Delhi District Court
State vs Ajay @ Jai S/O Sh Bhaskar on 29 October, 2011
IN THE COURT OF SH. AJAY KUMAR JAIN, LD. ADDL.SESSIONS
JUDGE03, SE: NEW DELHI
Sessions Case No. 60/10
State Vs Ajay @ Jai S/o Sh Bhaskar
R/o J29, Indira Gandhi Camp, Sidharth Basti,
New Delhi. (In judicial custody)
FIR No : 194/10
P.S. : Sunlight Colony
U/s. : 302/34 IPC
DATE OF INSTITUTION : 24.09.2010
JUDGMENT RESERVED ON : 21.10.2011
DATE OF DECISION : 29.10.2011
JUDGMENT:
1. Brief facts of the case are that on receiving DD No. 3 A at about 9.20 am on 4.6.2010 regarding lying of unidentified dead body at subway near railway line, Sidharth Basti Sunlight colony SI Dharmender alongwith Ct. Satish reached the spot and found the dead body in naked condition and whose face was completely damaged. At some distance deceased clothes and one pair of black colour chappal was found and on inquiry on spot, deceased was identified as Ajay s/o Ranjit but no eye witness was found and thereafter, SI Dharmender had called Inspector VKPS Yadav who reached spot, further rukka State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-1) was prepared by SI Dharmender and sent to PS for registration of case. Thereafter, the investigation was handed over to Inspector VKPS Singh who called the crime team at spot and conducted inspection of spot and photographs of dead body was taken by crime team and later on the dead body was sent to mortuary. Inspector VKP Singh has seized from spot blood sample of deceased, blood stained earth, blood stained stone, concrete and half pant type pyjama and red T shirt and one key ring having only one ring and further prepared the site plan and postmortem of deceased was conducted.
2. During investigation, one eye witness Soni Kumar was found who on inquiry stated that he resides near the place of incident in one Mazar and used to clean the Mazar and on the night of 3/4.06.2010 when he was sleeping at the Mazar at around 1 am in the night he heard some cries on which he woke up and saw accused Ajay @ Jai at some distance on the other side of subway and one other boy to whom he did not know and both were hitting one person with stone and accused Ajay was telling the other boy do it hurriedly otherwise somebody will see them. He further stated that on seeing the same, he fell terrified and silently went to Mazar and slept. And lateron he saw the dead body at that place. During investigation, inspector from the history sheet record shown some photographs and on seeing the photograph of Jai @ Ajay he identified him and stated that he is the person who killed that person on the said night. Thereafter, the State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-2) inquiries were made from accused Ajay @ Jai who admitted the guilt and stated that on the said night he alongwith his friend were drinking liquor and at around 12'O clock he had seen a person aged around 40 years and on seeing him co accused Chinkara had abused him and asked him to give money for liquor and that person thereafter gave abuses to Chinkara. On this co accused Chinkara started beating him with fists and legs and pushed him on the nearby stones and in the meanwhile he had also torned the red T shirt of accused Chinkara and after he fell down they both hit him with the stone lying nearby thereafter, they had attacked on his face number of times with stone and on his search, they could not find anything, than they ran from that place.
3. After arrest of accused Ajay, his medical was conducted and his blood sample and hair sample were preserved and statement of eye witness Soni Kumar was further recorded u/s 164 Cr.P.C. and later on postmortem report was received and cause of death opined as cranio cerebral damage consequent to blunt force impact. IO opposed an application of TIP filed by accused, and Ld. ACMM in his order observed that as the complainant is neighbour of accused and knew him from childhood therefore, it is not safe to conduct the TIP of accused. Despite efforts accused Chinkara @ Chikara could not be found out due to lack of address and parentage. On completion of investigation chargesheet was filed.
State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-3)
4. On committal charges u/s 302 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
5. Prosecution for substantiating charge examined 18 prosecution witnesses. Eye witness Soni is examined as PW5, other witnesses are police officials, doctors and of identification of dead body. Summary details of their deposition as follows.
