Delhi District Court
State vs Suraj Sharma on 25 April, 2015
IN THE COURT OF SHRI MANOJ KUMAR : ADDITIONAL
SESSIONS JUDGE4 (SOUTH DISTRICT), NEW DELHI
Sessions Case No. 38/14 (Original No. 54/12)
Unique ID No.: 02406R0203542012
FIR No. 182/12
Police Station : Neb Sarai
In the matter of:
State
VERSUS
Suraj Sharma
S/o Sh. Nakul Sharma
R/o W13/18, Western Avenue,
Sainik Farms,
New Delhi ............ Accused
Date of Institution : 24.8.2012
Date of Reserving judgment : 10.4.2015
Date of pronouncement : 25.4.2015
For State : Mr. WasiurRahman,
Additional Public Prosecutor.
For Defence : Mr. Kamal Deep, Advocate.
Sessions Case No. 38/14 Page No. 1 of 71
JUDGMENT :
Suraj Sharma, aged 22 years, has been committed for trial by Ms. Manisha Tripathy, Metropolitan Magistrate08, South, New Delhi: and so, he stands charged with the commission of offence punishable under sections 302 of the Indian Penal Code, namely, that he, on 21.6.2012, during night time, exact time unknown, at Plot No. W13/18, Sainik Farms, Neb Sarai, New Delhi, committed murder of Bachcha Ram Yadav, son of Chaudhary Yadav by causing injury on his head.
2. The circumstances leading to the committal of the case, and subsequent charge against the accused, as per the record of the case, are that on 21.6.2012, having received copy of daily diary (DD) entry no. 6A (Mark PW4/A and Ex. PW18/A), regarding lying of a person in unconscious state at W13/14 and W13 Lane, Western Avenue, Sainik Farm, Assistant Sub Inspector (ASI) Arun Kumar (PW4), being posted at police station Neb Sarai, alongwith Constable Jagdish Prasad (PW8), reached the spot, that is, W13/18, Sainik Farms, Western Avenue Park, New Delhi, where, they saw that inside the plot, one person, aged about 30 years, was lying dead, whose head was towards West direction and his legs were towards East direction, Sessions Case No. 38/14 Page No. 2 of 71 and some public persons were also present there; that on inquiry from those public persons, the name of the deceased was revealed as Bachcha Ram Yadav; that only one white colour vest was found present on the upper portion of the body of the deceased and the lower portion of the body was naked; that the deceased was lying with his face towards the earth and injury mark was present on his head and also on his back, and plenty of blood was also lying near the head of the deceased; that senior police officers also visited the spot and Crime Team was also called; that on the directions of the senior officers, ASI Arum Kumar endorsed the DD entry vide his endorsement Ex. PW4/A and prepared tehrir and handed over the same to Constable Jagdish Prasad (PW8), who left with the tehrir to the police station for getting the case registered; that after registration of the case, investigation was handed over to Inspector Vinod Pal (PW18); that Inspector Vinod Pal got the spot inspected and photographed through the Crime Team; that he also seized blood stained brick (Ex. P3), bloodstained soil (Ex. P1) and earthcontrol (Ex. P2) after converting the same into pullandas; that before embarking on the investigation, Inspector Vinod Pal came to know that the Chowkidar of W13 Lane, namely, Suraj Sharma was admitted in Sessions Case No. 38/14 Page No. 3 of 71 J.P.N. Trauma Center, so, he having reached the Trama Center obtained his medico legal case (MLC) report, on which the doctor had declared him unfit for making statement, but after some time, Suraj Sharma was discharged; that after his discharge, Suraj Sharma neither came to his residence, that is, W13/18, Western Avenue, Sainik Farms, New Delhi nor he had come to the police station, and his mobile phone was also 'switched off'; that on becoming suspicious, Inspector Vinod Pal deputed police staff at W13/18, Western Avenue, Sainik Farms, New Delhi, and on the night of the same day, that is, 21.6.2012 at about 11.30 pm, Suraj Sharma was apprehended and on interrogation, he pleaded his guilt in commission of murder of Bachcha Ram Yadav, and he was arrested (vide arrest memo Ex. PW16/A) and his disclosure statement (Ex. PW16/C) was recorded; that on the pointing out of accused Suraj Sharma, bloodstained danda (Ex. P4) and bloodstained small knife (Ex. P5) were recovered; that his clothes, which he was wearing at the time of the commission of offence alongwith seal of the hospital and his jamatalashi (Ex. P7) were also seized by the police; that on 23.6.2012, post mortem examination of deceased Bachcha Ram Yadav was got conducted and thereafter, his body was handed over to his relatives; that subsequent Sessions Case No. 38/14 Page No. 4 of 71 opinion was also obtained from the doctor concerned in respect of the recovered danda and brick, and the exhibits of the case were sent to Forensic Science Laboratory (FSL), Rohini, Delhi. After investigation it was concluded that accused Suraj Sharma caused death of deceased Bachcha Ram Yadav, and thus committed offence punishable under section 302 of the Indian Penal Code, and subsequently, on 17.8.2012, a police report under section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was put up before the Metropolitan Magistrate with a view to put the accused on trial..
3. In the light of the police report and the documents filed alongwith the same, the learned Metropolitan Magistrate, having taken cognizance of the offence complied with the provisions of section 207 of Cr.P.C. and committed the case to the Court of Session.
4. On 14.9.2012, after hearing the Additional Public Prosecutor and counsel for the accused, the charge was framed against the accused for his having committed offence punishable under sections 302 of the Indian Penal Code. The charge was read over and explained to the accused to which he did not plead guilty and claimed trial.
5. In support of its case the prosecution got examined PW1 Sessions Case No. 38/14 Page No. 5 of 71 Head Constable (HC) Banwari Lal, PW2 SubInspector (SI) Jitender Kumar, PW3 SI Mahesh Kumar, PW4 ASI Arun Kumar, PW5 Constable Bharat Lal, PW6 HC Suresh Kumar, PW7 Dr. Sanjay Kumar (II), Senior Resident, Department of Forensic Medicine, All India Institute of Medical Sciences (AIIMS), New Delhi, PW8 Constable Jagdish Prasad, PW9 HC Dalbir Singh, PW10 Sh. Harcharan Singh, PW11 Chet Ram (elder brother of deceased Bachcha Ram Yadav), PW12 Raghavram (younger brother of deceased Bachcha Ram Yadav), PW13 Constable Jaiveer Singh, PW14 Dr. Deepti, Senior Resident, Department of Medicine, Trauma Center of the AIIMS, PW15 Constable Mohit Kumar, PW16 SI Paras Nath Verma, PW17 HC Rajender, PW18 Inspector Vinod Pal, PW19 HC Babu Lal and PW20 Ashok Kumar, retired police officer. During the examination of the prosecution witnesses documents Ex. PW1/A, Ex. PW1/B, Ex. PW1/C, Ex. PW2/A, Ex. PW3/A, Ex. PW4/A, Ex. PW4/B, Ex. PW7/A, Ex. PW7/B, Ex. PW7/C, Ex. PW8/DA, Ex. PW9/A, Ex. PW9/DA, Ex. PW11/A, Ex. PW12/A, Ex. PW12/B, Ex. PW13/A1 to Ex. PW13/A5, Ex. PW13/B1 to Ex. PW13/B8, Ex. PW14/A (also Ex. PW14/DA), Ex. PW14/B (also Ex. PW14/DB), Ex. PW15/A, Ex. PW16/A, Ex. PW16/B, Ex. PW16/C, Ex. PW16/D, Ex. Sessions Case No. 38/14 Page No. 6 of 71 PW16/E, Ex. PW16/F, Ex. PW17/A, Ex. PW17/B, Ex. PW18/A, Ex. PW18/B, Ex. PW18/C, Ex. PW19/A, Ex. PW19/B, Ex. PW19/C and Mark PW4/A; and case property Ex. P1, Ex. P2, Ex. P3 (the brick), Ex. P4 (the danda) and Ex. P5 (the knife), Ex. P6 (the mobile phone) and Ex. P7 (collectively) were also tendered in evidence.
6. On 29.8.2014, prosecution evidence was closed and the matter was posted for examination of the accused under section 313 of Cr.P.C. and recording of his statement.
7. Before the commencement of the examination of the accused under section 313 of Cr.P.C., an application under section 311 of Cr.P.C. for calling ASI Ashok Kumar as a prosecution witness was made by the prosecution, and after hearing the Additional Public Prosecutor and counsel for the accused the said application was allowed and Ashok Kumar was examined as PW20. After examination of PW20 Ashok Kumar, on an application made on behalf of the accused, PW18 Inspector Vinod Pal was recalled for his further crossexamination by counsel for the accused.
8. On 14.01.2015, the accused was examined under section 313 of Cr.P.C. and his statement was recorded. During his examination under section 313 of Cr.P.C. accused Suraj Sharma denied the Sessions Case No. 38/14 Page No. 7 of 71 correctness of the incriminating circumstances appearing in the evidence against him. During his examination under section 313 of Cr.P.C. the accused took the defence that on the intervening night of 20.6.2012 and 21.6.2012, he, as a security guard, was on night duty from 8.00 pm to 8.00 am next morning at lane W13, Western Avenue, Sainik Farms, New Delhi, where at around 3.00 am in the night, while he was discharging his duty, as security guard, near the front gate and security booth, he heard some noise of bachao; and he immediately rushed towards the direction from where the noise was coming. During his examination under section 313 of Cr.P.C. the accused further stated that suddenly, he saw that three persons were coming from that side, whom he could not recognize as it was dark. During his examination under section 313 of Cr.P.C. the accused further stated that before he tried to stop them, they started beating him and pushed him, as a result of which, his head had hit the gate of house no. W13/14, Sainik Farms. During his examination under section 313 of Cr.P.C. the accused further stated that he could just raise his hand to ring the bell of that house, and after that he became unconscious. During his examination under section 313 of Cr.P.C. the accused further stated that on 21.6.2012, in the morning, he was picked up by Sessions Case No. 38/14 Page No. 8 of 71 the police from the hospital, and when he regained his consciousness, he found himself in the police station. The accused did not express his desire to lead evidence in his defence.
9. No evidence has been led by the accused in his defence.
10. I have heard Mr. WasiurRehman, Additional Public Prosecutor for the State and Mr. Kamal Deep, Advocate for the accused and have gone through the record of the case carefully.
