of SSB and seized the pullanda vide seizure memo Ex.PW8/F. He also seized the shoes of accused worn by him at the time of incident and converted them into the pullanda, sealed the same with the seal of SSB and seized the pullanda vide seizure memo Ex.PW8/G. He further deposed that said case property was deposited in the malkhana of PS Amar Colony and during investigation, he recorded the statement of witnesses. Thereafter, accused led the police party consisting of himself and ASI Devinder to the spot i.e. in front of Gate no.3, Max House, Okhla and PW32 prepared the pointing out memo Ex.PW23/C at the instance of accused. Thereafter they came to PS along with the accused and he was sent to lock up of PS Amar Colony. PW32 along with another police officials went to the mortuary of AIIMS hospital where dead body of deceased was already preserved by Ct. Dinesh. PW32 conducted proceedings u/s 174 CrPC at AIIMS Trauma Center and post mortem of deceased Khushi Ram was got conducted. He recorded the statement of witnesses and dead body of deceased after its post mortem was handed over to his son 'R' in presence of his relatives after proper identification. PW32 collected the post mortem report and placed the same in the file and on the same day, he called the draftsman Inspector Mukesh Jain and went to the spot along with him. Said draftsman prepared rough notes at his instance on the spot and he recorded his statement at police station. Thereafter, the accused was produced before the court by him after his medical examination and accused was sent to JC.
He further deposed that on 14.04.2017 Ct. Dinesh handed over him three sealed pullands duly sealed with the seal of Forensic Medicine JPNATC AIIMS along with three sample seal which were handed over to him by the FIR No. 126/2017 State v. Bal Karan Yadav Pages 20/39 doctors of above mentioned hospital and PW32 took the same into his possession vide seizure memo Ex.PW5/A and same were deposited in malkhana of PS Amar Colony. He further deposed that during investigation the weapon of offence was sent to AIIMS Trauma Center for obtaining subsequent opinion which he got from the doctors vide Ex.PW32/A. The said report is also supported with the sketch of knife Ex.PW23/B prepared by said doctor and he identified the signature of said doctor in his official capacity. He collected the report of crime team along with photographs of the spot and during investigation, he also collected the PCR forms from CPCR office and recorded the statement of other witnesses. He further deposed that he also collected DD No.55 Ex.PW26/A and DD No.57 Ex.PW32/C and Ex.PW32/D of PP Sriniwaspuri regarding the PCR calls. He also got collected the scaled site plan Ex.PW11/A and also made a note on the same. During investigation, he examined the relatives of deceased and they produced the documents pertaining to previous litigation with accused vide Ex.PW13/B. He further deposed that on 30.05.2017 all the above mentioned exhibits were sent to FSL, Rohini for seeking expert opinion. He also recorded the statement of police officials of PCR Van who took the injured to the hospital during the investigation and after completion of investigation, he filed the chargesheet in the court. The witness identified accused Bal Karan as well as case property present in the court. He further deposed that supplementary chargesheet has been filed by Inspector Prem Kumar regarding receiving of the FSL expert opinion from FSL Rohini.
