Delhi District Court
State vs . Atul Sharma on 24 November, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST) ROHINI COURTS: DELHI
Session Case No: 133/2013
Unique Case ID No.: 02404R0167062013
State Vs. Atul Sharma
S/o Sh. Ram Swaroop Sharma
R/o Mange Ram Park Extn.,
Lal Singh Ka Ara, Ghadda,
Budh Vihar, PhaseII, Delhi
Permanent Address:
Village Neer Bahar,
PS Dehat Kotwali, Sitapur Road,
District Hardoi, Uttar Pradesh
(Convicted)
FIR No.: 159/2013
Police Station: Vijay Vihar
Under Section: 302 Indian Penal Code
Date of committal to session court: 1.7.2013
Date on which orders were reserved: 22.11.2014
Date on which judgment pronounced:22.11.2014
JUDGMENT:
(1) As per the allegations on 24.3.2013 at about 11:15 PM at Mange Ram Park Extn., Gadda, Ara Machine Plot, Vijay Vihar the accused Atul Sharma committed the murder of Mukesh Sharma by giving blows with the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 1 Chorsi and Axe on his stomach and after having committed the murder he caused the evidence of commission of murder i.e. Chorsi, Axe and his blood stained clothes to disappear with intent to screen himself from legal punishment.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 25.03.2013 at about 1:30 AM (midnight) an information was received at Police Station Vijay Vihar regarding a deceased being brought to the hospital in an injured condition having deep cuts on his body. On receipt of this information SI Ajay Kumar along with Ct. Jai Singh reached BSA Hospital where they met the Duty Head Constable and three public persons namely Atul (accused), Ajay and one Ram Avtar. SI Ajay questioned the three boys who informed that the said boy Mukesh was also working with them on Ara Machine / saw machine and was injured while working on the said Ara / Saw Machine .
The doctor on duty handed over the clothes of the deceased in a sealed condition to SI Ajay Kumar. In the meanwhile the SHO Inspector Sunil Kumar and the ATO also reached the Hospital. The SHO then interrogated the three boys and made a request to the CMO Mortuary to preserve the body after which they all reached the Ara / Saw Factory and the Crime Team was called. At the spot they found blood scattered all over the bricks and the Crime Team inspected the spot and also took photographs and then the Crime Team also inspected the dead body in the hospital. SI Sanjay St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 2 then made his endorsement on DD No. 4A and converted the same into a tehrir on the basis of which the present case was registered. The Investigating Officer then lifted various exhibits from the spot i.e. blood stained brick and another half brick without blood and seized the same. On 26.03.2013 the postmortem examination on the dead body of the deceased was conducted after which the dead body was handed over to its relatives. (3) On 27.03.2013 pursuant to a secret information the accused Atul was apprehended from near Meera Public School, near Ara Machine and his disclosure statement was recorded, pursuant to which disclosure statement the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags and the accused disclosed that with this chorsi he had killed Mukesh. The accused Atul then took the police team to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades on which the Investigating Officer Inspector Sunil Kumar prepared the khakha/ sketch of the chorsi and then seized the same. Thereafter the accused took the police team to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which the accused claimed he was wearing on the date of the incident, after which the said clothes of the accused were taken into possession by Inspector Sunil Kumar. After completion of investigations charge sheet against the accused Atul Sharma was filed in the Court.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 3 CHARGES:
(4) Charges under Sections 302 and 201 Indian Penal Code were settled against the accused Atul Sharma to which he pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sr. PW No. Name of the Witness Details of the Witness No.
1. PW1 Ct. Raj Kumar Police Witness - Special Messenger
2. PW2 Ct. Subhash Police Witness who had reached the spot
3. PW3 SI Anil Kumar Police Witness - Crime Team Incharge
4. PW4 Ct. Om Prakash Police Witness who had deposited the pullandas with the FSL
5. PW5 Ct. Jai Singh Police Witness who had reached the spot with SI Ajay Kumar
6. PW6 Ct. Harish Police Witness - Crime Team Photographer
7. PW7 HC Sukhpal Police Witness - Duty Head Constable at BSA Hospital
8. PW8 Ct. Naresh Police Witness who had reached the spot
9. PW9 HC Sunil Dutt Police Witness who had reached the spot with SI Ajay Kumar
10. PW10 HC Sunil Kumar Police Witness - Duty Officer
11. PW11 HC Rakesh Kumar Police Witness - MHCM
12. PW12 Insp. Manohar Lal Police Witness - Draftsman
13. PW13 Israr Babu Nodal Officer from Vodafone St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 4 Sr. PW No. Name of the Witness Details of the Witness No.
14. PW13A Saurabh Aggarwal Nodal Officer from Vodafone
15. PW14 Vishal Gaurav Nodal Officer from Bharti Airtel Ltd.
16. PW15 Pawan Singh Nodal Officer from Idea Cellular Ltd.
17. PW16 Ranjana Public Witness - Wife of the deceased
18. PW17 Sharvan Kumar Public Witness - Father in law of the deceased
19. PW18 Girish Chand Public Witness - Employer of the accused Atul Sharma
20. PW19 Dr. Bhavana Jain Official Witness from BSA Hospital who has proved the MLC of the deceased
21. PW20 Virender Public Witness - Uncle/ Phufa of the deceased
22. PW21 Raju Public/ Independent Witness who had seen accused entering the room of the deceased
23. PW22 Ramu Public Witness - Brother of the deceased
24. PW23 HC Parmender Kumar Police Witness who had joined the investigations with Inspector Sunil Kumar
25. PW24A Dr. Vijay Dhankar Autopsy Surgeon
26. PW24 SI Ajay Kumar Initial Investigating Officer
27. PW25 Insp. Sunil Kumar Subsequent Investigating Officer List of documents exhibited:
Sr. Exhibit No. Details of documents Proved by
No.
1. PW1/1 Affidavit of witness Ct. Raj Kumar Ct. Raj Kumar
2. PW2/1 Affidavit of witness Ct. Subhash Ct. Subhash
3. PW3/1 Affidavit of witness SI Anil Kumar SI Anil Kumar
4. PW3/A Crime Team Report
5. PW4/1 Affidavit of witness Ct. Om Prakash Ct. Om Prakash
6. PW4/A RC 145/21/13
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 5
Sr. Exhibit No. Details of documents Proved by
No.
7. PW4/B FSL receipt
8. PW5/1 Affidavit of witness Ct. Jai Singh Ct Jai Singh
9. PW6/1 Affidavit of witness Ct. Harish Ct. Harsh
10. PW6/A1 to Photographs of Scene of Crime and Dead PW6/A21 Body
11. PW6/B Negatives of the above photographs
12. PW7/1 Affidavit of witness HC SukhPal HC Sukhpal
13. PW8/1 Affidavit of witness Ct. Naresh Ct. Naresh
14. PW9/1 Affidavit of witness HC Sunil Dutt HC Sunil Dutt
15. PW9/A Seizure memo of Dibbi given by the doctor
16. PW10/1 Affidavit of witness HC Sunil Kumar HC Sunil Kumar
17. PW10/A DD No. 9A
18. PW10/B FIR
19. PW10/C Endorsement on Rukka
20. PW11/1 Affidavit of witness HC Rakesh Kumar HC Rakesh Kumar
21. PW11/A Copy of Reg No. 19 Sr. No. 176/13
22. PW11/B Copy of Reg No. 19 Sr. No. 179/13
23. PW11/C Copy of Reg No. 19 Sr. No. 180/13
24. PW12/1 Affidavit of witness Insp. Manohar Lal Insp. Manohar Lal
25. PW12/A Scaled Site Plan
26. PW13/A CAF of Mobile No. 8877823767 Israr Babu
27. PW13/B Copy of Election Card
28. PW13/C CDR
29. PW13/D Cell ID Chart
30. PW13/E Certificate U/s 65B of Evidence Act
31. PW13/A CAF of Mobile No. 8377823767 Saurabh Aggarwal
32. PW13/B Copy of Election Card
33. PW13/C CDR St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 6 Sr. Exhibit No. Details of documents Proved by No.
34. PW13/D Cell ID Chart
35. PW13/E Certificate U/s 65Bof Evidence Act
36. PW14/A CAF of Mobile No. 9818553961 Vishal Gaurav
37. PW14/B Copy of Election Card
38. PW14/C CDR
39. PW14/D Cell ID Chart
40. PW14/E Certificate U/s 65B of Evidence Act
41. PW15/A CAF of Mobile No. 8726964524 Pawan Singh
42. PW15/B Copy of Election Card
43. PW15/C CDR
44. PW15/D Cell ID Chart
45. PW15/E Certificate U/s 65B of Evidence Act
46. PW18/PX1 Statement u/s. 161 Cr.P.C. of Girish Chand Girish Chand
47. PW19/A MLC of deceased Dr. Bhavana Jain
48. PW20/A Dead body identification memo Virender
49. PW20/B Dead body handed over memo
50. PW20/PX1 Statement u/s. 161 Cr.P.C. of Raju Raju
51. PW22/A Dead body identification memo Ramu
52. PW23/A Arrest memo of accused Atul Sharma HC Parmender
53. PW23/B Personal search memo of accused
54. PW23/C Disclosure statement of accused
55. PW23/D Sketch of Chorsi
56. PW23/E Seizure memo of Chorsi
57. PW23/F Seizure memo of Axe
58. PW23/G Seizure memo of clothes of accused
59. PW23/H Seizure memo of mobile phone
60. PW23/I Pointing out memo St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 7 Sr. Exhibit No. Details of documents Proved by No.