Deposition of eye witness (PW5 Soni Kumar)
6. PW5 Soni Kumar deposed that he was working as Mullaji at Mazar near Sidharth Basti and on 3.6.10 when he was sleeping at Mazar, heard some cries then went ahead and hide himself behind bushes and saw two persons there and saw one dead body lying and one of them is accused Ajay @ Jai and thereafter he came back and went to sleep and on next day he had seen the dead body near Mazar. Further deposed that he knew accused Ajay who was staying in same basti and accused Ajay was not telling anything to his accomplice. He further deposed that he do not want to say anything in this case and had not made any statement before the Magistrate. On being declared hostile, in cross examine by Addl. PP he stated that it is correct that he was sleeping outside Mazar on 3.6.10 and heard the cries of someone between 12 midnight to 1 am and saw two persons quarreling with one person on the other side of Mazar and accused was also standing State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-4) there. He further stated that it is correct that he knows Ajay prior to incident as staying in nearby basti. And further seen the face of accused Ajay at that time. But could not recognize the other two persons. He further deposed that accused Ajay was telling other two persons "hurry up and do it fast otherwise somebody will come and see us" and thereafter, on seeing all this came back and went to sleep and did not tell anything about the incident to anybody due to fear. And on the next day he told this fact to the police and identified the photograph of Ajay at PS.
7. In cross examination, he stated that on 3.6.10 he was working as electrician and now working as kabadi and having 4 sisters and 3 brothers and knew accused Ajay for about 2 ½ years prior to incident and was never arrested by police in any case and have not read the statement recorded by police and further stated that his statement was recorded on 3.6.10 at around 12 midnight or 1 am. He further deposed that spot is around 12 ft away from Mazar and further stated that it is correct that he is tutored by police to state these facts before the court. On court question, this witness stated that he had seen the dead body on night but had not witnessed the crime and not seen the accused in night but again said that he had seen the accused at 12 midnight or 1 am. And also stated that he had seen both dead body and accused Ajay at 12 midnight or 1 am at the spot. (it is observed by the court that this witness is not answering questions straightaway). He further State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-5) deposed that he used to do nasha after dinner and used to take liquor and on the night of incident he had taken country made liquor about one quarter and further stated that he was shown the photographs of suspected persons in PS on 5.6.10 and was shown photograph of only two persons and he do not know who was the second person. He further deposed as per his knowledge accused Ajay was not arrested earlier in any other crime. He further deposed that accused was involved in snatching cases. He further deposed that he used to live at H.No. C13, Sidharth Basti before shifting to Mazar and further he do not know where his mother and brother are staying at Badarpur. He further deposed that he had not gone to Patiala House court with regard to present case. He further stated that it is correct that he had seen the dead body only at that time and further came today before court with police officials.
Deposition of Other witnesses:
8. PW1 Ajay deposed that on 05.06.2010 he identified the dead body of his deceased father Ranjeet Singh at AIIMS mortuary and in cross examination stated that his father was unemployed and sick and came to know regarding the death of his father on 05.06.2010 in the morning between in 7.00/8.00 a.m. PW2 Bachan Ali deposed that on 04.06.2010 at around 9 am when he was going towards Nizamuddin on foot, he saw the dead body and thereafter informed 100 number State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-6) from his mobile. In cross examination he stated that he informed the police from his mobile but the said mobile is not with him and stolen 34 months back. And police had not collected any document of ownership of his mobile. He further stated that 23 other person were also present near dead body but they were not having their mobile and left the spot after calling from mobile and police recorded his statement on 10.06.10.
9. PW16 Sh D.K. Jangla, Ld. MM recorded the statement of PW Soni Kumar u/s 164 Cr.P.C on 8.6.10. In cross examination, he stated that he had not asked any question regarding education of that witness and asked th questions in Hindi but recorded the same in English.
10. PW17 Dr. Sudipta Ranjan Singh deposed that he is deputed to depose on behalf of Dr. Sushil Sharma who conducted the postmortem of deceased Ranjit Singh on 5.6.10 and as per postmortem report the cause of death opined to cranio cerebral damage consequent to blunt force impact. He further deposed that injury no.2 & 3 individually and injury no. 1 to 4 collectively sufficient to cause death in ordinary course and injury no. 5 & 6 were evidence of attempt of throttling and all injuries were antemortem in nature and fresh in duration. In cross examination he denied the suggestion that he had not worked with Dr. Suhsil Sharma and had not seen him signing.
State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-7) Deposition of Police officials:
11. PW3 SI Dharmender Kumar deposed that on receiving DD no. 3 A he went to spot alongwith Ct. Satish and found lot of people gathered there and a naked dead body was found lying on the pieces of stones over grass and head of the dead body was crushed badly and behind dead body a pair of plastic chappal, a bunch of key and T shirt was lying and blood was lying over his face as well as round the body and after some time the son of the deceased namely Ajay and identified the dead body and no eye witness was found at the spot. He prepared rukka pursuant to which FIR was registered, the crime team alongwith photographer reached at spot. He further deposed that SHO VKPS Yadav seized T shirt, plastic chappal, bunch of key, earth control blood stained earth and blood stained stone and also seized half pant of the deceased and some blood was lifted from the face of the deceased and IO prepared the site plan at his instance.