He was subjected to cross examination by Ld. Legal Aid Counsel for accused. He stated that on the intervening night of 6/7.04.2017 he reached at the spot of incident at about 1.00 am for the first time where ASI Krishan Pal was found present and some public persons were also standing at that time FIR No. 126/2017 State v. Bal Karan Yadav Pages 21/39 nearby the spot and he inquired from them and even he mentioned the name and addresses of said public persons in his case diary but he did not record their statements. He stated that the distance between the spot and the gate no.2 Max House was about 15/20 steps. He stated that he had not recorded the statement of said guard during inquiry. He further stated that distance between Jambu House and the spot was about 20 steps. He voluntarily stated that the spot is clearly visible from Jambo house. He further stated that the gate no.3 is near the spot and the gate no.3 Max House is situated near the Jambo House and the gate of railway colony quarters and shops near the spot were closed as it was odd time. He admitted that he had not mentioned any street light pole in the site plan Ex.PW26/B specifically. He further denied the suggestion that he never accompanied the draftsman Inspector Mukesh Jain to the spot for preparing the rough notes for scaled site plan. He further denied the suggestion that the site plan Ex.PW26/B was prepared by him while sitting at PS. HC Jitender of PS Okhla handed over him the weapon of offence with blood stains in open condition, the same was not wrapped in any cloth or with any other thing. He did not notice whether the blood stains were there on the hands of HC Jitender or not. He do not remember the exact measurements of the weapon of offence but he voluntarily stated that he can identify the same. He deposed that the handle of said knife was made of plastic and blade was of steel/iron. The witness was shown the sketch of knife Ex.PW8/D and after seeing the same, the witness stated that it was not mentioned on Ex.PW8/D that the handle of knife is made of plastic. He voluntarily stated that the said fact is mentioned in the seizure memo Ex.PW8/E of knife. He denied the suggestion that the seizure memo Ex.PW8/E is not pertaining to the knife of which sketch Ex.PW8/D was prepared. He admitted that he mentioned the measurement of the knife on its sketch Ex.PW8/D and the knife mentioned in FIR No. 126/2017 State v. Bal Karan Yadav Pages 22/39 sketch Ex.PW8/D and Ex.PW32/B are the same. He further admitted that Ex.PW32/B was not prepared in his presence and the signature by the doctor mentioned at point A were not affixed in his presence. He further admitted that the length of knife in Ex.PW32/A and Ex.PW32/B is same to be 33.5 cm. He further denied the suggestion that the knife sent to the doctor seeking subsequent opinion was planted upon the accused or that nothing was recovered from the pocket of deceased when he went to AIIMS Trauma Center for conducting post mortem. He further denied the suggestion that he had not conducted investigation in this case fairly or that he has falsely implicated the accused in this case at the instance of complainant. He stated that he had not received any complaint from the residents of colony against deceased Khushi Ram during investigation.
15. After conclusion of prosecution evidence the accused was questioned u/s 313 CrPC regarding incriminating circumstances appearing against him. Accused stated that he has been falsely implicated and the prosecution witnesses are interested witnesses. However, accused chose not to lead any defence evidence. Thereafter, final arguments of the prosecution and the Ld. Counsel of the accused were heard.
16. Ld. APP has submitted that prosecution has proved its case against accused beyond reasonable doubts. The presence of the accused at the spot with a blood smeared knife, immediate pursuit of the accused and his apprehension therefrom has been proved. Even the recovery of the murder weapon has been effected from the accused. Further, the accused had motive to murder the deceased due to previous litigation between the family of deceased and the accused. The Forensic evidence links the knife to the injuries on deceased and cuts on his clothes. Even DNA examination of the knife and the wearing clothes/shoes of the accused have matched with the DNA FIR No. 126/2017 State v. Bal Karan Yadav Pages 23/39 examination of the blood of deceased. Ld. APP has submitted that there are minor inconsistencies which are natural in the ocular evidence of any witness.
On the other hand, the Counsel for accused has disputed the fact of PW15 being an eye witness, the apprehension of the accused immediately after the offence and even the recovery of knife. Defence Counsel has also disputed the motive ascribed to the accused and has rather argued that it is the present case which is a motivated one. The detailed arguments of the defence Counsel are discussed in the succeeding paras.
17. I have considered the arguments of the parties and have perused the file.
18. It is not disputed that the deceased Khushi Ram was murdered. Even the medical evidence vide Ex.PW24/A i.e. post mortem report mentions that death was caused as a result of hemorrhage and shock consequent upon penetrating trauma to the chest and abdomen vide injury no.1 and 4 respectively which is sufficient individually as well as collectively to cause death in ordinary course of nature. Said report also proves that the injuries were caused by penetrating object/weapon. The only question of determination is whether the accused had caused the said injuries and has therefore murdered the deceased Khushi Ram.