61. PW24A/A Postmortem Report Dr. Vijay Dhankar
62. PW24A/B Subsequent Opinion on weapon of offence
63. PW24A/C Sketch of Axe
64. PW24A/D Sketch of Chorsi
65. PW24/A DD No. 4A SI Ajay Kumar
66. PW24/B Rukka
67. PW24/C Seizure memo of exhibits
68. PW24/D Seizure memo of sample seal
69. PW24/E Application for conducting the postmortem
70. PW25/A Site plan Insp. Sunil Kumar EVIDENCE:
(6) In order to prove its case the prosecution has examined as many as Twenty Six Witnesses as under:
Public Witnesses:
(7) PW16 Ms. Ranjana W/o late Sh. Mukesh, D/o Sh. Sarwan Kumar, has deposed that she was residing at her parental house with her parents. According to the witness, in her neighbourhood, maternal uncle of accused Atul (whom she has correctly identified in the Court ) namely Ram Narayan was residing and the mother of the accused, his two brothers namely Ajay and Chhotu and his sister were also residing. She has testified that being neighbour the accused Atul extended a friendship with her and Ram Narayan, the maternal uncle of accused Atul ever asked her parents to St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 8 get her and her sister married with the accused Atul and his younger brother but her parents refused to marry them with accused Atul and his brother Ajay on the issue that the parents of accused had no any immovable property. Since her her parents did not agree and she was married with Mukesh (since deceased) S/o Shiv Ram, Village Tikri, PS Sursa, Distt.
Hardoi, UP. According to the witness, even after her marriage with Mukesh, her friend circle with accused Atul remained and continued. She has also deposed that after the marriage when her husband came to their house, she got introduced Mukesh with accused Atul. According to the witness the accused Atul and his brother Ajay used to do work of furniture in Delhi and her husband Mukesh left his village by saying that he was going at the place of work of accused Atul and would also work there and told her that whenever she wanted to talk to him (Mukesh) she should make a missed call from the mobile number which used to remain in the house, which number she does not recollect and hence whenever she intended to talk to her husband in Delhi she made a missed call on the mobile phone of Atul which mobile number also she does not recollect pursuant to which first of all Atul used to talk to her after making a call on her mobile number and thereafter he used to pass over the phone to her husband Mukesh. She has testified that even after her marriage with Mukesh the accused Atul wanted to marry her but she refused.
(8) The witness has further deposed that on 24.03.2013 or 25.03.2013 at about 11.00PM she gave a missed call on the mobile phone of accused St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 9 Atul who started making love talks with her and when she asked him to get her to speak to her husband, the accused Atul told that he had cleared the way and killed Mukesh who was objecting his talks with her (Pehle to idharudhar ki pyar ki batein karta raha, phir thodi der baad kaha ki maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha"). She has further deposed that the accused also asked her that he and her sister Vandana came to Delhi after which they would perform the marriage. The witness has also deposed that later on, she received a telephone call from a Delhi Police Station that Mukesh had been murdered on which she alongwith her parents and her in laws came to Delhi and after completion of necessary formality, her husband Mukesh was cremated in Delhi and her statement was recorded by the police. (9) In her crossexamination by the Ld. Defence Counsel the witness has deposed that she was married with Mukesh on 18th day, month and year of which she is not aware and has voluntarily explained that she is totally illiterate. According to the witness the incident had taken place within one year of her marriage. She has further deposed that her parents refused to marry her and her sister with accused Atul and his brother Ajay because they were not having any agricultural land and he was living with his maternal uncle (Mama) Ram Narayan. The witness has also deposed that she cannot tell the month and year when maternal uncle of accused Atul asked her parents to marry her with accused Atul. She has denied the suggestion that no such talks were convened that is why she does not St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 10 remember the same. According to her, she had objected to the accused making a love talk on telephone. She has further stated that the accused also did not give the phone to Mukesh. The witness has further deposed that prior to this the accused had never made any such kind of love talks with her on telephone or otherwise. She has further deposed that when accused told her on the phone that he had murdered Mukesh, first of all she told this fact to her mother in law. She has admitted that her mother in law did not make any call to the police nor she made any call to the police. She has further denied the suggestion that she is a planted witness or that there were no such talk regarding love affection with the accused. (10) On the same day the witness Ms. Ranjana was recalled for additional examination by the Court after the examination of her father since new facts had emerged which the witness had earlier concealed and could have been in her knowledge and during the examination she informed that her marriage had been fixed with Atul and she was having a love affair with Atul for about one year and wanted to marry him. She further informed that one day when her parents and family were not at home, she had gone out with Atul and stayed with him over the night and in the morning when her family came to know about it, they were very annoyed. She has testified that they also went to the house of the accused Atul where there was an altercation between her family and the mama of Atul namely Ram Narain on account of which her marriage with Atul was called off. According to her, she did not want to marry anybody else and insisted to her parents that St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 11 she wanted to marry Atul but they married her to Mukesh against her wishes in their native village. She has testified that before her marriage with Mukesh, he i.e. Mukesh and his uncle were told about her affair with Atul and how the marriage had broken with him but Mukesh did not object to the same. She has also deposed that even after her marriage Mukesh used to have suspicion on her and felt that she used to call Atul and was continuing her relation with him though she had no such link with Atul (mere husband ko shak hota tha ki main shadi ke bad Atul se milte thi aur Atul se phone par bhi baat karte thi par main koi baat nahi karte thi). She has also deposed that when Mukesh last came to Delhi she was very happy and had come with one boy of the village but she is not aware how he started working in the adjoining factory where Atul and Ajay were working. (11) On a specific Court Question the witness has deposed that Atul and Ajay did not take her husband from the village, and he (deceased) had come with one another boy of the village from the village and she had never seen Atul and Ajay taking her husband from the village. The witness has further stated that she did not tell all these facts, about whatever she had deposed to the police and has voluntarily explained that she was very scared at that time. She has clarified that whatever she had state to the Court now was the correct version of whatever had transpired. (12) After this Court has observed that the witness had taken a complete U turn and a new version was emerged which was contrary and different to the prosecution version the Ld. Addl. PP for the State and the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 12 defence counsel were permitted to further examine the witness pursuant to which specific question was put to the witness by the Ld. Addl. PP as to what was her correct statement i.e. whether the one which she made on that day in the Court in her reexamination or which she had given before the police, to which the witness specifically explained that her subsequent statement which she had now made in the Court in her reexamination was her correct statement. She has denied the suggestion that she had been won over by the accused and that is why she changed her version in the Court on that day day.
(13) PW17 Sh. Sharvan Kumar is the father of Ranjana and has deposed that he used to work as Carpenter in his village and one Rajeshwari was the sister of Ram Narayan who was residing near their house and her three sons and two daughters were also living with him i.e. in their parental house. According to the witness, the eldest son of Rajeshwari was Atul, younger to him was Ajay and the youngest son was Chhotu. He has further deposed that Ram Narayan used to ask him to marry his daughters Ranjana and Vandana to accused Atul and Ajay to which he objected saying as to how he could marry his daughters with them since they were not having any movable or immovable property. The witness has explained that he also asked Rajeshwari at that time that if Ram Narayan expelled her from his house any time then where she will go with her children and also with his daughters. Thereafter Ram Narayan threatened him and later on Atul also joined him by saying "koi baat nahin, shaadi mat karo, koi time ayega to St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 13 batayenge". He has further testified that thereafter he married his daughter Ranjana to one Mukesh who was a resident of Village Tikri, PS Sursa, Distt. Hardoi, UP which was about two years prior to this incident. According to the witness, after the marriage the accused Atul got friendly with his Son in law Mukesh who also came to Delhi and started working with accused Atul. According to the witness, in the month of March of that year he received a telephone call from Police Station Vijay Vihar and inquired him about the relation of him with Mukesh on which he told him that Mukesh was his son in law and thereafter the police official told him that Mukesh had been murdered. He has also deposed that thereafter he alongwith his relatives, parents of Mukesh came to Delhi where they were taken to the Hospital where they identified the dead body of Mukesh and thereafter Mukesh was cremated in Delhi.