12. In cross examination he stated that he left PS at around 9.30 am and SHO also reached the spot after about 15 minutes. He further deposed that before arrival of SHO he made inquiries from the public persons and one person namely Ajay told him that deceased was his father and his name is Ranjit Singh and crime team reached at the spot after 4045 minutes after his arrival. He further stated that he had not State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-8) recorded statement of Ajay at that time when he identified the dead body. He further stated that Mazar was around 100 mtr from the scene of occurrence. And lot of people were staying in Mazar but he had not made any inquiries in the Mazar. He further stated that SHO lifted the exhibits from the spot at around 11.15 am and at that time Ajay son of deceased was not present. He further stated that all the plastic boxes containing the exhibits were purchased by him from market but cannot tell the name of shop from where he purchased plastic boxes and those shops were located 100200 mtrs away from spot. He further deposed it is correct that there is no particular mark on key and stated that he was not present at the time of arrest of accused and also do not know whether the accused came to the PS himself or was arrested from somewhere by the IO. He further stated that it is correct that accused moved an application for TIP before court and he submitted before court that witness is scared of accused Ajay who was neighbour of the accused. He further denied suggestion that Ajay s/o deceased was not present at the spot.
13. PW4 W/HC Meena Arora recorded FIR and also received information at 9.20 am from PCR control room. PW6 Ct. Satish Kumar also deposed that he went alongwith SI Dharmender Kumar on receiving of DD no. 3 A and found the dead body of male lying in naked position and one T shirt was lying near dead body and one half pant was lying near the foot of dead body and after some time SHO State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-9) and other Sr. officials reached at th spot and he had taken rukka from spot for registration of FIR . And after registration came back to spot and handed over the same to IO. IO prepared the site plan and in the meanwhile crime team also reached and taken several photographs. He further deposed that in the meanwhile Ajay Singh reached the spot who identified dead body. In cross examination, he stated that he reached the spot and found 1520 people present there and Ajay s/o deceased was also present in crowd who identified the dead body and none other person present in ground knew the deceased. He further deposed that it is correct that he had not stated in his statement u/s 161 Cr.P.C that Ajay s/o deceased was present at spot. Mazar was around 100 mtrs away from the dead body and SI Dharmender Kumar had recorded the statement of Ajay s/o deceased at the spot and other staff including SHO reached the spot after 2025 minutes. He further deposed that crime team reached around one hour of their reaching at spot and do not know who is complainant in the present case and further stated that site plan was prepared by SI Dharmender. Again stated that he do not know who prepared the site plan and dead body was lying 2030 mtrs away from subway and Mazar is 4045 mtrs away from subway. He further deposed that number of public persons were present at the time of seizure but he cannot say that IO had asked public persons to join investigation or not. And further could not tell when he went to PS to deposit case property and also could not state where his statement was recorded.
State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-10)
14. PW7 SI Mahesh Kumar prepared the scaled site plan at the instance of IO. PW 8 HC Ashok Kumar had taken the dead body of Ranjit Singh to AIIMS mortuary on 4.6.10. In cross examination he stated that dead body was taken to hospital at around 12 noon by him in Government vehicle Tata 407. PW9 Ct. Kartar Singh deposed that he delivered the computerized copy of FIR to senior officers on 04.06.2010.
15. PW10 SI Ram Bir Singh deposed that on 06.06.2010, he joined investigation and on that day with the IO they have interrogated about 1820 suspects and Ajay @ Jai was interrogated in PS on that day and was arrested on same day vide arrest memo Ex. PW10/A and further his disclosure statement was recorded by the IO and was taken to spot and his pointing out, IO prepared rough site plan and also prepared the site plan on pointing out of accused. In cross examination he stated that accused was called at police station on the night of 05.06.2010 and the person who accompanied was Raju but he cannot tell the name of other persons and accused was brought to police station through HC Ashok and further denied suggestion that accused was interrogated in some other murder case 23 months back and illegally detained for 23 days and accused was illegally taken into police station on 03.06.2010.
16. PW11 SI Vijay Pal Singh Kasana incharge crime team deposed that State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-11) he had inspected the spot and photographer of the crime team took the photographs on 04.06.2010 and in cross examination stated that at the time when he reached the spot 810 public persons were present but he cannot say whether any relative of the deceased was present. Name of the deceased was disclosed to him by SI Dharmender.
17. PW12 HC Raj Singh deposed that being member of crime team, took nine photographs of the spot from different angles and stated that they reached the spot by Tata 407 at about 9.30 a.m. but cannot tell how many public persons were present at the spot and cannot say whether IO had seized any article from the spot.