19. Adverting to the arguments of the Counsel, the first argument raised by the Counsel is that as per the eye witness PW15 the incident occurred at about 09.0010.00 pm and he immediately informed about the same to his family. However, the initial PCR call regarding the incident as reflected in the form I of Delhi Police Control Room Ex.PW7/C recorded at 22:22 mentions the incident information as "the caller informed that her father had been murdered by someone". Ld. Counsel has submitted that same shows that till 10.22 pm it was not known to the family of alleged eye witness as to who has committed the murder and by logical corollary PW15 himself did not know who had committed the murder at that time since he had not witnessed the incident. I FIR No. 126/2017 State v. Bal Karan Yadav Pages 24/39 have considered said argument. It is to be noted that when the news of murder of any family member reaches his house the very first reaction is of panic and shock. The call is made under extreme mental trauma at that stage and the sole purpose is to inform the police so that police help reaches at the earliest and efforts could be made to revive the injured if possible. The phone call to the police by the family members cannot be expected to be mentioning the details of the murder in the aforesaid given circumstances. Hon'ble Supreme Court has held in various cases that even the FIR is not encyclopedia of the complete facts of the case and just sets the investigating agency in motion. Moreover, it is not the case that the eye witness himself made the call. Thus, it cannot be said that merely because the name of accused was not mentioned as murderer in the phone call by the family members, the eye witness had no knowledge of the murderer.
Ld. Defence Counsel has further submitted that the conduct of PW15 i.e. alleged eye witness is also not believable as after allegedly seeing the accused with the blood smeared knife and his father in the injured condition neither he rushed to save his father nor he chased the accused. On the contrary, he has claimed that he went to call his mother. Defence Counsel has submitted that it is not believable that somebody's father was brutally stabbed and he neither attempted to save his father nor chased or attempted to chase the murderer of his father. As per Defence Counsel, same shows that PW15 is a planted witness. Defence Counsel has further argued that during his cross examination PW15 deposed that accused fled from the spot but PW15 failed to tell in which direction he ran away. Counsel has submitted that it is not possible that an eye witness is not able to tell even the direction in which the murderer escaped despite seeing him running from the spot. I have considered said arguments. It is to be noted that the testimony of a witness has to be appreciated considering FIR No. 126/2017 State v. Bal Karan Yadav Pages 25/39 his age, social background, education, profession etc. It is to be noted that the eye witness was a teenage boy at the time of the incident. Even if a grown up man witnesses a murder where the injured is stabbed with a knife multiple times and there is blood all over, he may run for cover. It is human nature that the very first reaction to a violent crime is self preservation/survival. Thus, it is not abnormal that a young child of such age immediately rushed to call his mother on hearing the noise of murder and seeing the accused with a blood smeared knife besides his father in a seriously injured condition. As far as the failure of PW15 to tell the direction in which accused fled from the spot is concerned, as mentioned above, the reaction of any ordinary man on seeing a murder is of self preservation, shock and mental trauma. Hence, observation power of a man may dull/freeze during such moments and the only possible reaction is either fight or flight for self preservation. Thus, the mere fact that PW15 failed to tell the direction in which the accused ran away does not discredit his testimony.
The Counsel has further argued as per crime inspection report Ex.PW6/A it is mentioned that "as per IO, the injured Khushi Ram was stabbed by some unknown person". The Counsel has submitted that said observation of the crime team categorically shows that there was no eye witness to the incident and PW15 is a planted witness. I have considered said argument. As per Ex.PW6/A, the crime team arrived at the spot and inspected the spot from 12.10 am to 12.45 am on 07.04.2017. As per report itself at that time the victim had been shifted to hospital. As per prosecution, the family members of the deceased which included the eye witness had also gone to the hospital and the IO Inspector Shiv Raj Bisht has deposed that ASI Krishan Pal told him that before his (IO) reaching the spot the crime team had reached at the spot and had done all relevant proceedings. Even FIR itself was registered at 12.50 am FIR No. 126/2017 State v. Bal Karan Yadav Pages 26/39 consequent to which investigation was marked to Inspector Shiv Raj Bisht. Therefore, the crime team had inspected the spot before registration of FIR and in the presence of ASI Krishan Pal only who was present at the spot for its preservation but had neither met the eye witness/family members, nor was part of proceedings at hospital where the complaint was recorded. Thus, he was not having knowledge of name of the murderer at the time crime team inspected the spot. Even, crime team (Incharge) PW6 SI Satish has deposed that ASI Krishan Pal met them at spot. Hence, the observation mentioned in crime inspection report that as per IO deceased was stabbed by some unknown person is evidently mentioned by crime team as per facts told by police official present at the spot i.e. ASI Krishan Pal.