(14) In his crossexamination by the Ld. Defence Counsel the witness has deposed that Ram Narayan had asked him to marry his daughters with Atul and Ajay in the Hindi month of "Magh" but he cannot tell about the English Month and year of the same. He has further deposed that he is known to the family of Atul and Ajay since last 4045 years and they were related to the family of Atul and Ajay by kinship and they belong to the same community. He has admitted that Ranjana had told him that she known to Atul and she wanted to marry Atul and she was in love affair with Atul (Haan, prem tha). He has further stated that Ranjana was not his natural daughter and has voluntarily explained that she was daughter of his St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 14 real younger brother namely Muneshwar and he had adopted her since her birth. The witness has further deposed that after he came to know about love Affair of Ranjana and Atul and he had discussed it with his brother Muneshwar about the same. The witness has voluntarily explained that initially the marriage between Ranjana and Atul had been fixed but one day when he and his family members were away to the fields, the accused Atul lured Ranjana away and kept her with him for the whole night and it was next day morning when they came to know about the incident they even went to the uncle/ Mama of Atul namely Ram Narayan and disclosed to him the entire incident on which Ram Narayan pleaded that no action be taken and next time no such act would be repeated and therefore to save their honour in the society they broke the marriage between Atul and Ranjana and she was married to Mukesh.
(15) On a specific Court Question was put to the witness as to what was the problem due to which the marriage between Atul and Ranjana was broken and that too when Ram Narayan had already given an undertaking and both Atul and Ranjana were to be married, the witness has explained that Ram Narayan had done GaliGalauch with him and the accused and his brother had also told him that this incident would be repeated and in this background that it was on account of his family honour i.e. izzatMaryada that they had to break the marriage between Atul and Ranjana. (16) He has admitted that even when the marriage between Ranjana and Mukesh was fixed and was solemnized, Rajana refused to St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 15 marry Mukesh insisting that she would marry Atul. According to him, it was after two months of the breaking the marriage between Ranjana and Atul, that Ranjana was married to Mukesh in the village who belongs to their community but was not related to them. The witness has testified that he had disclosed the fact regarding the broken marriage between Ranjana and Atul to the uncle/ chacha of Mukesh and has voluntarily explained that Mukesh was an orphan and had been brought up by his chacha and this fact was specifically disclosed to Mukesh prior to the marriage and he had no objection about the same. According to him, Mukesh was not a very wealthy person and they had given him the gifts which were normally given in the marriage. He has further deposed that Mukesh was not known to Atul prior to his marriage with Ranjana and has voluntarily explained that Mukesh came to know Atul only after the marriage. He has admitted that Mukesh had told him that even after marriage Ranjana continued to talk and communicate with Atul and he was objecting to the same. The witness has testified that Mukesh also complained to him that Ranjana used to talk with Atul on his mobile phone. He has further deposed that Mukesh sometimes used to come to Delhi and work there and then go back to his village but Ranajana remained at the village. He has stated that initially Mukesh was working somewhere else and it was only after the marriage that he was employed in the factory adjoining the one where Atul was working.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 16 (17) It was observed by this Court that during the examination by the court the witness had come up with a new version after the incident which was contrary and different to the version put forth by the prosecution and hence this witness Sharvan Kumar was permitted to be reexamined by the Ld. Addl. PP for the State wherein a specific question was put to him as to what was his correct statement i.e. whether the one which he made on that day in the Court or the one which he had given before the police, to which the witness has explained that the statement which he had made on that day in the Court was his correct statement. He has denied the suggestion that he had been won over by the accused and that us why he had changed his version in the Court on that day day.
(18) PW18 Sh. Girish Chand is the employer / owner of the saw factory. He has deposed that he was residing at House No.13, Kotla Vihar, PhaseI, Najafgarh and House No. 62, Kotla Vihar, PhaseI, Najafgarh, Nangloi Road, Delhi along with his family comprising of his three other brothers, out of whom one had expired and now they were three brothers. According to the witness, Kotla Vihar is a kacchi colony and he is into business of carpentry. He has further deposed that he knew Atul Sharma because his brother Ajay used to work with him and Atul also used to meet him at times. According to him, when Ajay was employed with him, he had told him that he was not having his ID proof and wanted a SIM and therefore he had given him his ID proof i.e. his voter ID Card on which Ajay obtained a Vodafone SIM No. 8377823767 which SIM was used by Ajay St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 17 Sharma.
(19) Leading Question was put to the witness by Ld. Addl. PP for the State wherein the witness has admitted that Atul Sharma also used to work with him and has voluntarily explained that sometimes when he used to come with Ajay, he used to work with him. According to the witness, he had made a statement to the police when they made inquiries from him which statement is Ex.PW18/PX1. He does not recollect if he had told the police that he had also seen Atul Sharma using this SIM 8377823767 but has correctly identify the accused Atul Sharma in the court. (20) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he is not maintaining any records regarding the payments of salaries nor can be produce any documentary record to prove that Atul Sharma also worked with him in his wood factory along with his brother Ajay Sharma and has voluntarily explained that the place where the factory was situated was a kacchi colony and he is running a small business in respect of which he is not maintaining any records. According to the witness, he had a mobile phone at the time of incident bearing No. 96540....529 and Ajay Sharma often used to call him up on his mobile and has voluntarily explained that Ajay Sharma resides near his house and in case of any emergency used to come to him personally. He has admitted that he had given his mobile number to the police as 8130884161 and has voluntarily explained that he was also maintaining this number i.e. 8130884161 and also another number 96540....529 which complete number St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 18 he does not recollect. He has further deposed that Atul Sharma used to call him up but he does not recollect the number from which he made a call. He has also admitted that it was only Ajay Sharma who was using the SIM 8377823767 and he had never seen Atul Sharma using the same. (21) PW20 Sh. Virender is the uncle/ Phufa of the deceased who has deposed that on 25.03.2013 he came to Delhi to meet his nephew Mukesh but when he reached his house at Tikri, he came to know that Mukesh had been murdered. He has further deposed that on 26.03.2013 he went to the BSA Hospital where he identified the dead body of Mukesh vide memo Ex.PW20/A and after postmortem the dead body of Mukesh was handed over to them vide handing over memo which is Ex.PW20/B. He has not been crossexamined by the Ld. Defence Counsel despite an opportunity being given in this regard.
(22) PW21 Raju a rickshaw puller by profession has deposed that on 24th day about six months back he was going to Sunday Bazar at about 11.00PM and was returning when he saw the accused Atul while entering in the room in which Mukesh was residing. He has explained that Mukesh and Atul used to work on a saw mill (Ara Machine) which was belonged to one Lal Singh. The witness has testified that thereafter he started preparing his food and went for sleep and on next day police officials came when he came to know that a murder had taken place.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 19 (23) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has deposed that he had not seen accused Atul coming out from the room in which Mukesh and accused Atul were residing as tenant or told the police that Atul was having an "Axe and Chorsi" in his hands.
(24) The witness was cross examined by the Ld. Addl. PP for the State as he was found resiling from his earlier statement made to the police. In his cross examination the witness has admitted that on 24.03.2013 at about 10.30/11.00PM when he was going to Sunday Bazar he saw accused Atul coming out from the room in which Mukesh and Atul were living and accused Atul was having an Axe and Chorsi and stated that he had seen him entering the room. He has denied the suggestion that he was intentionally concealing the facts of his statement Ex.PW21/PX1 or that he had been won over by the relatives of the accused person not to depose on the last seen and has voluntarily explained and stressed that he had only seen Mukesh and Atul together going towards their room. (25) In his crossexamination by the Ld. Defence Counsel the witness has stated that he had informed this fact to the public but when confronted with the statement Ex.PW21/PX1 it was not found so recorded. (26) PW22 Sh. Ramu is the elder brother of the deceased who has deposed that on receipt of information regarding the death of his brother he came to Delhi and identified his dead body vide memo dated 26.03.2013 St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 20 which is Ex.PW22/A and after the postmortem he received the dead body of his brother vide memo Ex.PW20/B. This witness has not been cross examined by the accused despite an opportunity being granted in this regard.