11. Having drawn my attention on the testimonies of PW1 HC Banwari Lal, PW2 SI Jitender Kumar, PW3 SI Mahesh Kumar, PW4 ASI Arun Kumar, PW5 Constable Bharat Lal, PW6 HC Suresh Kumar, PW7 Dr. Sanjay Kumar (II), PW8 Constable Jagdish Prasad, PW9 HC Dalbir Singh, PW10 Sh. Harcharan Singh, PW11 Chet Ram, PW12 Raghavram , PW13 Constable Jaiveer Singh, PW14 Dr. Deepti, PW15 Constable Mohit Kumar, PW16 SI Paras Nath Verma, PW17 HC Rajender, PW18 Inspector Vinod Pal, PW19 HC Babu Lal, PW20 Ashok Kumar; documents Ex. PW1/A, Ex. PW1/B, Ex. PW1/C, Ex. PW2/A, Ex. PW3/A, Ex. PW4/A, Ex. PW4/B, Ex. PW7/A, Ex. PW7/B, Ex. PW7/C, Ex. PW8/DA, Ex. PW9/A, Ex. PW9/DA, Ex. PW11/A, Ex. PW12/A, Ex. PW12/B, Ex. PW13/A1 to Ex. PW13/A5, Ex. PW13/B1 to Ex. PW13/B8, Ex. PW14/DA, Ex. PW14/DB, Ex. Sessions Case No. 38/14 Page No. 9 of 71 PW15/A, Ex. PW16/A, Ex. PW16/B, Ex. PW16/C, Ex. PW16/D, Ex. PW16/E, Ex. PW16/F, Ex. PW17/A, Ex. PW17/B, Ex. PW18/A, Ex. PW18/B, Ex. PW18/C, Ex. PW19/A, Ex. PW19/B, Ex. PW19/C and Mark PW4/A; and case property Ex. P3, Ex. P4 and Ex. P5, Ex. P6 and Ex. P7 it is submitted by the learned Additional Public Prosecutor that from the circumstances proved by the prosecution it has been proved that on the intervening night of 20.6.2012 and 21.6.2012 and prior to that the accused and the deceased were living together in the same premises. It is further submitted by the learned Additional Public Prosecutor that from the evidence led by the prosecution it has also been proved that on 21.6.2012, in the morning, Bachcha Ram Yadav, as a result of the injury suffered by him on his head, was found dead, and injury was also found on the body of the accused. It is further submitted by the learned Additional Public Prosecutor that to avoid his interrogation by the police, the accused fled away from the Trauma Center, where he was admitted for treatment, and subsequently on 21.6.2012 at about 11:30 pm, he was apprehended near the spot, when he had come to collect his articles. It is further submitted by the learned Additional Public Prosecutor that during the investigation, the accused, pursuant to his disclosure statement got recovered blood Sessions Case No. 38/14 Page No. 10 of 71 stained danda and knife and as per the opinion of Dr. Sanjay KumarI, brick Ex. P3 or danda Ex. P4 may have been used in causing injury to Bachcha Ram Yadav, the deceased, which ultimately resulted in his death. It is further submitted by the learned Additional Public Prosecutor that from the evidence led by the prosecution it has been proved, beyond doubt, that it was the accused who caused death of Bachcha Ram Yadav, the deceased, therefore, he be convicted for commission of offence punishable under section 302 of the Indian Penal Code.
12. Percontra, having drawn my attention on the testimonies of PW1 HC Banwari Lal, PW2 SI Jitender Kumar, PW3 SI Mahesh Kumar, PW4 ASI Arun Kumar, PW5 Constable Bharat Lal, PW6 HC Suresh Kumar, PW7 Dr. Sanjay Kumar (II), PW8 Constable Jagdish Prasad, PW9 HC Dalbir Singh, PW10 Sh. Harcharan Singh, PW11 Chet Ram, PW12 Raghavram , PW13 Constable Jaiveer Singh, PW14 Dr. Deepti, PW15 Constable Mohit Kumar, PW16 SI Paras Nath Verma, PW17 HC Rajender, PW18 Inspector Vinod Pal, PW19 HC Babu Lal, PW20 Ashok Kumar; post mortem report Ex. PW7/A, opinion Ex. PW7/B, photographs Ex. PW8/DA, Ex. PW9/DA and Ex. PW13/A1 to A5, MLC report Ex. PW14/DA of the accused, discharge Sessions Case No. 38/14 Page No. 11 of 71 summary Ex. PW14/DB of the accused, PCR Form Ex. PW15/A, FSL result Ex. PW18/F and record Ex. PW20/A and Ex. PW20/B produced by PW20 Ashok Kumar; and the law laid down in Dhan Raj v. State of Haryana, (2014) 6 SCC 745 and State (Delhi Admn.) v. Chander Pal, 1995 (34) DRJ 92 it is submitted by counsel for the accused that the accused has been falsely implicated in this case, and in neither of the photographs, depicting the scene of crime and the dead body, blood stained brick has been shown. It is further submitted by counsel for the accused that neither in rukka Ex. PW4/A nor in site plans Ex. PW3/A and Ex. PW9/A any brick has been mentioned. It is further submitted by counsel for the accused that the accused was living in the same premises with the deceased and had been working as a watchman in the area. It is further submitted by counsel for the accused that on the night intervening 20.6.2012 and 21.6.2012, the accused was on his duty as a watchman and at about 03.00 am, he heard some noise of bachao, and thereafter, he immediately rushed towards the direction from which the noise was coming and suddenly, he saw three persons coming from that side. It is further submitted by counsel for the accused that the accused could not recognize the said three persons as it was dark and before he could try to stop them, the said three persons Sessions Case No. 38/14 Page No. 12 of 71 started beating him up and pushed him, as a result of which, his head was hit against the gate of House No. W13/14, Sainik Farms. It is further submitted by counsel for the accused that in unconscious condition, the accused was taken to the Trauma Center of the AIIMS, where after his treatment, he was illegally detained by the police and subsequently falsely implicated in the present case. It is further submitted by counsel for the accused that in the morning of 21.6.2012 itself, the accused was detained, but the police showed his arrest on 22.6.2012 at 12.15 am. It is further submitted by counsel for the accused that no recovery was effected at the instance of the accused and the knife Ex. P5, the brick Ex. P3 and the danda Ex. P4 have been planted against him. It is further submitted by counsel for the accused that the accused never made any disclosure statement and the story that the accused committed murder of Bachcha Ram Yadav is a false story. It is also submitted by counsel for the accused that the prosecution has failed to prove the charge against the accused, therefore, the accused is entitled to be acquitted.
13. I have given my thoughtful consideration to the submissions made on behalf of the the parties.
14. The relevant part of section 300 of the Indian Penal Code, Sessions Case No. 38/14 Page No. 13 of 71 which defines 'Murder', reads as follows:
300. Murder.--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
S econdly
--If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
T hirdly
--If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
F ourthly
--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
15. Further relevant part of section 299, which defines 'Culpable homicide', having reference in the definition of murder, reads as follows:
299. Culpable homicide.--Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
16. Before discussing the points which fall for determination, the relevant parts of the testimonies of the witnesses examined by the prosecution may be noticed.
17. To bring home the guilt of the accused the prosecution has examined twenty witnesses. PW1 HC Banwari Lal during his examinationinchief deposed that on 21.6.2012 at about 03.05 am, being posted as Duty Officer, he received an information from the Sessions Case No. 38/14 Page No. 14 of 71 Control Room and recorded the same at Serial No. 6 in Register A. PW1 HC Banwari Lal further deposed that on the same day at about 04.45 am, he received a rukka sent by ASI Arun Kumar, whereupon he put his endorsement Ex. PW1/B and thereafter, on the basis of the said rukka registered first information report (FIR) No. 182/2012 under section 302 of the Indian Penal Code, the copy of which is Ex. PW1/C. PW1 HC Banwari Lal further deposed that the copies of the FIR were sent to the Ilaqa Magistrate as well as senior police officers. During his examination, PW1 HC Banwari Lal also tendered copy of daily diary entry no. 6A, which was exhibited as Ex. PW1/A.
18. PW2 SI Jitender Kumar during his examinationinchief deposed that on 21.6.2012, being incharge of the Mobile Crime Team of South district, having received information from the Control Room, at about 5.30 am, he alongwith his team reached plot no. 13/18, Western Avenue, Sainik Farms, New Delhi, where after entering in the plot, he saw a dead body lying there. PW2 SI Jitender Kumar further deposed that the scene of crime was photographed. PW2 SI Jitender Kumar further deposed that on the back of the head of the body, a deep injury was seen, and there were bruises on the back of the body. PW2 SI Jitender Kumar further deposed that the blood was found Sessions Case No. 38/14 Page No. 15 of 71 fallen around the body, and nearby the dead body, blood stains were also found. PW2 SI Jitender Kumar further deposed that face of the dead body was turned towards the sky and thereafter, constable Jaiveer took photographs of the dead body. PW2 SI Jitender Kumar further deposed that he prepared his report Ex. PW2/A and handed over the same to the investigating officer (IO). During his crossexamination, PW2 SI Jitender Kumar deposed that the photographer had taken eight photographs.
19. PW3 SI Mahesh Kumar during his examination deposed that on 16.7.2012, he was posted as Draftsman in Crime Branch, and on that day at the request of Inspector Vinod Pal, he alongwith him visited 13/18, Sainik Farms, a vacant plot. PW3 SI Mahesh Kumar further deposed that at the pointing out of Inspector Vinod Pal, he had prepared rough notes and took measurements, on the basis of which, on 23.7.2012, he prepared scaled site plan Ex. PW3/A. PW3 SI Mahesh Kumar further deposed that he had handed over the said scaled site plan to Inspector Vinod Pal.
20. PW4 ASI Arun Kumar during his examination deposed that on 21.6.2012, he was on emergency duty at police station Neb Sarai, and on that day, DD no. 6A was assigned to him for preliminary Sessions Case No. 38/14 Page No. 16 of 71 inquiry. PW4 ASI Arun Kumar further deposed that he alongwith Constable Jagdish reached the spot, that is, W13/18, Sainik Farms, Western Avenue Park, where an iron gate was affixed on the main gate and there was a side gate, by which an entry could be made inside the farm house. PW4 ASI Arun Kumar further deposed that seveneight persons were standing there, and from the gate, one person was seen lying there. PW4 ASI Arun Kumar further deposed that he entered into the farm house from side and seen a dead body lying there, whose face was towards the earth; there was a mark of injury on the back of the head and there were bruises on its back. PW4 ASI Arun Kumar further deposed that deceased was wearing a white colour baniyan and his lower portion was naked; his head was towards West side and legs were on Eastern side. PW4 ASI Arun Kumar further deposed that senior officers had also visited the spot, and crime team was called. PW4 ASI Arun Kumar further deposed that at the instructions of senior officers, he had put his endorsement Ex. PW4/A on the copy of DD entry and sent it through Constable Jagdish for registration of case. PW4 ASI Arun Kumar further deposed that after registration of the case, the Constable returned to the spot and the investigation was handed over to Inspector Vinod Pal, who arrived at the scene of crime Sessions Case No. 38/14 Page No. 17 of 71 before sending the rukka. PW4 ASI Arun Kumar further deposed that Inspector Vinod Pal, in his presence, had taken into possession blood stained earth Ex. P1, earth control Ex. P2 as well as bloodstained brick Ex. P3 lying there and prepared seizure memo Ex. PW4/B. During his crossexamination PW4 ASI Arun Kumar deposed that when on 21.9.2012 at about 03.10 am, he reached the spot, the gate was locked from inside. During his crossexamination PW4 ASI Arun Kumar affirmed that there was no small gate attached to the main gate, and further deposed that he went inside by climbing the side wall. During his crossexamination PW4 ASI Arun Kumar further deposed that at the spot, he saw that the blood was lying scattered and some bricks were also lying there, whereupon, blood stains were found. During his crossexamination PW4 ASI Arun Kumar further deposed that the crime team arrived at the spot at 05.30 am and stayed for about 30 to 40 minutes, and photographs were taken by the crime team before 06.20 am. During his crossexamination PW4 ASI Arun Kumar further deposed that the bloodstained brick was lying ahead of the head of the deceased on Western side, and the other bricks were lying all around the body. During his crossexamination PW4 ASI Arun Kumar further deposed that the bloodstained brick was having hair Sessions Case No. 38/14 Page No. 18 of 71 stuck upon it, were taken into possession by the IO. During his cross examination PW4 ASI Arun Kumar further deposed that when he reached the spot, there was no light and the neighbour had provided a torch to see the body and the place of occurrence. During his cross examination PW4 ASI Arun Kumar further deposed that he had not noted down the names and addresses of seveneight persons found at the spot. During his crossexamination PW4 ASI Arun Kumar also affirmed that he had not mentioned any bloodstained brick in his rukka sent for registration of the case. During his crossexamination PW4 ASI Arun Kumar further deposed that he did not remember the time when Ex. PW4/B was prepared. During his crossexamination PW4 ASI Arun Kumar further deposed that the crime team had inspected the bloodstained brick and the blood scattered around the body.