The defence Counsel has further argued that PW15 has deposed that they (he and his family) took his father to the hospital in PCR Van, however, in the MLC of the deceased Ex.PW9/A it is mentioned that patient was brought by police official Fateh Singh. Ld. Counsel has submitted that it is unnatural that hospital authorities would not have mentioned the name of the family members in such column when they were accompanying the patient to the hospital. Ld. Counsel has submitted that same shows that neither PW15 nor any of the family members were even present in the hospital when deceased was brought therein by the police. Same goes on to show that PW15 was not even present at the spot at the time of incident. I have considered said argument. As discussed earlier, the family members of any person who is murdered go into mental shock on such incident. Moreover, such family members were three females and one teenage boy and not any adult male member of the family. Even otherwise, when the police officials accompany an injured person to a hospital and are well versed with the procedure of the hospital regarding admission, emergency treatment etc. they take the initiative FIR No. 126/2017 State v. Bal Karan Yadav Pages 27/39 to get the patient admitted in the hospital and it is natural that the hospital authorities had written the name of police official Fateh Singh as the person who brought the injured in the hospital. Moreover, there is no requirement that in a medico legal case the hospital authorities ought to mention the names of all the persons who have brought an injured to the hospital. Had it been the case that the family members themselves had taken the injured to hospital without any aid/assistance of police officials then such circumstance would have been crucial.
Ld. Defence Counsel has further argued that as per PW15 he went along with his father to the hospital and as per prosecution, his father was stabbed multiple times and there was blood on and around the spot indicating that he was bleeding profusely. Surprisingly, no blood stained clothes of PW15 were seized nor there is evidence that his clothes were even stained with blood. Ld. Counsel has submitted that it is highly improbable that son of injured was involved in shifting of the injured from the spot to the hospital but had not even touched the body of injured because if he had touched the body of the injured, his clothes would have been stained with blood. However, the absence of such evidence categorically shows that PW15 is a planted witness. I have considered said argument. It is to be noted that eye witness was a teenage boy and apparently he was in state of shock as he had rushed to inform his mother and family. As the deceased was stabbed multiple times with blood all over the spot and his clothes, it was natural for PW15 a teenage boy not to touch his father in such a terrifying and gruesome state. Moreover, police officials had arrived at the spot so it was not unnatural that the police officials had taken the initiative and lifted the injured from the spot.