18. PW13 ASI Mahavir Prasad deposed that on 04.06.2010 he was on duty with PCR van and on receiving the information from control room reached the spot and found the dead body of male in naked condition. In cross examination he deposed that at the spot 1015 public persons were there but none of them could disclose the identity of the deceased and after 10 minutes SI Dharmender and SHO Sunlight Colony reached the spot and he left the spot at around 9.30 a.m.
19. PW14 SI Surender Kumar deposed that he had taken the exhibits of the case alongwith copy of seizure memos from IO at spot and deposited the same in malkhana. In cross examination he stated that State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-12) he reached there at around 1.00 a.m. but cannot tell whether crime team was present or not. PW15 W/Ct. Manju deposed that she recorded the information at PCR control room at 9.09 a.m. on 04.06.2010 regarding lying of a dead body at the spot.
20. PW18 Inspector VKPS Yadav, SHO/IO deposed that DD no. 3A regarding the dead body of unknown person was marked to SI Dharmender and from spot SI Dharmender informed about the murder and thereafter he went to the spot and found that dead body at spot and his cloth and chappals were lying at the spot and number of public persons were there out of which one Ajay Kumar identified the dead body and thereafter rukka was prepared by SI Dharmender pursuant to which FIR was registered and investigation was handed over to him and he also called crime team at the spot and lifted exhibits from the spot. Thereafter, he alongwith staff made certain inquiries from various persons of locality, initially no clue was ascertained but at later stage one Soni Kumar disclose about the incident and stated that he saw Jai @ Ajay residing in the same locality at the spot, who alongwith two other persons killed deceased and he was shown the photographs of the known criminals and on seeing the photograph he identified accused Ajai @ Jai and thereafter his statement u/s. 164 Cr.P.C. was recorded and efforts were made to search accused Jai @ Ajay. On 06.06.2010 he alongwith SI Rambir , Ct. Virender and Ct. Pravesh went in search of accused Jai @ Ajay various places and near State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-13) Bhogal, accused was apprehended and interrogated and his arrest memo and personal search memo was prepared and his disclosure statement was recorded, thereafter he pointed out the place of occurrence. He further deposed that he recorded the statement of Soni u/s. 164 Cr.P.C. but coaccused Chikara could not be traced.
21. In cross examination he deposed that when he reached the spot 7080 people were present at the spot and crime team reached the spot after 45 minutes of his arrival and son of the deceased was reached after one hour of his arrival and also inquire about the incident from the public persons present there but had not recorded their statement. On the intervening night of 05/06.06.2010 he recorded statement of eye witness Soni Kumar. He further deposed that he prepared the site plan after reaching the spot and identified the key ring from son but no identification memo was prepared and the plastic bottles in which samples were kept were purchased from market and same were purchased by constable. Further plastic katta was also purchased from market. He further deposed that he went to mazaar on 04.06.2010 between 1.30 2.00 p.m. and found 23 persons including mullaji but Soni Kumar was not found at that time and he met him first time on 04.06.2010 at about 5.006.00 p.m. when he again went to mazaar. He further deposed that he recorded the statement of Soni Kumar in the intervening night of 05/06.2010 and further recorded his supplementary statement on 06.06.2010. He further deposed that he State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-14) went to search of accused Jai @ Ajay at his house but he could not be found there. He further deposed that distance between the mazaar and where the dead body was lying is about 6070 feet. He further deposed that he had not obtained the signature of Soni Kumar and further he had not requested the resident of mazaar to join in the investigation and further asked Soni Kumar to sign on pointing out memo and site plan but he refused. He further denied suggestion that Soni Kumar is a planted witness.
22. In statement of accused persons u/s. 313 Cr.P.C. accused denied all the incriminating circumstances and stated that he was falsely implicated in the present case but not opted to lead any defence evidence. Material Exhibits
23. Ex. PW4/C is DD no. 3A recorded at 9.20 p.m. in PS regarding lying of a dead body at spot. Ex. PW3/C is rukka prepared by SI Dharmender Kumar and sent from spot at around 10.20 a.m pursuant to which FIR was registered vide Ex. PW4/A. Ex. PW18/C is site plan. Ex. PW3/A and Ex. PW3/C is the seizure memo of various articles seized from the spot.