21. PW5 Constable Bharat Lal during his examination deposed that on 02.7.2012, having been entrusted with two sealed pullandas sealed with the seal of VP, containing one danda and one brick, by the MHC (M), he had taken the said two sealed pullandas alongwith an application to the mortuary of the AIIMS and deposited the same in the mortuary. PW5 Constable Bharat Lal further deposed Sessions Case No. 38/14 Page No. 19 of 71 that he deposited the receipts of the said pullandas in the police malkhana. PW5 Constable Bharat Lal further deposed that during his custody, the case property remained intact.
22. PW6 HC Suresh Kumar during his examination deposed that on 04.7.2012, as per the direction of the IO, he had deposited ten sealed pullandas, FSL Form and some documents in the FSL, Rohini after taking the same from the malkhana vide road certificate (RC) no. 112/21/10. PW6 HC Suresh Kumar further deposed that he had handed over the receipt to the Malkhana Moharrar, and during his custody, the case property remained intact.
23. PW7 Dr. Sanjay KumarII during his examination deposed that Dr. Sanjay KumarI was Senior Resident in the Department of Forensic Medicine, AIIMS, who had left the hospital and his present whereabouts were not known. PW7 Dr. Sanjay KumarII further deposed that he had worked with Dr. Sanjay Kumar I, so he was acquainted with his signature. PW7 Dr. Sanjay KumarII further deposed that post mortem report no. 420/12 Ex. PW7/A bore signature of Dr. Sanjay KumarI at point A and the said report was prepared by him (Dr. Sanjay KumarI). PW7 Dr. Sanjay KumarII further deposed that in the opinion of Dr. Sanjay KumarI, the cause of Sessions Case No. 38/14 Page No. 20 of 71 death of the deceased was severe head injury caused by blunt force/impact; and all injuries except Injury no. 6, mentioned in report Ex. PW7/A, were ante mortem in nature. Having seen the opinion no. 509 dated 03.7.2012 and the sketch of the weapon of offence enclosed therewith, PW7 Dr. Sanjay KumarII further deposed that the said opinion Ex. PW7/B and the sketch Ex. PW7/C bore signatures of Dr. Sanjay KumarI at point A. PW7 Dr. Sanjay KumarII further deposed that the possibility that the injury sustained by the deceased was inflicted by either of two weapons, mentioned in Ex. PW7/C, could not be ruled out. During his crossexamination PW7 Dr. Sanjay KumarII deposed that at the time of the post mortem examination, he was not present and he had no personal knowledge about the post mortem report prepared by Dr. Sanjay KumarI.
24. PW8 Constable Jagdish Prasad during his examination inchief deposed that on 21.6.2012, he was posted as Constable at police station Neb Sarai, and on emergency duty his duty timings were 08.00 pm to 08.00 am. W8 Constable Jagdish Prasad further deposed that on that day, the Duty Officer assigned the information recorded at serial no. 6 in Register A and handed over the said call to ASI Arun Kumar. W8 Constable Jagdish Prasad further deposed that he Sessions Case No. 38/14 Page No. 21 of 71 alongwith ASI Aarun Kumar went to W13/18, Lane Western Avenue, Sainik Farms and found a large number of people present there, who told that a person was lying inside the plot and another one had been taken by the PCR. W8 Constable Jagdish Prasad further deposed that he alongwith ASI Arun Kumar went inside the plot and found a person lying there, whose face was towards earth, and he was wearing only a baniyan of white colour. W8 Constable Jagdish Prasad further deposed that ASI Arun Kumar had written a tehrir and sent him to the police station for registration of FIR. W8 Constable Jagdish Prasad further deposed that he went to the police station and handed over the tehrir to the Duty Officer for registration of FIR. W8 Constable Jagdish Prasad further deposed that the Duty Officer brought the said fact to the knowledge of senior officer and thereafter, he had registered the case. W8 Constable Jagdish Prasad further deposed that alongwith the tehrir, he returned to the spot, where senior officers had also arrived and he asked him to stand at a distance from the body so as to stop the public from searching or interfering with the dead body. W8 Constable Jagdish Prasad further deposed that the crime team arrived there. W8 Constable Jagdish Prasad further deposed that at about 06.50 pm, he was sent to the Trauma Center alongwith the dead body, Sessions Case No. 38/14 Page No. 22 of 71 and he deposited the dead body in the Emergency. W8 Constable Jagdish Prasad further deposed that at about 8.00 or 8.30 pm, he returned to the police station and handed over three pullandas and one sample seal that were given to him by the doctor to MHC (M) on 21.6.2012.
25. PW9 HC Dalbir Singh during his examinationinchief deposed that on 21.6.2012, he alongwith Inspector Vinod Pal went to the spot, that is, W13/18, Lane Western Avenue, Sainik Farms, where a number of police officers were present and a large number of public were also present. PW9 HC Dalbir Singh further deposed that inside the gate, he found a dead body lying there. PW9 HC Dalbir Singh further deposed that he also came to know that one injured was taken by the PCR to the hospital. PW9 HC Dalbir Singh further deposed that the dead body was lying with face towards the earth and was wearing only white colour baniyan and its remaining part was naked. PW9 HC Dalbir Singh further deposed that the blood was lying near the head of the body. PW9 HC Dalbir Singh further deposed that he alongwith Inspector Vinod Pal immediately went to the Trauma Center, where Inspector Vinod Pal had collected the MLC report of unknown person, who was declared unfit for statement. PW9 HC Dalbir Singh further Sessions Case No. 38/14 Page No. 23 of 71 deposed that doctor had also given one sealed pullanda with sample seal and the same was taken into possession by Inspector Vinod Pal. PW9 HC Dalbir Singh further deposed that from the hospital, he alongwith Inspector Vinod Pal returned to the spot, and by then, Constable Jagdish, after registration of the case, had returned to the spot and had handed over the original tehrir and copy of the FIR to Inspector Vinod Pal, and thereafter, the Crime Team had inspected the spot. PW9 HC Dalbir Singh further deposed that thereafter, Constable Jagdish alongwith the dead body, was sent for its preservation. PW9 HC Dalbir Singh further deposed that the IO prepared the site plan and took into his possession the bloodstained earth and earth control, and converted the same into sealed pullandas by putting them in plastic bags. PW9 HC Dalbir Singh further deposed that the IO had also taken into possession one bloodstained brick having hair stuck thereon, which was lying there, and converted the same into sealed pullanda with the seal of VP. PW9 HC Dalbir Singh further deposed that thereafter, the IO tried to ascertain the culprit, but he did not find any clue. PW9 HC Dalbir Singh further deposed that thereafter, he alongwith the IO returned to the police station, where Inspector Vinod Pal recorded his statement. During his crossexamination, PW9 HC Sessions Case No. 38/14 Page No. 24 of 71 Dalbir Singh deposed that he alongwith Inspector Vinod Pal reached the spot, that is, W13/14, Lane Western Avenue, Sainik Farms at around 04.40 to 04.45 am; that there was a gate affixed on the plot and when he entered Lane 13 from the main road, the said gate was opened; that there was a distance of about 100 to 150 meter from the entry to the spot. During his crossexamination, PW9 HC Dalbir Singh further deposed that a brick was lying ahead of the head of the dead body and small branches of tree were also lying there. During his crossexamination, PW9 HC Dalbir Singh further deposed that the head of the dead body was towards West side and its feet were towards East side and it was parallel to the gate; that the brick was at the distance of only half to one feet ahead of the head of the deceased while lying on stomach; that he had not noticed any other bricks either on the right side of the body or at the left side of the body; that the dead body was at a distance of 15 to 20 feet from the gate; that photographs were taken by the crime team in his presence. During his crossexamination, when photograph Ex. PW/DA was shown to PW9 HC Dalbir Singh and he was asked whether any brick was shown in it, he admitted that no brick was shown in the said photograph ahead of the deceased. During his crossexamination, PW9 HC Dalbir Singh Sessions Case No. 38/14 Page No. 25 of 71 further deposed that the Crime Team had left the spot at about 7.45 am, after which the IO prepared the site plan and the brick was taken into possession by the IO. During his crossexamination after seeing site plan Ex. PW9/A, PW9 HC Dalbir Singh admitted that the position of the brick was not shown. During his crossexamination PW9 HC Dalbir Singh further deposed that there were neighbour who had collected there and residing in the nearby houses; and that there were 10 or 15 people who had collected there when he reached.
26. PW10 Harcharan Singh during his examinationinchief deposed that on 21.6.2012 at about 03.00 am, he was sleeping in his house bearing no. W13/14, Western Avenue, Sainik Farm, New Delhi, when his door bell was rung several times, and consequently he woke up. PW10 Harcharan Singh further deposed that he also got his two sons awaken from their sleep and had seen outside from the gap of the wooden door affixed at his house and found one person, who was calling them, had fallen down ahead of his gate. PW10 Harcharan Singh further deposed that through the mobile phone of his wife, he informed the police and also informed the neighbour. PW10 Harcharan Singh further deposed that after five minutes, the police arrived at the spot and thereafter only, he had got opened his gate. Sessions Case No. 38/14 Page No. 26 of 71 PW10 Harcharan Singh further deposed that later on, he came to know that the man was guard/watchman of the street. During his cross examination PW10 Harcharan Singh deposed that he had been living at W13/14, W13, Lane Western Avenue, Sainik Farms, New Delhi for last 10 or 12 years and there was only one entry gate at Lane 13, which is black in colour. During his crossexamination PW10 Harcharan Singh further deposed that there was security guard booth just adjacent to the entry gate of Lane 13. During his crossexamination PW10 Harcharan Singh further deposed that he came alone outside and saw from the strip of the door that a person was lying ahead of the gate; and that at that time he did not know about the identity of the person lying outside of the gate. During his crossexamination PW10 Harcharan Singh further deposed that he did not notice any blood lying outside his gate.
27. PW11 Chet Ram, who is the elder brother of deceased Bachcha Ram Yadav, during his examination, deposed that after coming to know about the death, he came to Delhi and identified the dead body of his younger brother Bachcha Ram Yadav on 23.6.2012 in the mortuary of the hospital, and police recorded his statement. During his crossexamination, PW11 Chet Ram deposed that when he Sessions Case No. 38/14 Page No. 27 of 71 came to Delhi, he was accompanied by his brother Raghavram, wife of the deceased and his son, and the dead body was received by them. During his crossexamination, PW11 Chet Ram further deposed that he had also taken the belongings of his deceased brother from his rented room.