Ld. Defence Counsel has further argued that PW10 ASI Fateh Singh who was amongst the first police officials from the local police station to reach the FIR No. 126/2017 State v. Bal Karan Yadav Pages 28/39 spot has deposed in his examination in chief that he reached the spot and found the deceased on the ground. He has deposed that wife, son and daughter of injured came there. As per Ld. Defence Counsel, same shows that none of the family members were present at the spot before the arrival of the police. He has further argued that rather PW5 Ct. Dinesh who reached the hospital on 06.04.2017 after being called by SI Manu Deb has deposed in his cross examination that he reached the Trauma Center at about 11.15 pm on 06.04.2017 and that the relatives of Khushi Ram (deceased) reached in hospital after he reached there. Accordingly, Ld. Defence Counsel has argued that same shows that the alleged eye witness was not even at the hospital till about 11.15 pm and same goes on to show that the eye witness is a planted one. He has further submitted that PW15 was not even at the hospital because the dead body was identified by two other persons and third name of PW15 was added subsequently as the police generally records dead body identification statement of only two witnesses. It is submitted that name of PW15 has been added in dead body identification memo just to show his presence in the hospital. He has further argued that even there are no signatures of alleged eye witness PW15 in the request for post mortem despite him being the son of deceased. Same shows that he was not even present at the time of post mortem proceedings. The Counsel has further argued that even otherwise, there are other inconsistencies regarding recording the statement of PW15 for registration of the FIR. On one hand, PW27 has deposed that he recorded the statement of witness at hospital but on the other hand, PW15 has deposed that police recorded his statement at the police post thereby showing that even the complaint had been manipulated and no one knows where it was recorded. I have considered said arguments. It is not the case of prosecution that PW15 and other family members were continuously FIR No. 126/2017 State v. Bal Karan Yadav Pages 29/39 present at the spot since the time of murder till the police arrived there. PW15 on seeing the incident rushed to his home to inform his mother and thereafter returned to spot with his mother and sister. As per PW10 SI Fateh Singh, the wife, son and daughter of injured had reached the spot as soon as they reached there. So it is not the case that PW15 and other family members were not available at spot for long. Hence, credibility of PW15 cannot be doubted on the said argument. As far as testimony of PW5 Ct. Dinesh Kumar is concerned, it is to be noted PW27 SI Manu Dev who was present in the hospital even before PW5 and had rather called him to come to hospital, has deposed that PW15 met him in hospital. It is to be noted that PW5 has not specifically deposed that son, daughter, wife of deceased reached later on but has stated 'relatives' of deceased reached after his arrival and such 'relatives' could be other relatives of deceased. Moreover, PW5 Ct. Dinesh Kumar had the role of keeping the custody of dead body at the hospital, shifting it to mortuary etc. and was not part of investigation with PW27 Manu Dev who was actively involved in process of seeking the eye witness and family members of deceased for the investigation. It is to be noted that PW1 Ct. Dheeraj who was present with PW27 during initial investigation has specifically deposed that PW15 was present in the hospital and perhaps a girl was also present with him. As far as recording of statement of three witnesses for dead body identification is concerned, there is no hard and fast rule regarding the same. Statement of one person is also enough and statement of more than two persons may also be recorded. Hence, there is no substance in the said argument. Similarly, the argument that the eye witness has not signed on the request for the post mortem is also not material. As far as the argument regarding the place of recording of complaint is concerned, there is apparent contradiction regarding the place at which the complaint was recorded i.e. hospital or the police post.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 30/39 However, the same does not discredit the case of prosecution since PW15 has stood the test of cross examination regarding the incident and there is strong forensic evidence against the accused linking him to the alleged offence. Same is discussed in the last part of the judgment.
Defence Counsel has further argued that the police officer who allegedly caught the accused i.e. PW8 HC Jitender was neither the IO of the case nor even from the police station where the case was registered. Said police official was not even on duty at the time of alleged apprehension of the accused by him. PW8 HC Jitender has deposed that after he apprehended the accused, he called the PCR officials and then he took accused in PCR Van to AIIMS Trauma Center. Ld. Counsel has submitted that, however, there is no such PCR Call record on judicial file. Same shows that accused was never apprehended as alleged. I have considered said argument. It is to be noted that prosecution has led evidence Ex.PW20/A regarding DD NO.9PP dated 06.04.2017 and has also filed certified copy of the same in the chargesheet which shows that at 08.50 am HC Jitender and other police officials departed for patrolling for Govind Puri metro station and Okhla Industrial Area III. PW8 has deposed in his cross examination that his duty was upto 10.00 pm and he was coming to the police post after his duty hours was over. Accordingly, the presence of the said police official at the given place is not unnatural. As far as time is concerned, the duty of police officer is not like office duty of a private organization where an employee may leave immediately after his duty hours. Rather, the fact that police official of another police station is involved in apprehension of the accused negates the planting of a witness by the IO as in such case the police official so planted would have been from the local PS of Amar Colony only being immediate subordinate of IO/SHO and being under their control. As far as non filing of record of PCR call by PW8 is concerned, FIR No. 126/2017 State v. Bal Karan Yadav Pages 31/39 the initial PCR calls reporting the crime are the most relevant and record of the same have been filed.