24. Ex. PW10/A is arrest memo of accused Ajay @ Jai dt 6.06.2010 State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-15) showing time of arrest 9.30 a.m. in PS Sunlight colony. Ex. PW10/D is the pointation memo of place of occurrence prepared at the instance of accused Jai @ Ajai, Ex. PW10/C is disclosure statement of accused Ajay @ Jai. Ex. PW18/D is seizure memo of blood and hair sample of accused Ajay @ Jai. Ex. PW10/E is rough site plan on the pointation of accused Ajay @ Jai. Ex. PW1/A and Ex. PW18/B are statements about identification of dead body by Ajay s/o deceased Ranjeet Singh and Vishwanath Paswan brother of the deceased. Ex.PW18/D2, brief facts of case prepared by IO PW18 on 05.06.2010.
25. Ex. PW5/A is statement of PW Soni Kumar recorded u/s. 164 Cr.P.C. Ex. PW18/H1 is DNA fingerprinting report showing no results due to non availability of DNA profiles.
26. Ld. Amicus Curie for the accused submitted that prosecution failed to prove any of the circumstances alleged against accused. Ld. Amicus Curie for the accused submitted that as per prosecution evidence deceased dead body was identified through his son PW1 Ajay on the spot on 04.06.2010 whereas PW1 in his deposition stated that he first came to know about the incident on 05.06.2010 at around 7.00/8.00 a.m. in the morning. Therefore, the prosecution story is doubtful on the factum that how the prosecution came to know about the identity of deceased on 04.06.2010. Further if PW1 Ajay had identified the State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-16) deceased on 04.06.2010, he should have witnessed all the proceedings at spot and further must have accompanied the deceased for postmortem to the hospital, but he was not shown as a witness to any seizure prepared at spot neither present when the dead body was taken to hospital for postmortem. Ld. Amicus Curie further submitted that entire case of prosecution is dependent upon one eye witness PW5 Soni Kumar. Ld. Amicus Curie further submitted that PW18 IO in brief facts Ex. PW18/D2 prepared on 05.06.2010 had mentioned that no eye witness was found till 05.06.2010, whereas PW18 in cross examination stated that he met PW5 Soni Kumar on 04.06.2010 in the evening at around 5.00/6.00 p.m. This circumstance itself shows that the said eye witness was a planted eye witness. Ld. Amicus Curie further submitted that even the testimony of PW5 is not at all inspiring. Ld. Amicus Curie further submitted that this PW5 in his examination in chief had not stated how the incident happened and further attributed no role to accused Ajay @ Jai in inflicting the injuries to the deceased. Further in cross examination on court question he stated that he had not witnessed the crime and had not seen the accused in the night but again said he had seen the accused. This witness also stated that he is tutored by the police. Therefore, this witness is not at all credible.
27. Ld. Amicus Curie further submitted that PW18 deposed that accused was arrested from near Bhogal flyover on 06.06.2010, whereas PW10 State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-17) Ram Bir Singh who is witness to the arrest of accused Ajay @ Jai stated that accused Ajay alongwith 1820 suspects called at PS and where on interrogation he was arrested. Ld. Amicus Curie further submitted that even the circumstance of arrest is not proved by the prosecution, thus prosecution failed to prove its case on all material aspects of the case and unable to connect the accused with the alleged crime.
28. Ld. Addl. P.P. stated that the deceased was duly identified by PW1 his son and this fact was mentioned in rukka and mere not mentioning this fact by PW1 in his testimony is a minor defect and further PW5 had correctly identified the accused in the court and stated that he had seen accused at the time of murder of the deceased and further there is nothing on record why this witness will deposed against accused Ajay @ Jai. Thus prosecution is able to prove its case beyond doubt.
29. Arguments heard. Record perused.
30. As per prosecution evidence, PW3 SI Dharmender Kumar alongwith PW6 Ct. Satish reached the spot on receiving DD no.3 A at around 9.20 am on 4.6.10 and at spot they found the dead body of deceased whose face was found to be mutilated and out of the crowd one boy came stated his name as Ajay and told that it is the body of his father pursuant to which rukka was prepared and sent for registration of FIR.
State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-18) In the meanwhile, SHO and crime team reached the spot and SHO /IO PW18 collected the blood stained stone, clothes and chappal of deceased and thereafter sent the body for postmortem. But no eye witness was found at the spot. Lateron, as per deposition of PW18 an eye witness Soni Kumar (PW5) met him at 5/6 pm on 04.06.2010 and thereafter he recorded his statement on the intervening night of 5/6.06.10 pursuant to which accused Ajay @ Jai was arrested. Therefore, as per prosecution evidence, the main witness of the prosecution deposing about the complicity of the accused in crime is PW5 Soni Kumar. Before discussing his evidence, let me first discuss the circumstance of disclosure of identity of the deceased Ranjit Singh.