28. PW12 Raghavram, who is the younger brother of deceased Bachcha Ram Yadav, during his examination, also deposed on the same lines as stated by PW11 Chet Ram in his examinationin chief as well as during his crossexamination.
29. PW13 Constable Jaiveer Singh during his examinationin chief deposed that on 21.6.2012, being called by the IO of this case, he visited W13/18, Sainik Farms, where a dead body of a male was found lying in naked condition and it was wearing a baniyan only. PW13 Constable Jaiveer Singh further deposed that there was head injury visible on the back side of the head of the dead body and blood was also lying on the ground near the head of the dead body. PW13 Constable Jaiveer Singh further deposed that he had taken eight photographs of the dead body and its surroundings, out of which, seven photographs were developed, whereas one negative was washed out; that out of the seven photographs, two photographs were Ex. Sessions Case No. 38/14 Page No. 28 of 71 PW8/DA and Ex. PW9/DA and the rest of five photographs were Ex. PW13/A1 to A5, and the eight negatives of those photographs were Ex. PW13/B1 to B8. During his crossexamination PW13 Constable Jaiveer Singh deposed that the photographs were taken by him on the asking of the incharge of the crime team, and he had not visited anywhere else except the spot/scene of crime. During his cross examination PW13 Constable Jaiveer Singh further deposed that that he remained at the spot between 5.00 am and 5.45 am and all the photographs were taken by him between the said period.
30. PW14 Dr. Deepti during her examinationinchief deposed that on 21.6.2012, she was posted as Senior Resident in the Department of Medicine, Trauma Center of the AIIMS, and on that day at about 04.01 am, one unknown person was brought by ASI Ashok Kumar in injured condition, who was examined by her at 04.15 am. PW14 Dr. Deepti further deposed that on examination of the injured, she found abrasion around upper lip of the injured and there was lacerated wound on left index finger of size 1 x 0.5 cm x 0.5 cm, and in in this regard, she (PW14 Dr. Deepti) prepared MLC report Ex. PW14/A (also exhibited as Ex. PW14/DA). During her examination PW14 Dr. Deepti also sought to prove discharge summary Ex. Sessions Case No. 38/14 Page No. 29 of 71 PW14/B (also exhibited as Ex. PW14/DB) of the injured, which was not submitted alongwith the police report, and was existing in the police file. During her crossexamination PW14 Dr. Deepti deposed that on 20.6.2012, she was on duty from 08.00 pm to 08.00 am on the next day, that is, 21.6.2012. During her crossexamination PW14 Dr. Deepti further deposed that as per the MLC report no. 315458, which is in the name of unknown, the condition of the patient was that he was disoriented and was not fit for statement. During her cross examination PW14 Dr. Deepti further deposed that in the MLC report she did not mention as to what type and colour of clothes the injured was wearing, and that she also did not mention the blood stains on the clothes which the injured/patient was wearing at the time of his examination. During her crossexamination PW14 Dr. Deepti further deposed that she did not remember the name of the police official who visited for blood sample. During her crossexamination PW14 Dr. Deepti further deposed that she did not remember the name of the nursing staff on duty to whom she had instructed to collect the blood sample. During her crossexamination PW14 Dr. Deepti further deposed that the name of the said nursing staff, who collected the blood sample of the injured was not mentioned in MLC report Ex. Sessions Case No. 38/14 Page No. 30 of 71 PW14/DA and discharge summary Ex. PW14/DB of the injured. During her crossexamination PW14 Dr. Deepti further deposed that the blood sample was collected by the nursing staff and thereafter, handed over the same to the Duty Constable, posted at the Trauma Center. During her crossexamination PW14 Dr. Deepti further deposed that she noticed only one wound on the person of the injured and the same was recorded in the MLC report of the injured. During her crossexamination PW14 Dr. Deepti further deposed that the discharge summary was prepared by Dr. Bhanawath Gopichand, Junior Resident, on the instructions of the onduty Chief Medical Officer (CMO). During her crossexamination PW14 Dr. Deepti further deposed that no instructions were taken by the said Dr. Bhanawath Gopichand from her to prepare the discharge summary Ex. PW14/DB. During her crossexamination PW14 Dr. Deepti further deposed that she did not remember whether after initial examination of the patient, she had relooked him or not. During her cross examination PW14 Dr. Deepti further deposed that she could not tell from the documents Ex. PW14/DA and Ex. PW14/DB as to when the patient was shifted to 'Yellow Area' in the emergency room before discharge. During her crossexamination PW14 Dr. Deepti further Sessions Case No. 38/14 Page No. 31 of 71 deposed that according to Ex. PW14/DA and Ex. PW14/DB the patient suffered minor head injury. During her crossexamination PW14 Dr. Deepti further deposed that she did not remember the name and number of the police officials, who visited the hospital to see the patient. During her crossexamination PW14 Dr. Deepti further deposed that Hematological and Biochemical investigations were also done at the time of presentation in the hospital.
31. PW15 Constable Mohit Kumar during his examinationin chief deposed that on 21.6.2012, being posted in Police Control Room and being on duty in the intervening night of 20/21.6.2012, at 03:04:13 hours, a call was received from mobile phone number 9899019922 to the effect that 'ek admi unconscious hai yaha par' and the place disclosed was W13/14, W13 Lance, Western Avenue, Sainik Farms, New Delhi. PW15 Constable Mohit Kumar during his examination further deposed that this information was conveyed to police station Neb Sarai, and the computergenerated PCR form in this regard is Ex. PW15/A.
32. PW16 SI Paras Nath Verma during his examinationin chief deposed that on the intervening nigh of 21/22.6.2012, being posted in police station Neb Sarai, he alongwith Inspector Vinod Pal Sessions Case No. 38/14 Page No. 32 of 71 joined the investigation of this case and went to W13/18, Western Avenue, Sainik Farms, where HC Rajender Singh was present and met them, and handed over accused Suraj Sharma to Inspector Vinod Pal, the IO of the case. PW16 SI Paras Nath Verma further deposed that Inspector Vinod Pal interrogated the accused and arrested him vide arrest memo Ex. PW16/A and conducted his personal search vide memo Ex. PW16/B. PW16 SubInspect SI Verma further deposed that the accused made disclosure statement Ex. PW16/C, pursuant to which, he got a danda Ex. P4 recovered from the farm house, on the left side of the main gate entrance. PW16 SI Paras Nath Verma further deposed that the danda was converted into cloth parcel and it was sealed with the seal of VP and seized vide seizure memo Ex. PW16/D. PW16 SI Paras Nath Verma further deposed that the length of the danda was about 4 / 5 feet. PW16 SI Paras Nath Verma further deposed that the accused also got recovered one knife Ex. P5 from left side of the building structure and the sketch of the knife is Ex. PW16/E. PW16 SI Paras Nath Verma further deposed that the knife was converted into cloth parcel and it was sealed with the seal of VP and seized vide memo Ex. PW16/F. PW16 SI Paras Nath Verma further deposed that thereafter, they came back to police station and Sessions Case No. 38/14 Page No. 33 of 71 his statement was recorded. During his crossexamination PW16 SI Paras Nath Verma deposed that he did not remember as to when the information was received in the police station. During his cross examination PW16 SI Paras Nath Verma further deposed that the IO was informed by Constable Ravinder (sic) at about 11.30 pm on 21.6.2012 and within 15 minutes, they reached the spot, that is, W13/18, Sainik Farms, where HC Rajender produced one accused to the IO, who had interrogated the accused for about half an hour and also recorded his disclosure statement. During his crossexamination PW16 SI Paras Nath Verma further deposed that he could not tell the exact number of houses adjacent to the plot in question. During his crossexamination PW16 SI Paras Nath Verma further deposed that there was no shop in lane no. W13; and that the lane was having the black colour iron gate; and that the plot was also having a black colour iron gate; that the iron gate of the plot 13/18 was wide open at that time. During his crossexamination PW16 SI Paras Nath Verma further deposed that there were no public persons gathered when he reached there. During his crossexamination PW16 SI Paras Nath Verma further deposed that there were houses adjacent to the plot, but he had not asked any person from the adjacent houses of the lane 13 to Sessions Case No. 38/14 Page No. 34 of 71 join the investigation. During his crossexamination PW16 SI Paras Nath Verma further deposed that they had left the spot for the police station at about 2.30 am or 2.45 am.
33. PW17 HC Rajender during his examinationinchief deposed that on the intervening night of 21/22.6.2012, he was deputed at W13/18, Western Avenue, Sainik Farms, South Delhi by Inspector Vinod Pal as murder had taken place there. PW17 HC Rajender further deposed that at that time, the suspect was not present in the hospital as he had gone somewhere else from there; and that the suspect was admitted in the hospital as he had also sustained injury. PW17 HC Rajender further deposed that on 21.6.2012 at about 11.30 pm, suspect Suraj Sharma, son of Nakul Sharma, came on plot bearing no. W13/18, Western Avenue, Sainik Farms. PW17 HC Rajender further deposed that he stopped him and informed about his arrival to Inspector Vinod Pal from his mobile phone, and having received the information, Inspector Vinod Pal alongwith SI Paras Nath Verma came there, and Inspector Vinod Pal interrogated suspect Suraj Sharma in his (PW17 HC Rajender) presence. PW17 HC Rajender further deposed that suspect Suraj Sharam made his disclosure statement Ex. PW16/C about the present case, and Inspector Vinod Pal Sessions Case No. 38/14 Page No. 35 of 71 arrested accused Suraj Sharma vide arrest memo Ex. PW16/A and his personal search was conducted vide memo Ex. PW16/B, and during his personal search, one mobile phone of black colour, make Nokia Ex. P6 was recovered, which was taken into possession by the IO. PW17 HC Rajender further deposed that as per the disclosure of the accused, the accused led them in the area of bushes at a distance of 1520 meters and from the gate of the plot, where he ( PW17 HC Rajender) was deputed, and he (the accused) pointed out one danda Ex. P4 lying in the bushes, saying that the same was the weapon of the offence. PW17 HC Rajender further deposed that the said danda was lifted by the IO, converted into a cloth parcel, sealed with the seal of VP and seized vide seizure memo PW16/D. PW17 HC Rajender further deposed that the length of the danda was 54 inches and its circumference was about 5 ½ inches. PW17 HC Rajender further deposed that thereafter, the accused led them in the area of bushes, old structure and pointed out towards a knife Ex. P5 which was lying at a distance of 78 meters, in North direction from the old structure. PW17 HC Rajender further deposed that the IO lifted the knife, the weapon of offence, length of which was 22.5 cm and its handle was made of wooden; and that the length of its handle was 10 cm and Sessions Case No. 38/14 Page No. 36 of 71 width of blade was 2.3 cm. PW17 HC Rajender further deposed that some part of the knife was broken from the middle. PW17 HC Rajender further deposed that he noticed blood stains on the handle of the knife and on the direction and dictation of the IO, he prepared the sketch Ex. PW16/E of the knife. PW17 HC Rajender further deposed that thereafter, the IO converted the knife into a cloth parcel sealed with the seal of VP and seized vide seizure memo Ex. PW16/F, and the IO had kept the seal in his possession. During his examination PW17 HC Rajender further deposed that on 22.6.2012 at about 10.00 am, he had reached the Trauma Center alongwith the IO, where they remained in wait for arrival of the family members of the deceased. During his examination PW17 HC Rajender further deposed that at about 3.45 pm, two family members, namely, Chet Ram and Raghav Ram of the deceased came in the Trauma Center. PW17 HC Rajender further deposed that the IO instructed both the family members of the deceased to come next day in the Trauma Center for the purpose of postmortem examination as on that day post mortem was not possible due to odd hours. PW17 HC Rajender further deposed that the IO took him to the Duty Constable, Trauma Center, and the Duty Constable handed over one brown wallet to the IO, which was checked by the IO Sessions Case No. 38/14 Page No. 37 of 71 and it was containing Rs. 111/ and one currency note of Nepal in denomination of 10 and some visiting cards. PW17 HC Rajender further deposed that the Duty Constable also handed over one sealed parcel containing clothes and one sample seal to the IO. During his examination PW17 HC Rajender further deposed that the IO seized the aforesaid sealed parcel and the sample seal vide Ex. PW17/A and the wallet vide seizure memo Ex. PW17/B. During his crossexamination PW17 HC Rajender deposed that at the time of his arrest the accused was wearing a jeans and shirt.