Ld. Defence Counsel has further argued that even the alleged knife shown to be recovered from the accused is a planted one. He has submitted that PW15 has deposed that he has seen the accused with knife smeared with blood whereas there is no blood stain on the paper having knife sketch Ex.PW8/D which was prepared by tracing out the outlines of the knife on the paper. Defence Counsel has further argued that even the seizure of the knife was not done as per prescribed manner. He has argued that PW8 HC Jitender has deposed in his cross examination that he had kept the knife with him wrapped in a cloth but he had not handed over said cloth to the IO. Even otherwise, no chance prints were lifted from the knife and were matched with the prints of accused. The Defence Counsel has further argued that in his cross examination the alleged eye witness PW15 has expressed his inability to identify the knife. Accordingly, the alleged knife is a planted one. I have considered said argument. As far as absence of blood stain on the knife's sketch is concerned, no witness has deposed that sketch was prepared by placing the knife on the paper and tracing its outlines. The sketch could have been prepared even otherwise without touching the knife with the paper. As far as argument of the Counsel regarding non seizure of the cloth in which the knife was kept by PW8 is concerned, the IO ought to have seized said cloth also, however, the said defect in the investigation does not discredit the case of the prosecution as the blood traces were found on the knife by the FSL team and the report regarding the same is filed by the prosecution. As far as lifting of the chance prints from the knife is concerned, same would have been crucial if the knife would have been found at the spot or from other place but not from the personal possession of the accused. However, since the knife was FIR No. 126/2017 State v. Bal Karan Yadav Pages 32/39 recovered from the personal possession of the accused, the non lifting of the chance prints is not of much significance. As far as the inability of PW15 to identify the knife is concerned, it is to be noted that PW15 had seen the occurrence at a distance of about 22 meters as reflected in the scaled site plan. Further, the knife at that time was smeared in blood and was being held by the accused so its handle would not have been visible. Thus, the testimony of PW15 is natural that he cannot identify the particular knife.
Ld. Defence Counsel has further argued that the alleged apprehension of the accused in a hot chase is highly doubtful as there are inconsistencies between the statement of public witness PW21 Ram Avtar and the police officer PW8 HC Jitender who apprehended the accused in the alleged hot chase. He has argued that PW21 has deposed that after chasing the accused he was apprehended by the 'public person' in his presence and PW21 called at number 100. Accordingly, PW8 was not even in picture when the accused was allegedly apprehended. Therefore, same shows that accused has been apprehended subsequently in the morning hours of the next day from his house. He has submitted that even the time of arrest of the accused is reflected in the arrest memo as of 07.30 am of the next date i.e. after about 10 hours of the incident. Defence Counsel has further argued that PW8 HC Jitender has deposed in his cross examination that he had taken the accused to Trauma Center as he was injured and was vomiting but no such medical document has been filed. He has argued that all these facts show that accused was never apprehended in the alleged manner and was rather lifted from his house subsequently. I have considered said argument. It is to be noted that PW21 has deposed that he called at 100 number and in the meanwhile police officials who were patrolling came there and accused was handed over to the police officials. Thus, even PW21 has referred to the patrolling police officials FIR No. 126/2017 State v. Bal Karan Yadav Pages 33/39 i.e. the local police staff and not to the PCR officials who respond to number
100. As far as the physical apprehension of accused is concerned, it has been deposed by both PW8 and PW21 that the accused was apprehended near the railway line. Nothing has come in the cross examination of PW8 or PW21 to conclude that the accused was arrested much later from his home in the morning hours of 07.04.2017. It is to be noted that PW21 was a public person and was just a passerby residing near the spot where the accused was apprehended and there appears no reason why he shall depose falsely regarding apprehension of the accused. As far as the medical documents of the accused is concerned, Ld. APP has pointed out that the MLC No.500016012/06APR2017 of the accused is part of the police file and was not proved or filed as same was not an incriminating piece of evidence per se. During the arguments, Ld. APP has shown the said MLC to the Court. Said MLC shows the history of assault. Ld. APP has submitted that it is not the case of prosecution that he received any serious or visible injuries and, hence, no