Witnesses of Medical Record:
(27) PW19 Dr. Bhavana Jain, MO, Dr. BSA Hospital has deposed that on 25.03.2013 at about 1:20AM (midnight) the patient Mukesh Sharma S/o unknown, aged around 20 years male was brought by Ajay Sharma S/o Sh. Ram Swaroop Sharma with alleged history of stab injury by unknown person (as stated by accompanied person) and proper history was not available. She has also deposed that he examined the above said patient and prepared the MLC No. 3084/13 which is Ex.PW19/A. According to her, at the time of examination the patient was not unconscious, unresponsive, BP pulse not recordable, no respiratory effort, pupils fixed and dilated, corneal reflexes absent, dolls eye movement absent, ECG straight line and hence patient was declared Brought Dead which observations were mentioned on the MLC at encircled portion X to X1. The witness has further deposed that the body was handed over to the Investigating Officer via Duty Constable for further needful and postmortem at forensic department BSA hospital and the clothes of the patients were collected, sealed and handed over to the Investigating Officer. This witness has not been crossexamined by the Ld. Defence Counsel despite an opportunity being granted to him in this regard.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 21
(28) PW24A Dr. Vijay Dhankar, HOD, Forensic Medicine, Dr. BSA Hospital has deposed that on 26.03.2013 he conducted the postmortem on the dead body of one Mukesh, S/o Shivram, aged about 22 years on the request of SI Ajay Kumar of Police Station Vijay Vihar. The witness has further deposed that the deceased was brought to Dr. BSA Hospital with history of stab injuries on 25.03.2013. He has proved that on external examination of the body he found five injuries on the body of the deceased, two of which were incised and three were lacerated and on internal examination cuts corresponding to the incised stab wound were found present in the chest; fluid and clotted blood was found in the peritoneum cavity of the abdomen; Liver was fragment into multiple pieces by lacerations on the right lobe. The witness has proved that he also noticed a cut injury on the right side of the D10 vertebra were indicating the use of an elongated object. He has further deposed that the details of the examination had been mentioned by him in his report Ex.PW24A/A. He has proved having opined that the cause of death was hemorrhage shock consequent to stab injury to the chest and abdomen, all injuries were antemortem, fresh at the time of death and caused by a heavy weapon with a pointed/projecting area and at least one side sharp margin and the external injuries along with internal injuries were sufficient to cause death in ordinary course of nature. According to the witness, time since death was about half a day before postmortem and about St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 22 four to six hours after the last meal.
(29) The witness has further deposed that on 25.04.2013 the Investigating Officer produced two sealed parcels before him with the seals of SK which parcels on breaking were found to contain an Axe and a Chorsi. According to the witness, on examining the weapons he gave his opinion vide Ex.PW24A/B according to which the injury No.1, 2 and 3 could be possible by the weapons produced before him. He has identified the Axe as the one which was produced before him by the Investigating Officer and whose sketch he had prepared vide Ex.PW24A/C (along with the dimensions) which Axe is Ex.P1 and one Chorsi as the one which was produced before him by the Investigating Officer and whose sketch he had prepared vide Ex.PW24A/D (along with the dimensions) which chorsi is Ex.P2.
(30) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that the injuries present on the body of the deceased could be possible on account of a fall on the Ara Machine as seen in the photograph Ex.PW6/A5. He has admitted that he had not mentioned in his report the details of which injury could be possible by which weapon and given a combine opinion in respect of all the injuries and has voluntarily explained that it was only the injury causing fragmentation to the liver with a heavy weapon like an Axe whereas other injuries could be possible by both i.e. Axe or the Chorsi. He has denied the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 23 suggestion that he was already given the history by the Investigating Officer and therefore he gave his report on the basis of the said history as given to him by the Investigating Officer. He has further denied the suggestion that he had been led in his opinion by the Investigating Officer. He has also denied the suggestion that the opinion was given in connivance with the Investigating Officer.
Nodal Officers:
(31) Initially Sh. Israr Babu, Alternate Nodal Officer from Vodafone Mobile Services has been examined as PW13. However, he had brought the record pertaining to an incorrect mobile No. i.e. 8877823767 (belongs to Bihar Circle) instead of Mobile No. 8377823767. Therefore, his testimony is not relevant to our case.
(32) Later, pursuant to an application filed by the Ld. Addl. PP for the State the Nodal Officer from Vodafone Mobile Services was called to the Court along with the record of Mobile No. 8377823767. Sh. Saurabh Aggarwal (PW13A) Nodal Officer, Vodafone Mobile Services has proved that the mobile No. 8377823767 has been issued in the name of Girish S/o Shankar Lal, R/o 13, Tilang Pur, Kotla Vihar, PhaseI & II, Delhi, vide Customer Application Form (CAF) copy of which is Ex.PW13A/A and copy of Voter I Card in support of residence proof is Ex.PW13A/B. He has also proved the Call Details of the above mobile phone from the period St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 24 1.3.2013 to 30.3.2013 which are Ex.PW13A/C, Cell ID chart which is Ex.PW13A/D and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW13A/E. (33) In his crossexamination by the Ld. Defence Counsel the witness has deposed that their main server was situated at Pune and had retrieved the call details from his personal computer set as he had a direct access to the main server. He has denied the suggestion that there was no system of regular power backup in their office resulting into a data loss or that the above calls details had been fabricated on the directions and at the instance of the Investigating Officer.
(34) PW14 Sh. Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. has proved that mobile No. 9818553961 which was issued in the name of Atul S/o Ram Swaroop, R/o H3/196, Block H, KS Nagar, Ranholla, Delhi vide Customer Application Form copy of which is Ex.PW14/A and copy of election ID card in support of residence proof which is Ex.PW14/B. He has proved the Call Details from the period 15.03.2013 to 30.03.2013 which are Ex.PW14/C (running into two pages); Cell ID Chart which is Ex.PW14/D; certificate U/s 65 B of Indian Evidence Act which is Ex.PW14/E. (35) In his crossexamination by the Ld. Defence Counsel the witness has deposed that their main server was situated at Noida and had retrieved the call details from his personal computer set as he had a direct access to the main server. He has denied the suggestion that there was no system of St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 25 regular power backup in their office resulting into a data loss or that the above calls details had been fabricated on the directions and at the instance of the Investigating Officer.
(36) PW15 Sh. Pawan Singh, Nodal Officer, Idea cellular Ltd., has proved that the mobile No. 8726964524 which was issued in the name of Sovaran, S/o Sh. Raja Ram, R/o 288, Rara da Hardoi, UP vide Customer Application Form copy of which is Ex.PW15/A and copy of election ID card in support of residence proof which is Ex.PW15/B. He has also proved the Call Details from the period 15.03.2013 to 30.03.2013 which are Ex.PW15/C (running into six pages); Cell ID Chart which is Ex.PW15/D (running into 49 pages) and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW15/E. (37) In his crossexamination by the Ld. Defence Counsel the witness has deposed that their main server was situated at Pune and he had retrieved the call details from his personal computer set as he had a direct access to the main server. He has denied the suggestion that there was no system of regular power backup in their office resulting into a data loss or that the above calls details had been fabricated on the directions and at the instance of the Investigating Officer.
Police/ Official Witnesses:
(38) PW1 Ct. Raj Kumar is a formal witness being the Special Messenger who has been examined by way of affidavit which is Ex.PW1/1 St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 26 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 25.03.2013 he took Special Report of the case and delivered the same to the Ld. MM Sh. Kishore Kumar at his residence Vijay Enclave, Dabri, Delhi and Sh. T.S. Luthra, Jt. CP/NR and DCP/OD at their residences. He has not been crossexamined by the Ld. Defence Counsel despite an opportunity being granted in this regard.
(39) PW2 Ct. Subhash is a formal witness who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on the intervening night of 2425.03.13 he and Const. Naresh were on night patrolling duty and at about 3.30 AM on receipt of information of incident, he along with Ct. Naresh reached the spot i.e Ara Machine Mange Ram Extension, Budh Vihar, PhaseII, Delhi where they met SHO, Inspector Ajay Kumar, SI Ajay Kumar, ASI Pradeep Kumar, HC Sunil Dutt and Crime Team Staff. He has further stated that the blood was scattered in the plot of Ara Machine and SI Ajay Kumar deployed Ct. Naresh at the spot for safety of spot and took him and Crime Team Staff to BSA Hospital where Incharge Crime Team Inspected the dead body of deceased at BSA Hospital and took photographs of the dead body. According to the witness, SI Ajay Kumar prepared a rukka and handed over to him for registration of case and accordingly he reached at Police Station Vijay Vihar and got the case registered.
(40) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he had received information through wireless through Duty St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 27 Officer. According to him, he did not notice any public persons at the spot. He has admitted that his signatures were not present on any document prepared by the Investigating Officer.