34. PW18 Inspector Vinod Pal during his examinationin chief deposed that on 21.6.2012, being posted as ATO at police station Neb Sarai, he alongwith HC Dalbir Singh reached W13/18, Sainik Farms, where ASI Arun Kumar and Constable Jagdish were already present as they had reached there in pursuance of DD no. 6A. PW18 Inspector Vinod Pal further deposed that one male dead body was lying inside the said plot at a distance of about six meters from the main gate of the plot and the face of the dead body was lying towards the surface, and the head of the dead body was towards West direction and its feet were towards East direction. PW18 Inspector Vinod Pal further deposed that the dead body was wearing only baniyan. PW18 Sessions Case No. 38/14 Page No. 38 of 71 Inspector Vinod Pal further deposed that he noticed injury on the head of the dead body and blood was also lying near its head, one blood stained brick with some hair was also lying near the dead body and 'GBC' was engraved on the brick. PW18 Inspector Vinod Pal further deposed that the name of the deceased came into notice as Bachcha Yadav, who was Chowkidar of the plot, and no eyewitness met there. PW18 Inspector Vinod Pal further deposed that ASI Arun Kumar made endorsement Ex. PW4/A on the basis of DD no. 6A Ex. PW18/A to get registered the FIR under section 302 of the Indian Penal Code, and Constable Jagdish was sent to the police station alongwith rukka for registration of the FIR. PW18 Inspector Vinod Pal further deposed that intimation was also passed on by him to call Crime Team official at the spot, and he also informed about the present case to senior police officials. PW18 Inspector Vinod Pal further deposed that he also came to know at the spot from the public that there was one injured and he was taken to the hospital by the PCR van from there. PW18 Inspector Vinod Pal further deposed that he alongwith HC Dalbir reached the Trauma Center and with the help of Duty Constable, collected the MLC report Mark Z (Ex. PW14/DA) of the injured, and from the MLC report, it came to his notice that the Sessions Case No. 38/14 Page No. 39 of 71 injured was declared unfit for statement. PW18 Inspector Vinod Pal further deposed that at that time, the Duty Constable had handed over a sealed parcel containing blood sample of unknown injured alongwith sample seal, which he took into custody vide memo Ex. PW18/B. PW18 Inspector Vinod Pal further deposed that they left the hospital, leaving the unknown injured admitted there and reached the spot, where at that time, crime team officials were busy with their job. PW18 Inspector Vinod Pal further deposed that in the meantime, Constable Jagdish came to the spot alongwith the rukka Ex. PW4/A and copy of the FIR Ex. PW1/C and he delivered the same to him for investigation. PW18 Inspector Vinod Pal further deposed that the crime team inspected the scene of crime and Constable Jaiveer took seven photographs of the scene of crime and the dead body. PW18 Inspector Vinod Pal further deposed that SI Jitender, Crime Team in charge also inspected the spot and prepared scene of crime (SOC) report Ex. PW2/A and handed over the same to him with the advice to lift brick having blood stains, bloodsmeared earth and earth control and also to send the dead body for post mortem examination. PW18 Inspector Vinod Pal PW18 Inspector Vinod Pal further deposed that the seven photographs Ex. PW13/A1 to Ex. PW13/A5, Ex. PW8/DA Sessions Case No. 38/14 Page No. 40 of 71 and Ex. PW9/DA were depicting the scene of crime and the dead body of the present case. PW18 Inspector Vinod Pal further deposed that he sent the dead body to mortuary in custody of Constable Jagdish alongwith written request Ex. PW18/C to get preserved the same for 72 hours and also directed Constable Jagdish to perform duty as a guard in the mortuary for the dead body. PW18 Inspector Vinod Pal further deposed that he recorded the statements of Crime Team in charge as well as photographer and they left the spot. PW18 Inspector Vinod Pal further deposed that he, after inspection of the spot, prepared site plan Ex. PW9/A, showing point A where the dead body was lying. PW18 Inspector Vinod Pal further deposed that he also lifted brick, bloodsmeared earth and earth control from the spot, converted the same into three separate parcels, sealed the same with the seal of VP and seized vide seizure memo Ex. PW4/A in presence of ASI Arun and HC Dalbir. PW18 Inspector Vinod Pal further deposed that thereafter, they came back to the police station and deposited four parcels with MHC (M) in intact condition, recorded the statements of ASI Arun and HC Dalbir. PW18 Inspector Vinod Pal further deposed that on the same day at about 3.00 pm, he reached Trauma Center to meet the injured, but he was found missing from the Sessions Case No. 38/14 Page No. 41 of 71 hospital. PW18 Inspector Vinod Pal further deposed that he made inquiry about the unknown but no clue came forward. PW18 Inspector Vinod Pal further deposed that thereafter, he reached the spot, but he was not found even there. PW18 Inspector Vinod Pal further deposed that he returned to the police station, and deputed beat Head Constable Rajender at the spot as a guard in search of the unknown injured. PW18 Inspector Vinod Pal further deposed that at about 11.30 pm on that day, HC Rajender informed him that the unknown injured, whose name came to be known as Suraj Sharma, had come at the spot and he was apprehended by HC Rajender. PW18 Inspector Vinod Pal further deposed that Suraj Sharma was earlier known to the Beat Constable as he was the watchman of lane no. 13, Sainik Farms. PW18 Inspector Vinod Pal further deposed that on receiving telephonic information from HC Rajender, he alongwith SI Paras Nath reached there, and interrogated Suraj Sharma, who told him that he, by wielding danda and brick killed Bachcha Ram Yadav. PW18 Inspector Vinod Pal further deposed that he arrested accused Suraj Sharma vide arrest memo Ex. PW16/A and his personal search was conducted by him vide memo Ex. PW16/B, and in his personal search, one black colour mobile phone make Nokia was recovered, which was taken into Sessions Case No. 38/14 Page No. 42 of 71 custody by him. PW18 Inspector Vinod Pal further deposed that he again interrogated the accused and whatsoever the accused told to him, same was recorded in his disclosure statement Ex. PW16/C. PW18 Inspector Vinod Pal further deposed that the accused revealed that he could get recovered weapon of offence, that is, danda and a small knife from the bushes from nearby area. PW18 Inspector Vinod Pal further deposed that in pursuance to his disclosure statement, the accused led him, SI Paras Nath and HC Rajender towards bushes at a distance of 6070 feet from the main gate of the said plot and he pointed out towards one danda Ex. P4 and produced the same before him saying that it was the weapon of the offence. PW18 Inspector Vinod Pal further deposed that he noticed blood stains on both the ends of the danda and he took measurement of danda, converted it into cloth parcel, sealed the same with the seal of VP and seized vide memo Ex. PW16/D. PW18 Inspector Vinod Pal further deposed that the total length of the danda was about 1.25 meter. PW18 Inspector Vinod Pal further deposed that in pursuance to his disclosure statement, the accused further led them towards an old structure in North direction and pointed out one knife Ex. P5 lying in the bushes at a distance of 1520 from there and produced the same before him, Sessions Case No. 38/14 Page No. 43 of 71 and he (PW18 Inspector Vinod Pal) took measurement of the knife and noticed blood stains on it. PW18 Inspector Vinod Pal further deposed that the length of the knife was about 23 cm, and its handle was wooden. PW18 Inspector Vinod Pal further deposed that he prepared sketch Ex. PW16/E of the knife, converted the knife into cloth parcel, sealed with the seal of VP and seized vide memo Ex. PW16/F. PW18 Inspector Vinod Pal further deposed that as per the accused, the said knife was used by the deceased in his defence and the accused had sustained a small injury on his hand. PW18 Inspector Vinod Pal further deposed that on completion of the said recovery proceedings, they left the bushes area and reached the police station, where he deposited two sealed parcels and one mobile phone with MHC (M) and recorded statements of SI Paras Nath Verma and HC Rajender. PW18 Inspector Vinod Pal further deposed that on the same day, the accused was produced before the court concerned and he was sent to judicial custody by learned Metropolitan Magistrate. PW18 Inspector Vinod Pal further deposed that he alongwith HC Rajender went to the Trauma Center of the AIIMS and met Duty Constable there, who handed over to him, brown wallet containing Rs. 111/, one currency note of Rs. 10/ of Nepal and some visiting cards. PW18 Inspector Sessions Case No. 38/14 Page No. 44 of 71 Vinod Pal further deposed that he took the same into possession without sealing. PW18 Inspector Vinod Pal further deposed that the said wallet belonged to the accused, who remained admitted in the hospital as unknown, and he prepared seizure memo Ex. PW17/B in this regard. PW18 Inspector Vinod Pal further deposed that one sealed parcel duly sealed with the seal of hospital containing clothes alongwith sample seal were also handed over by the Duty Constable to him which were seized vide memo Ex. PW17/A. PW18 Inspector Vinod Pal further deposed that the clothes contained in the said parcel also belonged to the accused as told to him by Duty Constable when the accused was admitted as unknown injured in the hospital and doctor had seized his wearing clothes having blood stains. PW18 Inspector Vinod Pal further deposed that thereafter, they returned to the police station and deposited the said sealed parcels and wallet with MHC (M) in intact condition and recorded statement of HC Rajender. PW18 Inspector Vinod Pal further deposed that on 23.6.2012, he got the post mortem examination of the body of the deceased conducted at mortuary at J.P.N. Apex Trauma Center, AIIMS, New Delhi. PW18 Inspector Vinod Pal further deposed that the autopsy surgeon had handed over him the scalp hair, blood in gauze and the clothes of the Sessions Case No. 38/14 Page No. 45 of 71 deceased in sealed condition alongwith the sample seal, and he had taken the same into his possession vide memo Ex. PW 18/D. PW18 Inspector Vinod Pal further deposed that the dead body was identified by the brothers of the deceased, namely, Sh. Raghavram and Sh. Chet Ram and he recorded their statements Ex. PW12/A and Ex. PW11/A respectively. PW18 Inspector Vinod Pal further deposed that the dead body of the deceased was handed over to his brother Raghav Ram vide handing over memo Ex. PW12/B. PW18 Inspector Vinod Pal further deposed that he had deposited the said exhibits and the clothes of the deceased in the malkhana, and also recorded the statement of Constable Jagdish Prasad. PW18 Inspector Vinod Pal further deposed that on 30.6.2012, he had collected the post mortem report Ex. PW7/A from the said mortuary. PW18 Inspector Vinod Pal further deposed that on 02.7.2012 vide his application Ex. PW18/E, the weapons of the offence, namely, the danda and the brick were