such injuries have been mentioned on the MLC. Ld. APP has submitted that MLC also shows the time of examination as 11.10 pm of 06.04.2017 thereby confirming the fact that accused was apprehended soon after the incident and was not lifted from his house subsequently. I have considered the submissions of Ld.APP. Since the MLC of the accused was not proved formally by the prosecution, its contents cannot be read in evidence. However, it is to be noted that during entire cross examination of PW8 he was never questioned as to whether he can produce such MLC of the accused. His testimony to the effect that accused was taken to AIIMS Trauma Center and was treated therein was not disputed in his entire cross examination. Unless a witness is questioned on any aspect and he fails to give a satisfactory reply (in this case a document) regarding the same, he cannot be condemned as untrustworthy.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 34/39 Moreover, PW13 Ms.Renu has specifically deposed that she had also seen the accused at the same hospital as he was also taken there for medical examination. Said fact has not been controverted during her entire cross examination.
. Ld. Defence Counsel has further argued that no CCTV footage either of the incident or the presence of accused near the spot at the relevant time is there. He has pointed out that PW1 Ct. Dheeraj has admitted that there was a security guard at the gate of MAX house, however, said security guard is neither a witness cited by the prosecution nor appears to have been inquired during investigation. The Counsel has argued that though PW23 ASI Devinder has deposed in his examination in chief that a guard posted at gate no.3 was also inquired but the IO/PW32 has deposed in his cross examination that he inquired public persons at the said spot but he did not record their statements. Accordingly, there is no independent witness/evidence to link the accused to the alleged offence and their absence is also doubtful. I have considered the argument. It is correct that there is no digital evidence i.e. the CCTV footage or the testimony of any guard deputed near the spot of occurrence. However, IO PW32 Inspector Shiv Raj Bisht has deposed that a guard posted at gate no.3 was also inquired by him and that no guard was found deployed at gate no.2. Nothing has come in his cross examination or otherwise to suggest that the guard at gate no.3 was a witness to the incident and despite the same he was not cited as a witness. Likewise, there is nothing in cross examination of PW32 that there was any other public witness who was found to be an eye witness to the investigation but was not joined by the IO deliberately. Mere lack of independent witness cannot be equated to a false case and Court is not unaware of the general attitude of the public persons to shy away from police proceedings unless their own interest is involved in the police proceedings.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 35/39 Ld. Defence Counsel has further submitted that prosecution has ascribed a motive to the accused by alleging that the daughter of the deceased had filed a case against him under POCSO Act. As per Ld. Defence Counsel, said allegation holds no ground for two reasons: firstly, the accused has been acquitted in the alleged case and secondly, the deceased had enmity with various other persons and same is evident from the fact that PW15 has deposed in his cross examination that he is aware of 45 cases registered against his father by the residents of the colony. Ld. Counsel has argued that on the other hand PW13 has tried to hide said fact from the court and deposed that she do not know if any person by name Bunty lodged FIR No.340/12 u/s 308 IPC against deceased and others in PS Amar Colony. Ld. Counsel has submitted that same shows family of the deceased has conspired to frame the accused in the present case. I have considered the said argument. It is an admitted case that at the time of the alleged offence, the other case against the accused under POSCO Act was yet pending. Moreover, besides the said case, there is testimony of PW13 that after registration of said case, the accused started threatening to kill father of PW13 and her sister if they did not take back the said case and even another complaint was lodged against the accused regarding the same. Such complaint have been exhibited as Ex.PW13/B. Said complaint shows that on 27.03.2014 a complaint was given by Ms. Pinki (daughter of deceased) that her family is receiving threats from the accused and his family. In the entire cross examination of PW13 or even PW18, said complaint is not disputed. Thus, it cannot be said that accused had no motive or enmity against the deceased/his family. The second leg of argument raised by the Counsel for accused is regarding other cases registered against the deceased by the residents of the locality. However, the mere fact that deceased had some dispute with some other person is not sufficient to disbelieve the FIR No. 126/2017 State v. Bal Karan Yadav Pages 36/39 motive of the accused.