31. As per rukka Ex.PW3/A when PW3 SI Dharmender Kumar alongwith PW6 Satish Kumar reached the spot, the dead body was identified by son of the deceased namely Ajay at the spot who is examined as PW1.
32. PW1 in his statement before the court had not stated anything that he identified the dead body of his father deceased Ranjit Kumar at the spot on 4.6.10. In his deposition before court, he only stated that he identified the dead body of his father Ranjit Singh in the hospital and in cross examination he further deposed that he came to know about State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-19) the death of his father in the morning between 78 am on 5.6.10. According to DD no.3 A and rukka Ex.PW3/A , the said information of the death of the deceased Ranjit Singh was received by the police at around 9.20 am in the morning on 4.6.10 and thereafter the said dead body was identified by PW1 Ajay at the spot on 4.6.10 before the preparation of rukka which was prepared at around 10.40 am on 4.6.10.
33. But as per testimony of PW1 Ajay, he got the information of death of his father on 5.610 at around 7/8 am on next day then how can he identify the dead body of his father on 4.6.10, this created doubt over his presence at the spot on 4.6.10 and also raised question on the proceedings of the police at the spot.
34. IO PW18 had seized the blood stained stone, blood stained soil, blood from the body of the deceased and further the clothes, chappal etc., and a key ring from the spot on 4.6.10 vide seizure memo Ex. PW3/B and the said seizure memo is witnessed by PW6 Satish Kumar and PW3 SI Dharmender kumar. But it is not witnessed by PW1 Ajay kumar. If as per rukka (Ex.PW3/A) PW1 Ajay was present at the spot, he should have been made witness to the seizure memo but he was not the witness to this seizure memo and after completion of these formalities, body was sent for postmortem. But there is nothing in any of the medical documents that PW1 Ajay accompanied the dead body State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-20) which was sent for postmortem. This all reinforced doubt about the presence of PW1 Ajay at the time of disclosure of identity of the deceased as per rukka.
35. PW3 SI Dharmender in cross examination stated that he reached the spot at around 9.30 am and SHO also reached the spot after 15 minutes and before reaching of the SHO (VKPS Yadav, PW18), the dead body was identified by Ajay son of deceased and crime team also reached the spot at around 4045 minutes. He further stated that when the SHO lifted the exhibits from the spot, Ajay s/o deceased was not present. And he had also not recorded the statement of Ajay (PW1).
36. PW6 Ct. Satish who accompanied PW3 to spot stated that on reaching the spot alongwith SI Dharmender kumar, he found the dead body and after some time SHO and Sr. officers also reached the spot and he took the rukka from spot to the PS and crime team also reached the spot and Ajay was also present at the spot who identified the dead body. But in cross examination he stated that it is correct that he had not stated the presence of Ajay at the spot in his statement u/s 161 Cr.P.C and also stated that SI Dharmender recorded statement of Ajay which is in contradiction to the statement of SI Dharmender (PW3) who stated that he had not recorded the statement of Ajay.
37. PW3 SI Dharmender cleverly stated in his testimony that before State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-21) reaching of IO , Ajay s/o deceased had identified the dead body and was not present at the time of seizure of articles from the spot. This witness also stated that SHO (PW18) reached within 15 minutes of their reaching at the spot. But PW18 in cross examination stated that crime team reached at the spot after 45 minutes of his reaching at spot. And son of deceased (i.e, Ajay) reached the spot after one hour of his arrival at the spot. According to PW18 therefore, PW1 Ajay identified the dead body after one hour of arrival of PW18 (IO) whereas as per PW3 SI Dharmender the dead body was identified even before reaching of IO (PW18) at the spot who reached the spot after 15 minutes of his reaching. This all created doubt over the presence of PW1 Ajay at the spot on the day when the rukka was prepared. And ultimately, it created doubt on the circumstance how the dead body was identified by the police in the present case.
38. Again said that if PW1 Ajay was present at the spot at the time of preparation of rukka, then in all probability he should be the witness to all the seizures and also must have accompanied the dead body for postmortem to hospital but that is not the case.
39. Ex. PW11/A is the crime team report prepared between 10.30 am to 11.15 am but it does not mention anything about the presence of PW Ajay at spot . Even in the testimony of PW11 SI Vijay Pal Singh who was Incharge of crime team had not stated anything about the State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-22) presence of of any relative of deceased at the spot and deposed that he cannot say that if any relative of deceased was present. PW13 ASI Mahavir Prasad who was on PCR duty stated that he reached spot and within 10 minutes SI Dharmender and SHO reached the spot and 1015 public persons were present there but none could identify the dead body. This deposition of PW13 also created doubt over the testimony of PW3 SI Dharmender who stated that on reaching at the spot one of the public persons namely Ajay s/o deceased (PW1) identified the dead body at spot.