submitted, through Constable Bharat Lal, to the autopsy surgeon for subsequent opinion. PW18 Inspector Vinod Pal further deposed that on 03.7.2012, he had collected the subsequent opinion qua the said brick and danda, which are Ex. PW7/B and Ex. PW7/C. PW18 Inspector Vinod Pal further deposed that on 04.7.2012, he had got the Sessions Case No. 38/14 Page No. 46 of 71 exhibits pertaining to this case alongwith sample seals sent to FSL Rohini for their analysis vide RC bearing No. 112/21/12 dated 04.7.2012, through Head Constable Suresh Kumar. PW18 Inspector Vinod Pal further deposed that on 16.7.2012, he took SI Mahesh Kumar, Draftsman to the spot and pointed out the place of occurrence to him, and he (SI Mahesh Kumar) had prepared the rough notes in this regard and later on he had prepared the scaled site plan. PW18 Inspector Vinod Pal further deposed that during the course of investigation, he had also collected the TCR Ex. PW15/A from police control room. PW18 Inspector Vinod Pal further deposed that he had also recorded the statement of the first informant, namely, Sh. Harcharan Singh who had made call to the police vide DD No.6A Ex. PW18/A. PW18 Inspector Vinod Pal further deposed that after completion of investigation, he had prepared the charge sheet and had submitted the same in the court. PW18 Inspector Vinod Pal further deposed that he had also collected the FSL report Ex. PW18/F with regard to the exhibits of this case from FSL and submitted in the court vide supplementary charge sheet dated 05.10.2012. During his cross examination PW18 Inspector Vinod Pal deposed that on 21.6.2012, he remained at the spot from 3:30 am to 4:30 am, and thereafter left for Sessions Case No. 38/14 Page No. 47 of 71 the AIIMS and reached there at about 4:50 am. During his cross examination PW18 Inspector Vinod Pal further deposed that after reaching the AIIMS, he met the Duty Constable, but he could not tell his name or belt number. During his crossexamination PW18 Inspector Vinod Pal affirmed that he did not record the statement of the Duty Constable. During his crossexamination PW18 Inspector Vinod Pal further deposed that Mr. Ajit Chadha, the owner of the plot, where the dead body was found, was not available for investigation. During his crossexamination PW18 Inspector Vinod Pal further deposed that during the investigation he came to know that the accused and the deceased were living in the same premises, but he did not seize any belongings of the deceased or the accused. During his crossexamination PW18 Inspector Vinod Pal further deposed that at the time of his arrest the accused was also carrying his discharge summary and the same was taken into possession by him. During his crossexamination PW18 Inspector Vinod Pal further deposed that on 21.6.2012 at about 11:30 am, he came to know, telephonically, that the accused was missing from the AIIMS, where he was admitted in injured condition. During his crossexamination PW18 Inspector Vinod Pal affirmed that the accused and the deceased were living in Sessions Case No. 38/14 Page No. 48 of 71 the same premises, but in two separate rooms, and further added that the deceased had been residing on the ground floor, whereas the accused was residing on the first floor.
35. PW19 HC Babu Lal during his examinationinchief deposed that on 21.6.2012, he was posted at police station Neb Sarai and on that day, Inspector Vinod Pal deposited three exhibits in sealed condition bearing seal of VP and also blood sample with sample seal bearing seal of AIIMS Hospital, which he entered at serial No. 915 of the register no. 19 and deposited the said case property in the malkhana. PW19 HC Babu Lal further deposed that on 22.6.2012, Inspector Vinod Pal deposited the articles found on the body of the deceased and also a sealed pullanda bearing seal of AIIMS Hospital and a knife and danda, in sealed condition, bearing seal of VP, and personal search memo of accused Suraj Sharma, which he entered at serial No. 917 of register no. 19 and deposited the case property in the malkhana. PW19 HC Babu Lal further deposed that on 23.6.2012, Inspector Vinod Pal deposited three pullandas and a sample seal bearing seal of Forensic Medicine JPNATC, which he entered at serial No. 922 and deposited the case property in the malkhana. PW19 HC Babu Lal further deposed that on 02.7.2012, case property of this case, Sessions Case No. 38/14 Page No. 49 of 71 danda and brick were sent to JPNATC, AIIMS Hospital through Constable Bharat Lal vide RC No. 111/21/12. PW19 HC Babu Lal further deposed that on 04.7.2012, ten pullandas of this case were sent to FSL, Rohini through HC Suresh Kumar vide RC No. 112/21/12. PW19 HC Babu Lal further deposed that on 02.7.2012, two sealed pullandas containing danda and brick were received through Constable Bharat Lal and deposited in the malkhana with medical opinion. PW19 HC Babu Lal further deposed that on 28.9.2012, ten pullandas of this case were received from FSL through Constable Bharat Lal alongwith the opinion. PW19 HC Babu Lal further deposed that the said pullandas were deposited in the malkhana and opinion was handed over to Inspector Vinod Pal. PW19 HC Babu Lal further deposed that so long as the pullandas remained with him no tampering was done with them. During his examination he also tendered the copies of the relevant entries of register No. 19, which is Ex. PW19/A (six pages) and the copies of relevant entries of register No. 21, which is Ex. PW19/B (three pages). During his crossexamination PW19 HC Babu Lal deposed that the seal was deposited by the IO in the malkhana, and further deposed that there was no entry in the register No. 19, brought by him in the court, that the IO deposited the seal in Sessions Case No. 38/14 Page No. 50 of 71 the malkhana.
36. PW20 Ashok Kumar during his examinationinchief deposed that on 20.6.2012, he was working as ASI in Delhi Police and was posted as incharge, PCR Van, Eagle50 and his duty timings were from 8.00 pm to 8.00 am. PW20 Ashok Kumar further deposed that in the intervening night of 20.6.2012 and 21.6.2012 at about 3.05 am, he received a call from the police control room to the effect that at W13, Western Avenue, Sainik Farms, New Delhi, one person was lying unconscious. PW20 Ashok Kumar further deposed that after making entry of the said call in the call book, maintained at van, he visited W13, Western Avenue, Sainik Farms, New Delhi, where outside the gate one person was lying unconscious. PW20 Ashok Kumar further deposed that he put him in the PCR van and took him to the Trauma Center of the AIIMS, where he was admitted. PW20 Ashok Kumar further deposed that after admitting the said person, he made another entry in the call book, maintained at the PCR Van. During his examination he also tendered the copies of relevant entries in the call book, which is Ex. PW20/A and Ex. PW20/B. During his examination he also identified the accused, who was taken by him to the Trauma Center of the AIIMS. During his crossexamination PW20 Ashok Sessions Case No. 38/14 Page No. 51 of 71 Kumar deposed that at the time of his removal to the Trauma Center, blood was coming out of the mouth of the accused, and the blood was also there on his clothes. During his crossexamination PW20 Ashok Kumar further deposed that at the time of his admission in the Trauma Center, the accused was handed over to the Duty Constable, namely, Constable Jasbir, No. 832/SD.
37. In the light of the charge framed against the accused and the arguments advanced before the court, the first point for determination is: whether on 21.6.2012 and prior to that accused Suraj Sharma was living with Bachcha Ram Yadav in the same premises?
38. On this point the prosecution has neither examined Mr. Ajit Chadha, the owner of plot No. 13/18, Western Avenue, Sainik Farms, New Delhi, nor the wife of Bachcha Ram Yadav, who had been living with him, and left for her native place at Bihar only few days ago. However, from the testimony of PW18 Inspector Vinod Pal and the statement made by the accused during his examination under section 313 of Cr.P.C., where he admitted that he was living in the plot, it has been proved that on plot No. 13/18, Western Avenue, Sainik Farms, New Delhi, in the same premises, but in two separate rooms, the accused and Bachcha Ram Yadav had been living on 21.6.2012, Sessions Case No. 38/14 Page No. 52 of 71 and prior to that.
39. The second point for determination is: whether on the intervening night of 20.6.2012 and 21.6.2012, Bachcha Ram Yadav suffered injury on his body, which resulted in his death?
40. As per the testimonies of PW2 SI Jitender Kumar, PW4 ASI Arun Kumar, PW8 Constable Jagdish Prasad, PW9 HC Dalbir Singh, PW13 Constable Jaiveer Singh and PW18 Inspector Vinod Pal, in the morning on 21.6.2012, when they reached plot No. 13/18, Western Avenue, Sainik Farms, New Delhi, they saw a body with injury on its head lying there, and subsequently the said body was identified as the body of Bachcha Ram Yadav, who was living at 13/18, Western Avenue, Sainik Farms, and was working as a Chowkidar in the said plot. As per the testimony of PW11 Chet Ram and PW12 Raghavram, they were the brothers of deceased Bachcha Ram Yadav and on 23.6.2012, in the mortuary of the AIIMS, they had identified the body of their brother Bachcha Ram Yadav. As per the testimony of PW7 Dr. Sanjay KumarII, who identified the signature and writing of Dr. Sanjay KumarI on post mortem examination report Ex. PW7/A, on 23.6.2012, post mortem examination of deceased Bachcha Ram Yadav was conducted by Dr. Sanjay KumarI, who had Sessions Case No. 38/14 Page No. 53 of 71 left the services of the AIIMS, and whose whereabouts were not known. PW7 Dr. Sanjay KumarII further deposed that post mortem report No. 420/12, Ex. PW7/A was prepared by Dr. Sanjay KumarI and in the opinion of Dr. Sanjay KumarI, mentioned in Ex. PW7/A, the cause of death of the deceased was severe head injury caused by blunt force/impact, and except Injury No. 6, all the injuries observed by Dr. Sanjay KumarI during the post mortem examination of the deceased were ante mortem in nature.
41. As per post mortem report Ex. PW7/A, prepared by Dr. Sanjay KumarI, during the post mortem examination of deceased Bachcha Yadav, whose body was identified by relatives Raghavram and Chet Ram, following injuries were observed, namely: (1) Brownish coloured lacerated wound about 3 x 0.5 cm x bone deep on left side of forehead.
(2) Lacerated wound of 4 x 3 cm x bone deep, 2 in number, located on occipital part of scalp.
(3) Brownish coloured abrasion of size 7 x 1 cm on right upper chest and of size on front of left thigh.
(4) Multiple abrasion like small nick on both upper limbs. (5) Brownish coloured abrasion on front of both knees of Sessions Case No. 38/14 Page No. 54 of 71 size of about 2 x 2 cm.
(6) Lacerated wound of 3 x 1 cm x bone deep located on lower back.
42. As per the post mortem report Ex. PW7/A, the death occurred about two to three days prior to the post mortem examination, and in the opinion of Dr. Sanjay KumarI, who himself has not been examined as a witness, the cause of death of the deceased was severe head injury caused by blunt force/impact except injury No. 6 all the injuries, mentioned in Ex. PW7/A, were ante mortem in nature.