(41) PW3 SI Anil Kumar is a formal witness being the Crime Team Incharge who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having inspected the spot of incident as well as the Dead Body at BSA Hospital and having prepared his detail report which is Ex.PW3/A. (42) In his crossexamination the witness has deposed that he reached the spot along with the team at about 3:30 AM (midnight) and at that time there were only one or two persons present there. According to the witness, they remained at the spot including the hospital for about 1 1 ½ hours and he gave his report at the spot himself. He has admitted that his signatures were not present on any of the seizure memo prepared at the spot. (43) PW4 Ct. Om Prakash is a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Section 296 Cr.P.C.), wherein he has proved that on 2.05.13 he took 9 sealed pullandas and 3 sample seals alongwith FSL form vide RC No. 145/21/13 which is Ex.PW4/A and deposited the same with FSL after which he handed over the acknowledgment receipt which is Ex.PW4/B to the MHCM. He has not been crossexamined by the Ld. Defence Counsel despite an opportunity being given in this regard. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 28 (44) PW5 Ct. Jai Singh is a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on the intervening night of 2425.03.13 he was on Emergency Duty with SI Ajay Kumar and on receipt of DD No. 4A they reached at BSA Hospital where one Mukesh Sharma S/o Unknown r/o Ara Machine, Budh Vihar, PhaseII, Delhi was found brought dead vide MLC No. 3084/13. According to the witness, SI Ajay Kumar obtained the MLC and then examined the dead body of the deceased Mukesh and found two stab injury marks on the right side of stomach and blood oozing from the injuries had dried. He has also stated that the SHO Inspector Ajay Kumar alongwith staff also reached the hospital and examined the dead body and after sometime SI Ajay Kumar along with Crime Team staff went to the Hospital and Incharge Crime Team inspected the dead body and also took the photographs of the dead body from different angles after which the dead body was got preserved in the BSA Hospital Mortuary and he was deployed to look after the dead body. (45) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he did not make any departure entry when he left the Police Station and has voluntarily explained that the Duty Officer must have made the same. He has further deposed that there were three public persons in the hospital but he is unable to give their names and has voluntarily explained that they had came to get the deceased admitted to the hospital and had disclosed the identity of the deceased. He has also deposed St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 29 that SI Ajay Kumar did not record the statement of any of the said boys in his presence. He also does not recollect if his signatures were present on any of the documents prepared by the Investigating Officer. He has denied the suggestion that his signatures were not present on any of the documents because he did not join the investigations with SI Ajay Kumar. (46) PW6 Ct. Harish is a formal witness being the Crime Team Photographer who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 25.03.13 he visited the spot of incident i.e. Mange Ram Extension near Brahm Shakti Hospital and Ara Machine plot measuring about 250 Sq. Yards and BSA Hospital with Incharge Crime Team and took photographs of the site as well as of the dead body of deceased from different angles which photographs were Ex.PW6/A1 to Ex.PW6/A21 and negatives of the same are collectively Ex.PW6/B. (47) In his crossexamination by the Ld. Defence Counsel the witness has deposed that they reached the spot at around 3:30 AM and reached the hospital at around 4:30 AM. According to the witness, after taking the photographs of the body in the hospital he was relieved. (48) PW7 HC Sukhpal is a formal witness being the Duty Head Constable at BSA Hospital who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on the night intervening 24/25.03.13 he was deployed as St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 30 duty Head Constable at BSA Hospital and at about 1.20 AM, Atul Sharma S/o Sh. Ram Swaroop Sharma; Ajay Sharma S/o Sh. Ram Swaroop Sharma both resident of Ara Machine, Budh Vihar PhaseII and Ram Avtar Sharma S/o Lotan Sharma R/o C1/20 Mange Ram Park Extension, Budh Vihar PhaseII, Delhi got admitted one Mukesh Sharma S/o unknown aged 20 years R/o Ara Machine, Budh Vihar PhaseII, Delhi having stab injuries vide MLC No. 3084/13 who was declared brought dead by the doctor. He has further deposed that he informed the Duty Officer Police Station Vijay Vihar through telephone and got lodged DD No. 4A dated 25.03.13. (49) In his crossexamination by the Ld. Defence Counsel the witness has deposed that the boys i.e. Atul, Ajay and Ram Avtar had given the history that the deceased had come from outside while they were working at Ara Machine in the factory carrying a knife and suddenly fell down on the Ara Machine. According to the witness, he did not check the body. He has also deposed that all the three boys appeared to be normal when they came to the hospital and did not appear to be scared or disturbed. He has further stated that the said boys also did not try to run away and remained there till the local police had come and cooperated with the investigations. (50) PW8 Ct. Naresh is a formal witness who has been examined by way of affidavit which is Ex.PW8/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on the night intervening 2425.03.13 he and Ct. Subhash were deployed for night patrolling duty and at about 3.30 AM, on receipt of information of incident, he along with Ct. Subhash St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 31 reached at the spot i.e. Ara Machine Mange Ram Extension, Budh Vihar PhaseII, Delhi where they met SHO, Inspr. Ajay Kumar, SI Ajay Kumar, ASI Pardeep Kumar, HC Sunil Dutt and Crime Team Staff. He has further stated that the blood was scattered in the plot of Ara Machine and SI Ajay Kumar deployed him at the spot for safety of spot.
(51) In his crossexamination by the Ld. Defence Counsel the witness has deposed that they reached the spot at about 3:30 AM and there were only twothree boys present over there but he cannot tell their names. He was asked by the SHO to preserve the area and therefore he remained there till next day afternoon i.e. till 11:00AM12:00 noon. (52) PW9 HC Sunil Dutt is a formal witness who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 26.03.13, he along with SI Ajay Kumar had gone to BSA Hospital mortuary for conducting the postmortem examination on the dead body of deceased Mukesh and after postmortem Doctor handed over one sealed dibbi / box containing blood organ of deceased and one sample seal with the seal of DEPT OF FM DR BASH GOVT OF DELHI which were taken into possession vide memo Ex.PW9/A by SI Ajay Kumar. He further deposed that on 19.04.12 he took two sealed pullandas of Kulhari and Chorshi from MHC(M/CP and one request letter for taking opinion and handed over the same to HOD Forensic Department, BSA Hospital. He has further deposed that on 25.04.13, he took two sealed pullandas and one sample seal with the seal of Department St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 32 of FM DR. BASH GOVT OF DELHI and opinion of doctor and pullandas and sample seal were handed over to MHC(M)/ CP and opinion to the Investigating Officer. According to the witness, so long as the exhibits remained safe during his custody and nobody had tampered the same. This witness has not been crossexamined by the Ld. Defence Counsel despite being given an opportunity given in this regard.
(53) PW10 HC Sunil Kumar is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved having lodged the DD No. 9A copy of which is Ex.PW10/A, copy of FIR which is Ex.PW10/B and his endorsement on rukka which is Ex.PW10/C. He has not been crossexamined by the Ld. Defence Counsel despite being given an opportunity in this regard.
(54) PW11 HC Rakesh Kumar is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in Register No. 19 vide Mud No. 176/13 copy of which was Ex.PW11/A (running into two pages); Mud No. 179/13 copy of which is Ex.PW11/B; Mud No. 180/13 copy of which is Ex.PW11/C (running into five pages); RC No. 145/21/13 copy of which is Ex.PW4/A and copy of FSL receipt copy of which is Ex.PW4/B. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 33 (55) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that the entires in the register No. 19 had been fabricated and manipulated by him at the instance of senior officers. He has further denied the suggestion that the pullandas which were handed over to him were unofficially returned by him to the Investigating Officer and was tampered to create evidence in the case.
(56) PW12 Insp. Manohar Lal is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) who has proved having visited the spot of incident and having later on prepared the scaled site plan Ex.PW12/A. (57) In his crossexamination by the Ld. Defence Counsel the witness has admitted that he did not prepare the actual scaled site plan at the spot and has voluntarily explained that he only prepared the rough notes there. He has admitted that he did not hand over these rough notes to the Investigating Officer and has voluntarily explained that he destroyed the same. He has denied the suggestion that he did not visit the spot to inspect the same or that he did not prepare the actual site plan as per the instructions of the Investigating Officer.