Proceeding further, besides the ocular evidence of eye witness PW15 the case of prosecution gets ample support from the immediate apprehension of the accused soon after the incident and at a short distance from the place of occurrence. The weapon recovered from the possession of the accused was examined by the doctor of Forensic Medicine as to whether the injuries received by the deceased could be caused by said knife and whether cut marks on the clothes of the deceased could have been caused by said knife. After examining the knife vis a vis the injuries and the cut marks, the doctor has opined that injuries and the cut marks were possible by the said knife. Even the FSL expert PW30 had examined the knife and the wearing clothes of the deceased and has given his report Ex.PW30/A. As per said report, the cut marks Q1 to Q8 on the pants of the deceased and the cut marks Q9 to Q 37 on the shirt of the deceased were examined physically under magnification. The cut edges of the cut marks were sharp. Two test cut marks were made on the pants and shirt each with the help of the knife and these were compared with the crime cut marks and after examination, it was found that cut marks Q1 to Q8 and Q9 to Q37 could have been caused by the knife in question. Therefore, the knife in question corresponds to the injuries and the cut marks on the wearing clothes of the deceased. Most importantly, the knife and the clothes and shoes of the accused were examined by the FSL experts and it has been reported by the FSL expert PW31 in her report Ex.PW31/A that male DNA profile was generated from the source of exhibits including the knife, clothes and shoes of accused and the blood samples of the deceased (gauze cloth piece of deceased) and after examination, the DNA profile generated from the blood on gauze of deceased was found matching with the DNA profile generated from the knife, clothes and shoes of accused. This shows that knife recovered FIR No. 126/2017 State v. Bal Karan Yadav Pages 37/39 from accused had blood of deceased and even his clothes and shoes had blood of deceased on them. Accordingly, the scientific evidence leans heavily towards the guilt of the accused. Same also corresponds to the manner in which crime was committed because the deceased was stabbed multiple times and as many as 16 stab/incised wounds were caused on the body of the deceased. Accordingly, it was natural that lot of blood must have spilled over around the deceased when he was so mercilessly attacked and resultantly the blood would have definitely fallen on the assailant's clothes/shoes during the whole attack. In this regard, the Counsel for accused has argued that it is not unheard of that in some cases police plants the blood of the deceased on the clothes of the accused. However, said argument is too generic and vague. In the cross examination of the IO or the other police officials, no fact has come to suspect that police may have gone to such extent and for what reason. It is not the case of accused that he had any enmity or grudge with any of the police official associated with the case. Even the chain of custody of the exhibits have been established by the prosecution and nothing has come in the cross examination of the witnesses to suspect that any of the exhibits was tampered with. Accordingly, court has no reason to doubt the aforesaid forensic reports. Once it is established that the blood of deceased was on the wearing clothes/shoes of the accused, the burden shifts on him to explain the circumstances under which the same came on his clothes/shoes. However, accused has totally denied the case of prosecution.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 38/39 In view of aforesaid discussion, the case of prosecution stands proved against the accused beyond reasonable doubts. Hence, he is convicted for the Digitally signed by offence u/s 302 IPC charged against him. SACHIN SACHIN SANGWAN SANGWAN Date: 2023.01.10 15:45:38 +0530 (Pronounced in open court on 10th January, 2023) (Sachin Sangwan) ASJ(FTC01) SouthEast, Saket Courts, New Delhi.
FIR No. 126/2017 State v. Bal Karan Yadav Pages 39/39