43. Although, the prosecution has not proved the MLC report of Bachcha Ram Yadav to show that on 21.6.2012 he was taken to the hospital where injuries were observed on his body and he was declared brought dead, nevertheless, from the testimonies of the afore mentioned prosecution witnesses and the post mortem report Ex. PW7/A, it has been proved that on the intervening night of 20.6.2012 and 21.6.2012, Bachcha Ram Yadav suffered injuries on his body, which ultimately resulted in his death. The second point is decided accordingly.
44. The third point for determination is: whether the injury Sessions Case No. 38/14 Page No. 55 of 71 that resulted in the death of Bachcha Ram Yadav was caused by the accused?
45. There is no direct evidence to the effect that on the intervening night of 20.6.2012 and 21.6.2012, any quarrel or scuffle or any such thing happened between the accused and the deceased, during which the accused, by using brick Ex. P3 or danda Ex. P4 or both, caused injury to deceased Bachcha Ram Yadav. The case of the prosecution is based on circumstantial evidence, and no motive has been proved that might have prompted the accused to commit the murder of Bachcha Ram Yadav. According to the prosecution on the intervening night of 20.6.2012 and 21.6.2012, the accused, who was working as a guard, and was living in the same premises in which the deceased was living, by using brick Ex. P3 and/or danda Ex. P4 caused injury to Bachcha Ram Yadav that resulted in his death; whereas according to the accused on the intervening night of 20.6.2012 and 21.6.2012, he, as a security guard, was on night duty from 8.00 pm to 8.00 am next morning at lane W13, Western Avenue, Sainik Farms, New Delhi, where at around 3.00 am in the night, while he was discharging his duty, as security guard, near the front gate and security booth, he heard some noise of bachao; and he immediately Sessions Case No. 38/14 Page No. 56 of 71 rushed towards the direction from where the noise was coming, and suddenly, he saw that three persons were coming from that side, whom he could not recognize as it was dark, and before he tried to stop them, they started beating him and pushed him, as a result of which, his head had hit the gate of House No. W13/14, Sainik Farms; and that he could just raise his hand to ring the bell of that house, and after that he became unconscious.
46. In Aftab Ahmad Ansari v. State of Uttaranchal, AIR 2010 SC 773 the Hon'ble Supreme Court summarized the law relating to circumstantial evidence and held as follows:
The law relating to circumstantial evidence is well settled. In dealing with circumstantial evidence, there is always a danger that conjecture or suspicion lingering on mind may take place of proof. Suspicion howsoever strong cannot be allowed to take place of proof and, therefore, the Court has to judge watchfully and ensure that the conjectures and suspicions do not take place of legal proof. However, it is no derogation of evidence to say that it is circumstantial. Human agency may be faulty in expressing picturization of actual incident but the circumstances cannot fail. Therefore, many a times, it is aptly said that "men may tell lies, but circumstances do not". In cases where evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established. Each fact must be proved individually and only thereafter the Court should consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of the guilt. If the combined effect of ail the facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that one or more of these facts, by itself/themselves, is/are not decisive. The circumstances proved should be such as to exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution case succeeds in a case of circumstantial evidence alone, it must exclude each and every hypothesis suggested by the accused, howsoever Sessions Case No. 38/14 Page No. 57 of 71 extravagant and fanciful it might be. There must be a chain of evidence so far complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability, the act must have been done by the accused. Where the various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the Court. If the circumstances proved are consistent with the innocence of the accused, then the accused is entitled to the benefit of doubt. However, in applying this principle, distinction must be made between facts called primary or basic on the one hand and inference of facts to be drawn from them on the other. In regard to the proof of basic or primary facts, the Court has to judge the evidence and decide whether that evidence proves a particular fact or not and if that fact is proved, the question arises whether that fact leads to the inference of guilt of the accused person or not. In dealing with this aspect of the problem, the doctrine of benefit of doubt applies. Although there should be no missing links in the case, yet it is not essential that every one of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences or presumptions, the Court must have regard to the common course of natural events, and to human conduct and their relations to the facts of the particular case.
47. According to the prosecution the circumstances that the accused and the deceased were living in the same premises; that on 21.6.2012 injuries were sustained by the accused and he was taken to the Trauma Center; that from the Trauma Center the accused sneaked away without informing the doctor or the police; that on 21.6.2012 at about 11:30 pm, the accused reached the spot and subsequently got recovered danda Ex. P4 and knife Ex. P5; and that in the opinion of Dr. Sanjay KumarI (vide opinion Ex. PW7/A) the injury on the body of the deceased could have been caused by Ex. P3 and Ex. P4 prove that it was accused Suraj Sharma, and no other person, who inflicted Sessions Case No. 38/14 Page No. 58 of 71 injury on the body of Bachcha Ram Yadav that resulted in his death.
48. It is not disputed by the accused that on 21.6.2012 he suffered injury on his body and was taken to the Trauma Center. But his contention is that he never sneaked away from the Trauma Center, and, in fact, in the morning of 21.6.2012 he was taken into custody by the police and thereafter, he remained in their custody. As per the testimony of PW18 Inspector Vinod Pal on 21.6.2012 at about 4:50 am he reached the AIIMS and met the Duty Constable. PW18 Inspector Vinod Pal has also testified that at the AIIMS the doctor declared the accused, who was admitted there as unknown person, as unfit for statement, and thereafter having received his blood sample, he returned to the spot. PW18 Inspector Vinod Pal has also testified that subsequently at about 11:30 am, he came to know, telephonically, that the accused had left the AIIMS, and thereafter, at 3:00 pm he again reached the AIIMS and came to know that the accused had gone away. PW18 Inspector Vinod Pal has also testified that only after apprehension of the accused at about 11:30 pm on 21.6.2012, he came to know that the name of the accused was Suraj Sharma, who was working as a guard in the area. PW18 Inspector Vinod Pal has also testified that at the time of his arrest the accused was wearing the Sessions Case No. 38/14 Page No. 59 of 71 clothes provided by the hospital and from his possession a mobile phone Ex. P6 and his discharge summary Ex. PW14/DB were recovered.
49. In the present case during the testimony of PW15 Constable Mohit Kumar, PCR Form Ex. PW15/A was tendered in evidence, and its contents were sought to be proved. In the said PCR Form Ex. PW15/A, besides the fact that one person was lying unconscious at W13/14, W13 Lane, Western Avenue, Sainik Farms, New Delhi, some other vital information and facts have been contained. In PartII of Form Ex. PW15/A, following has, inter alia, been recorded, namely:
MAUKA PAR EK AADMI DEAD PADA HAI JISKE SEER SE BLOOD NIKAL RAKHA HAI ENSHA LAG RAHA HAI KI ESKE KAFI TIME KI CHOT LAGI HAI AUR GUARD BEHOSH HAI LEKAR HOSPITAL JA HAI RAHE HAI AND DCR NO. 205 SAME CALL HAI 21/06/2012 04:21:46 FROM EG71 SAME CALL DCR NO. 207 CHALLAN NO. 1080069 MAUKA PAR SHO WITH STAFF MAUKA PAR HAI EK AADMI UFROKAT AAD KA FARM HOUSE KE ANDER DEAD PADA HAI JISKA NAAM YADAV BATA RAHE HAI JO YAHA SAINIK FARM MAI GUARD HAI AUR KUCH PATA NAHI CHAL RAHA HAI KI DONO GUARD KO KISNE MARA HAI ED KO EG50 BEHOSHI KI HALAT MAI HOSPITAL LE GAYI HAI [C/ROOM INF.] 21/06/2012 04:27:17 FROM EG50 === HUM EK INJURED KO LEKAR AIIMS HOSPITAL T/CMAI AAYE THE JISKO HOSH MAI D/CT KE HAWALE ADMIT KIYA HAI JISNE AAPNA NAAM SURAJ S/O NUKAL SHARMA AGE ABOUT 2526 YRS JO ADD. NAHI BATA PAA RAHA HAI AUR NA HE YAHE BATA RAHA HAI KISH NE ENKO SAATH MARPIT KI HAI JISKI JAMA TALSHI MAI 10/RS EK CHABI AUR KUCH PAPER MILE HAI [C/ROOM INF.) 21/06/2012 04:34:17 FROM EG71 MARANE WALE KI BODY PAR BANIAN HAI AUR 21/06/2012 04:35:04 KOI CLOTHES Sessions Case No. 38/14 Page No. 60 of 71 NAHI HAI[C/ROOM INF.] 21/06/2012 04:39:49 FROM EG71 MAUKA PAR CRIME TEAM AA GAYI HAI AUR YAHA PAR KUCH PATA NAHI CHAL RAHA HAI KI DONO GUARD KE KISH NE MARPIT KI HAI [C/ROOM INF.]
50. Further during his examination PW20 Ashok Kumar, who had taken the accused to the Trauma Center in injured condition, besides testifying orally, also produced relevant record, the copies of which are Ex. PW20/A and Ex. PW20/B. In Ex. PW20/A (Lorry Working Account Register) it was recorded at 4:05 am on 21.6.2012 that the injured had regained his consciousness and disclosed his name as Suraj son of Nakul Sharma; he was unable to speak more, and oxygen was being supplied to him.
51. From the contents of Ex. PW15/A and Ex. PW20/B it can be discerned that on 21.6.2012, by 4:27:17 am, the Duty Constable present at the Trauma Center of the AIIMS knew about the name and parentage of the accused, who was admitted there in injured condition. In these circumferences it cannot be believed that on the same day at about 4:50 am, when PW18 Inspector Vinod Pal reached the AIIMS, and met the Duty Constable, he did not come to know about the name and other details of the accused, and that he came to know about the identity of the accused only at 11:30 pm after his apprehension by HC Rajender.
Sessions Case No. 38/14 Page No. 61 of 71
52. The discharge summary Ex. PW14/DB, as per the testimony of PW18 Inspector Vinod Pal, was seized by him from the possession of the accused on 21.6.2012 after 11:30 pm, when the accused visited the spot and was apprehended by HC Rajender. The said discharge summary of the accused was not forwarded by Inspector Vinod Pal alongwith the police report under section 173 of Cr.P.C., and only during the examination of PW14 Dr. Deepti, the said discharge summary, which was existing in the police file in custody of the Additional Public Prosecutor, was tendered in evidence as Ex. PW14/B, and referred to during her crossexamination as Ex. PW14/DB. The contents of the arrest memo Ex. PW16/A and personal search memo Ex. PW16/B, pertaining to the accused, however, belies the claim of the IO that he seized discharge summary Ex. PW14/DB from the possession of the accused at the time of his arrest, so much so neither in arrest memo Ex. PW16/A nor in personal search memo Ex. PW16/A or in any other memo, prepared at the time of the arrest of the accused or subsequently, reference has been made to such discharge summary. Had the discharge summary Ex. PW14/DB been seized from the possession of the accused, in Ex. PW16/A and Ex. PW16/B or any other memo it would have been mentioned that besides Sessions Case No. 38/14 Page No. 62 of 71 the mobile phone Ex. P6, the discharge summary Ex. PW14/DB was also seized from the possession of the accused. These circumstances only lead to the inference that the accused did not sneak away or was not missing from the AIIMS, and instead he was duly discharged from there, and at the time of his discharge, his discharge summary Ex. PW14/DB was prepared, wherein deliberately his name was not mentioned, though address W13, Sainik Farms, nature of injury observed on his body and further advice to visit on 29.6.2012 for review was mentioned. The possession of the discharge summary Ex. PW14/PB by the prosecution give rise to the probability that the same was taken into possession by the police at the time of the discharge of the accused from the AIIMS, and further probability that the accused was not taken into custody by the police in the circumferences as deposed by PW16 SI Paras Nath Verma, PW17 HC Rajender and PW18 Inspector Vinod Pal, and instead he was taken into custody after his discharge from the Trauma Center. In this regard I also find support in the inconsistencies of the testimonies of PW17 HC Rajender and PW18 Inspector Vinod Pal so much so PW18 Inspector Vinod Pal during his examination deposed that at the time of his arrest the accused was wearing the clothes provided by the hospital to a Sessions Case No. 38/14 Page No. 63 of 71 patient, whereas PW17 HC Rajender during his crossexamination deposed that at the time of his arrest the accused was wearing jeans and shirt.