(58) PW23 HC Parmender Kumar has deposed that on 27.03.2013 he was posted at Police Station Vijay Vihar and on that day he had joined the investigations with Inspector Sunil Kumar, SI Ajay and Ct. Subhash. He has further deposed that they started from the Police Station in an official St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 34 gypsy and when they reached Kanjhawala road near Budh Vihar, a secret informer met Insp. Sunil Kumar and informed him that the accused wanted in the murder of Mukesh had been seen going towards the Ara Machine Factory of Lal Singh on which they went towards the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School, the Investigating Officer stopped the gypsy and tried to join fourfive public persons to join the police party but they refused and went away without disclosing their names and addresses. He has also deposed that thereafter without wasting any time they went towards the main road and the secret informer pointed out towards one person standing near the Ara Machine as the accused wanted in the present case. The witness has testified that thereafter he along with SI Ajay apprehended the said boy who was trying to flee on seeing them and was interrogated on which he confirmed his name as Atul (correctly identified by the witness). According to him, the personal search of the Atul was taken in which Rs. 100/, two mobile phones, some visiting cards etc were recovered after which the Investigating Officer arrested accused Atul vide memo Ex.PW23/A, his personal search was taken vide Ex.PW23/B and his disclosure statement was recorded vide memo Ex.PW23/C. He has further deposed that pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags and disclosed that with this chorsi he had killed Mukesh. The witness has also deposed that the accused then took them to St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 35 one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades on which the Investigating Officer then prepared the khakha/ sketch of the chorsi vide Ex.PW23/D and measured the same. The total length of chorsi was 22 cm, the blade was 12 cm and handle was 10 cm and maximum width 3cm. He has further deposed that Investigating Officer then converted the same into a pullanda with the help of a cloth and sealed the same with the seal of SK and seized the same vide memo Ex.PW23/E and the handle of the Axe was also measured which was found to be 33 cm. He has further deposed that it was then converted into a pullanda with the help of white cloth and sealed with the seal of SK and thereafter seized vide memo Ex.PW23/F. According to the witness, the accused then took them to a nala near the Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident. He has further deposed that Investigating Officer converted the same into pullanda with the help of white cloth and sealed the same with the seal of SK and seized vide memo Ex.PW23/G. He has proved that two mobile phones which were recovered from the possession of the accused were separately seized after they were converted into one pullanda and sealed with the seal of SK which seizure memo is Ex.PW23/H. According to him, thereafter they returned to the Police Station where his statement was recorded and he was relieved. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 36 (59) Leading questions were put to the witness by the Ld. Addl. PP for the State wherein the witness has admitted that the accused took them to the spot of the incident and pointed out the place of occurrence after which Investigating Officer prepared the pointing out memo which is Ex.PW23/I. (60) He has correctly identified the accused Atul Sharma in the Court and also the case property i.e. the Axe got recovered by accused which is Ex.P1; one Chorsi as got recovered by the accused which is Ex.P2; one shirt and one jeans to be clothes of the accused got recovered by accused which shirt is Ex.P3 and jeans pant is Ex.P4. (61) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he did not make his separate departure entry and has voluntarily explained that the SHO had made a combine entry. According to the witness, the secret informer had met Insp. Sunil Kumar at around 99:15 AM and has also admitted that SHO briefings take place at 9AM. The witness has further deposed that on that day he did not see any briefing taking place because he was with the SHO. He has denied the suggestion that they did not leave the Police Station at 9 AM or that the secret informer had not met the SHO at 99:15 AM since they were all in the Police Station. According to the witness, secret informer met them at Kanjhawala road near Budh Vihar Y Block Nala and he was alone at that time but he could not hear what the secret informer was telling Insp. Sunil Kumar. He has also deposed that in his presence Inspector Sunil Kumar did not convey the secret information to the senior officers either orally or in writing. The St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 37 witness has further deposed that at that place from where they had received information, Investigating Officer did not join any public person when they proceeded further. He is unable to tell the names and addresses of the public persons when they reached the main road, whom the Investigating Officer had requested for joining the police party. According to him, the Investigating Officer did not call the owner of the factory/place where the Ara Machine was installed either before or after the apprehension of the accused. He has testified that the Investigating Officer also did not call the neighbors and persons from the neighboring factories to join the investigations when the accused was apprehended. He has denied the suggestion that the accused Atul Sharma was lifted from his house at Budh Vihar and illegal detained in the Police Station where he was compelled to sign blank documents which were converted into memos and disclosure statement later on. He has further denied the suggestion that the accused did not make any disclosure statement or that the made the same of his own. According to him, all the documents were prepared by the Investigating Officer in the factory while sitting on the takhat. He has also deposed that it took about 22 ½ hours to prepare all the documents. He has admitted that the place from where the Axe and the chorsi were allegedly recovered was an open area which was accessible to public persons. He has also admitted that the gadda near the Bharam Shakti Hospital from where the accused allegedly got recovered his clothes was an open ground accessible to persons. He has further denied the suggestion that the accused did not got St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 38 any Axe or Chorsi recovered or that the same were planted on the accused to falsely implicate him in the present case. According to the witness, the Investigating Officer was not wearing any gloves when he took into possession the Axe and the Chorsi and in his presence no finger prints were lifted from the same. He has further denied the suggestion that the accused was not apprehended or arrested in the manner as deposed by him or that the accused do not got recovered any clothes from gadda near Bharam Shakti Hospital. The witness has also denied the suggestion that the compelled the accused to hand over one pair of his clothes to him which he planted on the accused to connect him with the case. He is not aware if the accused was the one who had carried the deceased to the hospital for treatment or had remained there till the local police arrived in the hospital for investigations. He has further denied the suggestion that the investigations had been diverted upon the accused only to falsely implicate him in the present case.
(62) PW24 SI Ajay Kumar has deposed that on 24.03.2013 he was posted at Police Station Vijay Vihar and on that day at about 1:30 AM (midnight) he received information from the Duty Officer regarding one deceased being brought to the hospital in a injured condition having deep cuts on his body. According to the witness, on receipt of this information he along with Ct. Jai Singh reached BSA Hospital where they met the Duty Head constable and three public persons namely Atul (accused before this court and correctly identified by the witness), Ajay and one Ram Avtar. He St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 39 has testified that the deceased was lying on a stretcher and the doctor had declared him 'Brought Dead'. He further deposed that he collected the MLC and questioned the three boys who informed that the said boy Mukesh was also working with them on Ara and was injured while working on the Ara. The witness has also deposed that the doctor on duty also handed over to him the clothes of the deceased in a sealed condition duly sealed with the seal of the hospital and in the meanwhile the SHO and the ATO also reached the hospital and he handed over the MLC and the sealed pullanda to the SHO. He has further deposed that SHO Inspector Sunil Kumar then interrogated the three boys and made a request to the CMO Mortuary to preserve the body and Ct. Jai Singh was left at the hospital for preserving the body. He has also deposed that he along with SHO and other staff reached the Ara Factory and in the meanwhile the SHO had already made a call to the Crime Team. According to the witness, after they reached the spot, they opened the room where the Ara was installed, and found blood scattered all over the bricks. In the meanwhile the Crime Team reached the spot and inspected the same and took photographs. He has also deposed that thereafter on the directions of the SHO, he went to the hospital along with the Crime Team where the photographs of the body of the deceased were taken. He has proved having made his endorsement on DD No. 4A vide Ex.PW24/A which endorsement is Ex.PW24/B which was converted into a tehrir and was handed over to Ct. Subhash with the directions for the registration of the case. He has further deposed that he St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 40 remained in the hospital and after some time the SHO also reached the hospital and in the meanwhile Ct. Subhash returned to the hospital along with original tehrir and copy of the FIR which he handed over to Insp. Sunil Kumar. The witness has testified that the Investigating Officer then lifted various exhibits from the spot i.e. blood stained brick and another half brick without any blood, both the bricks were then separately converted into pullanda with the help of plastic container and sealed with the seal of SK. He has further deposed that the Investigating Officer also lifted blood with the help of cotton and put the same in two different containers and converted the same into pullandas with the help of cloth and sealed the same with the seal of SK and the Investigating Officer then seized the above exhibits vide memo Ex.PW24/C (bricks and blood sample). He has proved that the Investigating Officer also prepared the seizure memo of the pullanda containing the clothes of the deceased and the sample seal of the hospital vide memo Ex.PW24/D after which they returned to the Police Station where the Investigating Officer deposited the seized articles in the malkhana.
(63) The witness has further deposed that on 26.03.2013 he also joined the investigations in the present case and on the directions of the Investigating Officer and went to BSA hospital where the postmortem of the deceased was got conducted. He has proved the application to the CMO mortuary for conducting the postmortem on the dead body which is Ex.PW24/E. According to him, the relatives of the deceased had also come St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 41 to the hospital and identified the dead body vide memos Ex.PW20/A and Ex.PW22/A and after postmortem dead body was handed over to the relatives of the deceased vide memo Ex.PW20/B. He has also deposed that after the postmortem the doctor handed over to him one sealed plastic container bearing the seal of the hospital containing the blood gauze of the deceased along with sample seal. He has further deposed that he seized the same vide memo Ex.PW9/A after which he returned to the Police Station where he deposited the pullanda in the malkhana and his statement was recorded after which he was relieved.