40. The prosecution case over the complicity of the accused in the present case hinges around over the testimony of Soni Kumar PW5 alleged eye witness. In cross examination, PW18 (IO) deposed that during investigation he went to Mazar first time on 4.6.10 between 1.30 to 2 pm and found 56 persons including Mullaji but eye witness Soni Kumar was not found and when he went again he met Soni Kumar at around 56 pm and further stated that he prepared the brief facts of the case. Brief facts of the case is exhibited as Ex.PW18/D2. As per this exhibit the brief facts were prepared on 5.6.10 and it was mentioned in the said fact that no eye witness was found which is in contradiction to his statement in cross examination where he had stated that on 4.6.10 he met the eye witness on 5/6pm. If he had met the eye witness PW5 Soni on 4.6.10 he must have mentioned th said fact in brief facts Ex.PW18/D2 and must have recorded the statement State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-23) of witness PW5 on 4.6.10 itself but even as per chargesheet statement of PW5 u/s 161 Cr.P.C was recorded on 5.6.10. whereas as per the testimony of PW5 his statement was recorded by police on 3.6.10 night. From the testimony of PW5 nothing is gathered about when he met first time to the police. Therefore, the prosecution story is blurred on the aspect when this eye witness PW5 met the police.
41. Now coming to deposition of PW5 (Soni Kumar), who in his testimony stated that on 3.6.10 he was working as Mullaji at Mazar and on the night of 3.6.10 he heard some cries and by hiding himself he saw two persons, one of them was Ajay @ Jai (present accused) and lying of dead body and on the next day, he had seen one dead body near Mazar. Further deposed that he do not want to state anything in this case and had not made any statement before the Magistrate. On being declared hostile in cross examination by Addl. PP he deposed that it is correct that he heard cries of someone on night of 3.6.10 and he had also told to the police that two persons were quarreling with one person on the other side of Mazar and Ajay @ Jai was also standing there and he knew the accused before because they were staying in nearby Sidharth Basti. He deposed that he could not identify the other two persons and due to fear not named accused Ajay @ Jai. And further stated that that person was killed by accused Ajay @ Jai and other two persons. In cross examination by counsel for accused, he stated that he was working as an electrician and presently State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-24) working as kabadi. Further stated that his statement was recorded on 3.6.10 at about 12 midnight to 1 am and further spot is around 12 ft away from Mazar (whereas PW3 and PW6 deposed it was around 100 meters). On court question he stated that he had seen the dead body on the night but had not witnessed the crime and further have not seen the accused in the night. But again stated that he had seen the accused in the night. And it was observed by the court that this witness is not answering straightaway and trying to confuse the court. He further deposed in cross examination that on that day he had taken one quarter of country made liquor and also could not state where his mother and brother were staying and further stated that he had signed in his statement u/s 164 Cr.P.C in Saket court.
42. This witness in examination in chief stated that he was working as mulla in said Mazar whereas in his cross examination he stated that at that time he was working as electrician and presently working as a kabadi. In his testimony, there comes nothing which could show how he came into contact with the police. In his examination in chief before turning hostile stated that on hearing cry, he saw two persons and also lying of dead man. Whereas in his statement on being declared hostile he stated it is correct hat he saw two persons quarreling with one person. There is nothing mentioned in his statement about the quarrel and only said he had seen two persons and a dead body. In his cross examination by Addl. PP, PW5 State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-25) stated that accused Ajay was telling other two persons to do hurry up otherwise somebody will come and see them. Therefore, by this he created presence of 3 accused persons at the spot besides deceased, whereas as per prosecution case there were only two accused persons. He further deposed in cross examination by Addl. PP that on next day he saw the dead body at the spot as lot of people gathered there. And told the police that accused Ajay @ Jai killed the deceased. It implies that he saw the dead body on the spot on the next day i.e, on 4.6.10 before being taken to postmortem by the police at around 12 noon. However, as per prosecution case this witness came into contact with police on 5.6.10 and there is nothing in the proceedings of police that this eye witness met them on spot on 4.6.10.
43. This witness in cross examination by the counsel for the accused stated that it is correct that he is tutored by the police and further on court question stated that he had not witnessed the crime and had not seen accused at night. Though, again improved and stated that he had seen the accused. And it is observed by the court that this witness is not answering straightaway and tried to confuse the court.