53. According to the prosecution, the existence of blood stained brick Ex. P3 near the deceased, and recovery of bloodstained danda Ex. P4 and knife Ex. P5 at the instance of the accused proves that the accused had caused injury to Bachcha Ram Yadav. Before discussing this aspect of the case, particularly, the circumferences of recovery of danda Ex. P4 and knife Ex. P5, some other facts are required to be noticed. As per FSL report Ex. PW18/F (Report No. FSL2012/B4946 Bio No. 795/12 dated 28.9.2012) on 4.7.2012, ten parcels, containing exhibits, some of which stated to have blood on them or blood samples, were received at the FSL, Rohini, Delhi and were analyzed. As per the said report, on exhibits 1, 3, 4, 5a, 5b, 5c, 5e, 6, 7, 8, 9 and 10, namely, lumps of earth (blood soaked earth), dark brown foul smelling liquid (blood sample), knife, pant, shirt, baniyan, shoes, hair, bloodstained gauze, baniyan, danda and brick respectively blood was detected. As per FSL report Ex. PW18/F (Report No. FSL2012/B4946 Bio No. 795/12 dated 28.9.2012) on the exhibits submitted for analysis blood grouping could not be determined. And Sessions Case No. 38/14 Page No. 64 of 71 thus, it has not been proved that any of the exhibits, including brick Ex. P3, danda Ex. P4 or knife Ex. P5, submitted for analysis to the FSL, had blood of the deceased or the accused on them.
54. Further, as per the testimonies of the prosecution witnesses and post mortem report Ex. PW7/A, on 23.6.2012 post mortem examination on the body of deceased Bachcha Ram Yadav was conducted by Dr. Sanjay KumarI. And as per the testimony of PW18 Inspector Vinod Pal on 30.6.2012 he received the post mortem report Ex. PW7/A from the AIIMS, and subsequently, on 2.7.2012 alongwith brick Ex. P3 and danda Ex. P4 submitted the same to Dr. Sanjay KumarI for his subsequent opinion, who on 3.7.2012 gave his opinion Ex. PW7/B alongwith sketch Ex. PW7/C.
55. The opinion 509 Ex. PW7/A dated 3.7.2012, purportedly given by Dr. Sanjay KumarI, reads as follows:
OPINION 509 An application for subsequent opinion was received from Insp. Vinod Pal p.s. Neb Sarai, New Delhi on 2.7.2012 in respect to case FIR No. 182/12 dated 21.6.2012 u/s 302 IPC P.S.Neb Sarai.
Two weapon of offence was submitted along with P.M. Report and opinion was sought whether injuries as mentioned in PMR is possible with the provided weapon of offence (danda & brick) or not.
The two weapon of offences bearing the seal of 'VP' when cut open has thick wooden stick as depicted Weapon No.1 & a full piece of brick as depicted Weapon No.2 on page 2 of this report. Both weapons have blood like stain on it.
As mentioned on PMR, deceased Baccha Ram Yadav had sustained severe injuries on head which was caused by blunt force / impact. Sessions Case No. 38/14 Page No. 65 of 71 After examination of both weapon of offence and injuries as mentioned in PMR, I am of the opinion that the possibility of injuries sustained by deceased, being inflicted by either of two weapon of offence cannot be ruled out. However, other circumstantial evidences should also be considered in this regard and further examination of the said weapon by FSL/CFSL is suggested to rule out blood stain or otherwise.
Concluded.
The weapon of offence are being sealed and returned back to IO along with other documents.
Sd/ Dr. Sanjay KumarI
56. From a reading of Ex. PW7/B it can be discerned that according to Dr. Sanjay KumarI the weapon alongwith post mortem report were received by him on 2.7.2012, and opinion was sought. A perusal of post mortem report Ex. PW7/A, however, reveals that although, as testified by PW18 Inspector Vinod Pal, the same purports to had delivered to the IO on 30.6.2012, the same was generated through computer on 3.7.2012 at 11:31:38, and not on 30.6.2012 as asserted by PW18 Inspector Vinod Pal from the witness box. A perusal of post mortem report Ex. PW7/A reveals that although, presumably for ulterior purpose, the actual date and time of printing of Ex. PW7/A, on its foot, attempted to be obliterated by putting ink on the same, but on careful reading it can be observed, unfailingly, that report Ex. PW7/A, purporting to had received by the IO on 30.6.2012 was in fact generated and printed on 3.7.2012, the day opinion Ex. Sessions Case No. 38/14 Page No. 66 of 71 PW7/B was purportedly given. Now it is something unusual for the reason that if report Ex. PW7/A was printed on 3.7.2012, how come the same was received by the IO on 30.6.2012; and how come the same was received by Dr. Sanjay KumarI on 2.7.2012 alongwith the weapon of offence, as mentioned in Ex. PW7/A. Clearly, the IO as well as Dr. Sanjay KumarI did not act carefully and sincerely, and the facts recorded by them to the effect that the post mortem report was received by the IO on 30.6.2012, and that on 02.7.2012 Dr. Sanjay KumarI received the exhibits alongwith the post mortem report are false. The conduct of Dr. Sanjay KumarI, who, apparently, gave his report Ex. PW7/A in casual manner, brings his report Ex. PW7/A under a cloud of suspicion. His opinion Ex. PW7/A, sought to be proved through PW7 Dr. Sanjay KumarII, and is otherwise not specific regarding the weapon exactly used in causing the injury to the deceased, cannot be believed.
57. As I have already observed, the possession of discharge summary Ex. PW14/DA by the police, without its mentioning in the arrest and personal search memo of the accused, or any other memo tendered in evidence, indicates that the accused was not apprehended on 21.6.2012 at about 11:30 pm as asserted by the prosecution Sessions Case No. 38/14 Page No. 67 of 71 witnesses, and instead the circumstances indicate that it was highly probable that the accused was taken into custody by the police at the time of his discharge from the hospital itself. In these circumstances, the recovery of danda Ex. P4 and knife Ex. P5 at the instance of the accused also becomes doubtful, especially when no public witness was joined during such recovery, though their presence could have been secured easily. Moreover, from the testimonies of PW16 SI Paras Nath Verma, PW17 HC Rajender and PW18 Inspector Vinod Pal and site plan Ex. PW9/A, recovery of danda Ex. P4 and knife Ex. P5 seems to be from open place accessible to public at large, and not hidden, and no precaution was taken by the police to cordon off the scene of crime and therefore, evidentiary value thereof would be almost negligible.
58. As already mentioned, the defence taken by the accused during his examination under section 313 of Cr.P.C. is that on the intervening night of 20.6.2012 and 21.6.2012, he, as a security guard, was on night duty from 8.00 pm to 8.00 am next morning at lane W13, Western Avenue, Sainik Farms, New Delhi, where at around 3.00 am in the night, while he was discharging his duty, as security guard, near the front gate and security booth, he heard some noise of bachao; and he immediately rushed towards the direction from where Sessions Case No. 38/14 Page No. 68 of 71 the noise was coming; that suddenly, he saw that three persons were coming from that side, whom he could not recognize as it was dark, and before he tried to stop them, they started beating him and pushed him, as a result of which, his head had hit the gate of House No. W13/14, Sainik Farms; and that he could just raise his hand to ring the bell of that house, and after that he became unconscious.
59. While laying down the standards on which the defence of an accused person must be evaluated in a criminal case, the Hon'ble Supreme Court in Aher Raja Khima v. State of Surashtra, AIR 1956 SC 217 held as follows:
[T]here are two important factors in every criminal trial that weigh heavily in favour of an accused person,: I one is that the accused is entitled to the benefit of every reasonable doubt and the other., an offshoot of the same principle, that when an accused person offers a reasonable explanation of his conduct, then, even though be cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false.
60. In the present case, in so far as the prosecution is concerned, it has proved that the accused and the deceased were living in the same premises; albeit in two separate rooms. From the prosecution evidence, especially from the testimony of PW18 Inspector Vinod Pal, it has also been proved that the accused was working as night guard in the area. However, the prosecution has not proved any circumstance on the record to show that on the intervening Sessions Case No. 38/14 Page No. 69 of 71 night of 20.6.2012 and 21.6.2012 the accused was not working as such guard or he was seen near the deceased or he had opportunity to remain present in the premises, where he and the deceased were living. The prosecution has also failed to prove the motive that might have prompted the accused to cause the death of Bachcha Ram Yadav. The prosecution has also failed to prove that on brick Ex. P3 there was any finger print of the accused or it was having his blood on it. The prosecution has also failed to prove that danda Ex. P4, which was recovered from open area, was having any finger print or the blood of the accused or the deceased on it. The circumstances that post mortem report Ex. PW7/A was printed on 3.7.2012 and purportedly received by the IO on 30.6.2012 and subsequently received by Dr. Sanjay KumarI on 2.7.2012 also give rise to the probability that the opinion Ex. PW7/B is tainted, and not reliable.
61. The explanation given by the accused regarding the circumstances in which he suffered the injury on his body is plausible and reasonable, and therefore, in view of the law laid by the Hon'ble Supreme Court in Aher Raja Khima's case (supra) even though be cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. In the present case, the Sessions Case No. 38/14 Page No. 70 of 71 circumstances do not indicate that the assertions of the accused in his defence are false. Hence, on the third point it is found that the prosecution has failed to prove that the injury that resulted in the death of Bachcha Ram Yadav was caused by the accused.
62. To sum up, in the light of the evidence produced before the Court, the prosecution has failed to prove that the injury that resulted in the death of Bachcha Ram Yadav was caused by the accused, thus the prosecution has failed to discharge the burden and failed to prove all the circumstances leading to irresistible conclusion that the accused has committed the offence charged against him. In these circumstances, benefit of doubt is given to accused Suraj Sharma and he is acquitted of charge under section 302 of the Indian Penal Code. Subject to compliance of the provisions under section 437A of Cr.P.C. Suraj Sharma, son of Nakul Sharma be set at his liberty. File be sent to records.
Pronounced in the open court (Manoj Kumar)
th
on 25 of April 2015 Additional Sessions Judge4
South District:Saket Courts:
New Delhi
Sessions Case No. 38/14 Page No. 71 of 71