(64) According to the witness, on 27.03.2013 he again joined the investigations in the present case along with Inspector Sunil Kumar, HC Parmender and Ct. Subhash and other staff and they started from the Police Station at around 8:15 AM in an official gypsy in search of the accused and when they reached near Rithala Kanjhawala Road, a secret informer met Insp. Sunil Kumar who informed him that the accused namely Atul wanted in the murder of Mukesh had been seen going towards the Ara Machine factory of Lal Singh. He has testified that thereafter the secret informer took them to the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School, the secret informer while concealing himself pointed out towards one person standing near Ara Machine as the accused wanted in the present case. The witness has also deposed that thereafter he along with HC Parmender went near the said boy and on seeing them the said boy became apprehensive and tried to St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 42 flee but they managed to catch him and on interrogation he confirmed his name as Atul and also admitted his involvement in the murder of Mukesh. He has further deposed that the personal search of the Atul was taken in which Rs.100/, two mobile phones, some visiting cards etc were recovered after which the Investigating Officer arrested accused Atul vide memo Ex.PW23/A, his personal search memo was prepared vide Ex.PW23/B and his disclosure statement was recorded vide memo Ex.PW23/C. The witness has also deposed that pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags. He has clarified that it was lying in a polythene bag in an open condition and the accused disclosed that with this chorsi he had killed Mukesh. According to the witness, the accused then took them to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades on which the Investigating Officer prepared the khakha/ sketch of the chorsi vide Ex.PW23/D, the total length of chorsi was 22 cm, the blade was 12 cm and handle was 10 cm and maximum width 3cm. He has proved that the Investigating Officer then converted the same into a pullanda with the help of a cloth and sealed the same with the seal of SK and seized the same vide memo Ex.PW23/E and the handle of the Axe was also measured and was found to be 93 cm. He has also proved that it was then converted into pullanda with the help of white cloth and sealed with the seal of SK and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 43 thereafter seized vide memo Ex.PW23/F. He has testified that the accused then took them to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident. He has testified that the Investigating Officer converted the same into pullanda with the help of white cloth and sealed the same with the seal of SK and seized vide memo Ex.PW23/G. He has also deposed that two mobile phones which were recovered from the possession of the accused were separately seized after they were converted into one pullanda and sealed with the seal of SK after which they were seized vide memo Ex.PW23/H. According to the witness, the accused took them to the spot of the incident and pointed out the place of occurrence after which the Investigating Officer prepared the pointing out memo which is Ex.PW23/I. According to him, thereafter they returned to the Police Station after the accused was got medically examined and the case property was deposited in the Malkhana and his statement was recorded after which he was relieved. (65) He has correctly identified the accused Atul Sharma in the Court and also identified the case property i.e. the Axe got recovered by accused which is Ex.P1; one Chorsi as got recovered by the accused which is Ex.P2; one shirt and one jeans to be clothes of the accused got recovered by accused which shirt is Ex.P3 and jeans pant is Ex.P4. (66) In his crossexamination by the Ld. Defence Counsel the witness has deposed that on receipt of the information from Duty Officer when they St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 44 reached the hospital and interrogated accused Atul, Ajay and Ram Avtar, he did not record their statements nor Insp. Sunil Kumar did not record their statements in his presence. He has admitted that when he saw these three boys they were perfectly in a normal condition and cooperated with him. He has testified that on the second occasion the secret informer had pointed out towards accused Atul Sharma he had recognized him as the person whom he had met in the hospital on the first day. According to the witness, he did not inform the Investigating Officer in his statement under Section 161 Cr.P.C. that the accused Atul was the same person whom he had seen in the hospital for the first day. The witness has also admitted that the clothes of all the three boys were also blood stained because they had brought the deceased to the hospital and has again clarified that he is not sure if all the three boys had blood stains on their clothes. He has testified that in the hospital neither he nor the Investigating Officer had seized the clothes of these three boys. According to the witness, he did not give any information to the family of deceased regarding his death and has voluntarily explained that the Investigating Officer had given the information. The witness has also deposed that the secret informer had met Insp. Sunil Kumar at around 9:15 AM. He has admitted that SHO briefing takes place at 9AM and has stated that on that day no briefing took place in the Police Station. He has denied the suggestion that they did not left the Police Station at 9 AM or that the secret informer had not met the SHO at 99:15 AM since they were all in the Police Station.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 45 (67) The witness has further deposed that the secret informer met them at Rithala Kanjhawala Road near Budh Vihar Y Block nala and was alone at that time but he could not hear what the secret informer was telling Insp. Sunil Kumar and has voluntarily explained that it was Insp. Sunil Kumar who conveyed this information to them. The witness has testified that in his presence Insp. Sunil Kumar did not convey the secret information to the senior officers either orally or in writing. According to him, at the place where they had received information, they were standing near Meera Public School Investigating Officer had tried to join public person but they refused. He is unable to tell the names and addresses of the public persons when they reached the main road, whom the Investigating Officer had requested for joining the police party and has stated that the Investigating Officer did not call the owner of the factory/place where the Ara Machine was installed either before or after the apprehension of the accused. The witness has testified that the Investigating Officer also did not call the neighbors and persons from the neighboring factories to join the investigations when the accused was apprehended. He has further denied the suggestion that the accused Atul Sharma was lifted from his house at Budh Vihar and illegal detained in the Police Station where he was compelled to sign blank documents which were converted into memos and disclosure statement later on. He has further denied the suggestion that accused did not make any disclosure statement or that he prepared the same of his own. He has deposed that all the documents were prepared by the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 46 Investigating Officer in the factory while sitting on the charpai and it took about 2 hours to prepare all the documents. He has admitted that the place from where the Axe and the chorsi were allegedly recovered is an open area which is accessible to public persons. He has also admitted that the gadda near the Bharam Shakti Hospital from where the accused allegedly got recovered his clothes was an open ground accessible to persons. He has denied the suggestion that the accused did not get any Axe or Chorsi recovered or that the same were planted on the accused to falsely implicate him in the present case. The witness has further deposed that the Investigating Officer was not wearing any gloves when he took into possession the Axe and the Chorsi and in his presence no finger prints were lifted from the same. He has denied the suggestion that the accused was not apprehended or arrested in the manner as deposed by him or that the accused did not get recovered any clothes from gadda near Bharam Shakti Hospital. He has also denied the suggestion that he compelled the accused to hand over one pair of his clothes to him which he planted on the accused to connect him with the case or that the investigations had been diverted upon the accused only to falsely implicate him in the present case. (68) PW25 Insp. Sunil Kumar has deposed that on 25.03.2013 he was posted as SHO Police Station Vijay Vihar and on that day at about 2:30 AM (midnight) he received a phone call from SI Ajay who informed him that he received DD No. 4A regarding one person injured with Ara Machine had been received in BSA Hospital and declared as "Brought Dead" and he St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 47 called him in the hospital. According to the witness, he along with Insp. ATO reached at BSA hospital where SI Ajay, Ct. Jai Singh and duty HC Sukhpal met him there and three boys namely Atul, Ajay and Ram Avtar also met him in the hospital who had brought the injured to the hospital. He has further deposed that he saw the MLC in the MLC book and noticed that there were stab injuries mentioned in the MLC after which he examined the dead body and injuries on the dead body in the mortuary. The witness has also deposed that he left Ct. Jai Singh in the mortuary for preserving the dead body and he along with SI Ajay and ATO reached to the spot and called the Crime Team. According to the witness he inspected the spot i.e. a room at Mange Ram Park Extension and found one Ara Machine lying in a room and also found blood scattered in the room. He has further deposed that in the meanwhile Crime Team reached the spot and inspected the scene of crime and took the photographs. The witness has further deposed that Ct. Naresh and Ct. Subhash who were on patrolling duty also reached the spot and after getting the spot inspected by Crime Team he directed SI Ajay and Ct. Subhash to go to the hospital along with Crime Team while he remained at the spot for further inquiry. According to the witness, thereafter Ct. Subhash came to him along with original tehrir and copy of FIR and handed over the same to him. He has further deposed that he left Ct. Naresh at the spot for preserving the same whereas he along with staff and ATO went to the Hospital and instructed the Crime Team to remain in the Hospital till his reaching there. The witness has also deposed that in the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 48 Hospital SI Ajay handed over the clothes of the deceased in sealed condition along with sample seal to him which were handed over to him by the doctor and he seized the same vide memo Ex.PW24/D and recorded the statements of Crime Team Incharge SI Anil and Ct. Harish.
(69) The witness has testified that thereafter he along with SI Ajay and other staff reached back to the spot where he lifted various exhibits from the spot i.e. blood stained brick and another half brick without any blood with help of chenni hathora, both the bricks were then separately converted into pullanda with the help of plastic container and sealed with the seal of SK. He has further proved having lifted blood with the help of cotton and put the same in two different containers and converted the same into pullandas with the help of cloth and sealed the same with the seal of SK and he then seized the above exhibits vide memo Ex.PW24/C (bricks and blood sample) and the seal after use was handed over to SI Ajay. The witness has testified that he informed one Vandana and Ranjana about the death of Mukesh through telephone and thereafter he again interrogated Ajay, Atul and Ram Avtar at the spot whom he had earlier interrogated in the hospital also. According to the witness, during interrogation Ajay informed that he and owner of Ara Machine namely Lal Singh were consuming liquor under the chappar near Ara Machine then at around 9:3010 PM Atul and Mukesh came there in a drunken condition and Ajay told both of them to cook the food while he along with Lal Singh continued to take liquor. He has further deposed that Ajay also informed that after St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 49 sometime Atul came to them and informed that Mukesh was lying on the floor in the pool of blood in a room on which both Ajay and Lal Singh rushed towards the said room and they also called neighbor Ramavtar after which they all had taken Mukesh to BJRM hospital with the help of a Rehri. According to the witness, when he interrogated Lal Singh and Ramavtar they also disclosed about the same facts which were told to him by Ajay. He has further deposed that thereafter he made inquiries in the nearby area but nobody had informed anything about the present incident. The witness has testified that thereafter he prepared the scaled site plan without scale which is Ex.PW25/A and recorded statements of SI Ajay, Ct. Subhash and Ct. Naresh. He has also deposed that thereafter they returned to the Police Station where he deposited the seized articles in the Malkhana. The witness has further deposed that Ct. Raj Kumar who had gone to handover the special report to the Ld. MM, returned back to the Police Station and reported to him on which he recorded his statement. According to him, thereafter he went to the hospital where he recorded the statement of HC Sukhpal.