44. Further, this PW5 stated in cross examination that he is BA(pass) but even could not tell where his statement u/s 164 Cr.P.C recorded. He deposed that his statement was recorded in this court (Distt. Court State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-26) Saket) whereas his statement u/s 164 Cr.P.C as per record is recorded at Patiala House and at that time this Saket court was not in operation. This witness in cross examination stated that he used to do nasha after dinner and on that day he had taken half quarter of country made liquor. It has come in evidence that there are number of people resides at Mazar therefore, it is unlikely that on said night no other witness heard cry except this witness PW5 who was having nasha on that day.
45. Considering the overall testimony and other circumstances it is not clear how this witness came into contact with the police further the testimony of this witness not at all appears to be credible and cannot be relied upon.
Circumstance of arrest of accused Ajay @ Jai:
46. According to PW18 IO Inspector VKPS Yadav (SHO), PW5 disclosed the name of accused Jai @ Ajay as one of the accused and thereafter he was shown the history sheet and dozier and after seeing photograph of Ajay @ Jai, PW5 identified the accused and thereafter efforts were made to chase Ajay @ Jai and on 6.6.10 he again started investigation of the case and on that day he alongwith SI Rambir,Ct. Virender, Ct. Pravesh searched for accused at different places and near Bhogal flyover accused was apprehended and arrested and further his State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-27) arrest memo Ex.PW10/A was prepared. As per arrest memo (Ex. PW10/A) accused was arrested at PS Sunlight colony at around 09.30 am in the morning. Therefore, there is contradiction between place of arrest as per arrest memo and as per the testimony of PW18 IO who stated that accused was arrested from near Bhogal flyover on 6.6.10. This witness had stated at the time of arrest that SI Rambir, Ct. Virender and Ct. Pravesh were with him but there is no such statement of Ct. Virender and Ct. Pravesh on record. Further these two important arrest witnesses were not examined by the prosecution. Another witness of arrest SI Rambir had deposed before the court as PW10.
47. This witness PW10 SI Rambir Singh stated in examination in chief that on 6.6.10 he joined investigation with IO PW18 and had interrogated about 1820 suspects in this case at PS. And accused Ajay @ Jai was also interrogated and was arrested on the same day vide Ex. PW10/A. This witness had given another story of arrest which is inconsistent with the story of IO PW18 who stated that he alongwith PW10 and Ct.Virender and Ct Pravesh arrested the accused from Bhogal flyover whereas this witness stated that 1820 suspects were interrogated in PS and thereafter accused Ajay was arrested.
48. This witness PW10 stated that 1820 suspects were interrogated on 6.6.10, this part of the statement also creates doubt on the factum of State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-28) the knowing of the name of the accused Ajay @ Jai from Soni Kumar as an accused prior to accused interrogation in PS.
49. This witness PW10 in cross examination stated that the accused was called on the night of 5.6.10 in PS accompanied by Raju and other persons but he cannot tell the name of other persons. Thus, the factum of arrest as deposed by PW18 IO is totally contradicted by this witness. Hence, the circumstance of arrest of the accused as relied by the prosecution is not reliable and further indicates that the police is concealing material facts about the present case.
50. PW18 IO in cross examination stated that he had not obtained the signature of eye witness Soni Kumar on site plan and further stated that he asked Soni Kumar to sign on site plan and memo but he refused. It is not the case of the prosecution neither the IO in his examination in chief stated that PW5 was taken to the spot for pointing out or for preparing site plan. Neither any other police witness has stated this fact. Therefore there is no question of refusal of PW5 to sign on pointing out memo and site plan. Further the site plan was as per prosecution story prepared even before the police met eye witness PW5.
51. From overall appreciation of evidence, prosecution unable to prove the circumstances relating to the knowing of the identity of deceased State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-29) through Ajay (son of deceased) PW1. And also could not give any credible evidence when they came into contact with PW5 i.e, eye witness Soni Kumar, further testimony of PW5 Soni Kumar is not at all found credible and reliable. Prosecution even failed to prove the circumstances of arrest of accused Ajay Kumar @ Jai.
52. Burden on proof is on prosecution but, prosecution unable to prove its case beyond reasonable doubt, thus accused Ajay @ Jai is granted benefit of doubt and acquitted of charge u/s 302 IPC. Accused is directed to furnish personal bond in sum of Rs. 20,000/ and one surety in the like amount in terms of section 437A Cr.P.C.
Announced in Open Court
On 29th October, 2011 (Ajay Kumar Jain)
ASJ03: SE: NEW DELHI
State Vs. Ajay @ Jai, SC no. 60/10, ( Contd...pg-30)