(70) He has also deposed that on the next day i.e. 26.03.2013 relatives of the deceased came to the Police Station and met him after which he send the relatives of the deceased to the BSA Hospital/ Mortuary along with SI Ajay and HC Sunil Dutt for identification of the dead body and for conducting the postmortem on the dead body of the deceased. The witness has further testified that after conducting the postmortem SI Ajay along St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 50 with HC Sunil Dutt and relatives of the deceased came back to the Police Station and SI Ajay deposited the sealed pullanda with the MHC(M). He has also deposed that thereafter he recorded the statements of SI Ajay, HC Sunil Dutt, Raju, wife of deceased namely Ranjana and father of deceased namely Sharwan Kumar. According to him, on 27.03.2013 at about 8:15 AM he along with SI Ajay, HC Parmender and Ct. Subhash and other staff, Driver Operator started from the Police Station in the official gypsy in search of the accused and when they reached near Kanjhawala road, near Bharam Shakti Hospital a secret informer met him and informed him that the accused namely Atul wanted in the murder of Mukesh had been seen going towards the Ara machine factory of Lal Singh. He has further deposed that he after sharing the secret information requested 45 public persons to join the police party but none agreed and left without disclosing their names and addresses. He has testified that the secret informer took them to the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School where the secret informer while concealing himself pointed out towards one person standing near Ara Machine as the accused wanted in the present case. He has also deposed that thereafter SI Ajay along with HC Parmender went near the said boy and on seeing them the said boy became apprehensive and tried to flee but they managed to catch him and on interrogation he confirmed his name as Atul (whom the witness has correctly identified in the Court) and also admitted his involvement in the murder of Mukesh. He St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 51 has further deposed that the personal search of the Atul was taken in which Rs.100/, two mobile phones, some visiting cards etc were recovered after which he arrested the accused Atul vide memo Ex.PW23/A, his personal search was conducted vide memo Ex.PW23/B and his disclosure statement was recorded vide memo Ex.PW23/C. He has proved that the two mobile phones which were recovered from the possession of the accused were separately seized after they were converted into one pullanda and sealed with the seal of SK which seizure memo is Ex.PW23/H. The witness has also deposed that the accused Atul led them to the spot of incident and pointed out the place of incident after which he prepared the pointing out memo which is Ex.PW23/I. According to him, pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags which was lying in a polythene bag and disclosed that with this chorsi he had killed Mukesh. He has also deposed that the accused then took them to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades. He has proved having prepared the khakha/ sketch of the chorsi vide Ex.PW23/D and measured the same, the total length of chorsi was 22 cm, the blade was 12 cm and handle was 10 cm and maximum width 3cm and blood stains were present on the chorsi and on the Axe also. The witness has proved having converted the same into a pullanda with the help of a cloth and sealed the same with the seal of SK St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 52 and seized the same vide memo Ex.PW23/E, the handle of the Axe was also measured and was found to be 93 cm. He has also proved having converted the same into a pullanda with the help of white cloth and sealed with the seal of SK and thereafter seized vide memo Ex.PW23/F. The witness has also deposed that the accused then took them to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident. He has further deposed that he converted the same into pullanda with the help of white cloth and sealed the same with the seal of SK and seized vide memo Ex.PW23/G. According to the witness, they then returned to the Police Station after accused was got medically examined and the case property was deposited in the Malkhana after which he recorded the statements of various witnesses and relieved them. He has testified that on the same day accused was produced before the Ld. Illaka Magistrate and he was remanded to Judicial Custody.
(71) According to the witness, on the next day i.e. on 28.03.2013 he along with Inspector Manohar Lal went to the spot of incident and at his instance he prepared the rough notes and thereafter prepared the scaled site plan prepared and he recorded his statement. He has testified that on 05.04.2013 he received the Postmortem Report from BSA Hospital and placed the same in the file. He has also deposed that on 06.04.2013 and on 10.04.2013 he obtained the Call Details Record along with ownership record and placed the same on the record. He has further deposed that on St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 53 19.04.2013 he send HC Sunil Dutt to BSA Hospital along with weapon of offence regarding opinion in respect of weapon of offence along with his application and after obtaining the subsequent opinion HC Sunil Dutt handed over the same to him on 25.04.2013. According to him, he deposited the case property in the malkhana and placed the subsequent opinion report in the file and recorded the statements of HC Sunil Dutt and HC Rakesh MHC(M). He has testified that on 02.05.2013 he deposited the exhibits with FSL Rohini and on 22.05.2013 he received the Crime Team Report and photographs from Crime Team and placed the same in the file. He has testified that on 17.06.2013 he recorded the statement of Greesh Kumar and after necessary investigations prepared the charge sheet and filed the same in the court.
(72) He has correctly identified the accused Atul Sharma in the Court and also identified the case property i.e. the Axe got recovered by accused which is Ex.P1; one Chorsi as got recovered by the accused which is Ex.P2; one shirt and one jeans to be clothes of the accused got recovered by accused which shirt is Ex.P3 and jeans pant is Ex.P4. (73) In his crossexamination by the Ld. Defence Counsel the witness has deposed that initially in the hospital he did not record the statements of Ajay, Atul and Ramavtar and has voluntarily explained that he had mentioned regarding interrogation in the case diaries. He has admitted that when he saw these three boys they were scared and were not able to give the reply of his queries properly. He does not recollect if the clothes of Ajay, St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 54 Atul and Ramavtar were smeared with blood when he met them in the hospital. He has also deposed that on the second occasion the secret informer had pointed out towards accused Atul Sharma he had recognized him as the person whom he had met in the hospital on the first day after his apprehension since when the secret informer pointed out towards him his face was towards other side and in the hospital he did not seize the clothes of those three boys. According to the witness, the secret informer had met him at around 9:15 AM. He has admitted that the SHO briefing takes place at 9AM and on that day he did not conduct the briefing and has voluntarily explained that in his absence Inspector ATO used to conduct the briefing proceedings. He has denied the suggestion that they did not left the Police Station at 8:15 AM or that the secret informer had not met him at 99:15 AM since they were all in the Police Station. The witness has also deposed that the secret informer met them at Kanjhawala Road near Bharam Shakti Hospital and he was alone at that time. According to the witness, he had conveyed the secret information to the senior officers but he does not recollect the name of the secret informer. He has also deposed that he did not give any notice to those public persons who refused to join the investigations. The witness has testified that he did not call the owner of the factory/ place where the Ara Machine was installed either before or after the apprehension of the accused and has voluntarily explained that the does not reside there and he had requested some public persons and passerby to join the police party but they refused. He has denied the suggestion that the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 55 accused Atul Sharma was lifted from his house at Budh Vihar and illegally detained in the Police Station where he was compelled to sign blank documents which were converted into memos and disclosure statement later on. The witness has also denied the suggestion that accused did not make any disclosure statement or that the he had made the same of his own. According to him, all the documents were prepared by him in the factory outside the room and it took about 22 ½ hours to prepare all the documents. He has admitted that the place from where the Axe and the chorsi were allegedly recovered was an open area but he has denied the suggestion that the said place is accessible to public persons. He has also admitted that the gadda near the Bharam Shakti Hospital from where the accused allegedly got recovered his clothes is an open ground but has denied the suggestion that the said place is accessible to the public persons. He has explained that this place is 50 meters away from the back side of Bharam Shakti Hospital. According to the witness, he did not join any guard or staff of Bharam Shakti Hospital in the proceedings and has voluntarily explained that the first main gate hospital is around half kilometer away from the place of recovery. He has further denied the suggestion that the accused did not got any Axe or Chorsi recovered or that the same were planted on the accused to falsely implicate him in the present case. According to the witness, he was not wearing any gloves when he took into possession the Axe and the Chorsi and no fingerprints were lifted from the same and has voluntarily explained that the accused himself had taken out the Chorsi and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 56 Axe from garbage dump. The witness has also denied the suggestion that the accused was not apprehended or arrested in the manner as deposed by him or that the accused did not get recovered any clothes from gadda near Bharam Shakti Hospital. He has further denied the suggestion that he compelled the accused to hand over one pair of his clothes to him which he planted on the accused to connect him with the case or that the investigations had been diverted upon the accused only to falsely implicate him in the present case. The witness has denied the suggestion that he did not conduct the investigations in fair and proper manner or that all the writing work was done while sitting in the Police Station. STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(74) After completion of prosecution evidence the statement of the accused Atul Sharma was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him which he has denied. According to the accused, he is innocent and has been falsely implicated because he was engaged to be married with Ranjana which marriage was broken after which Ranjana was forcibly married to Mukesh (deceased) and even after the marriage she made contact with him on telephone. He has further stated that it was after the marriage of Ranjana with Mukesh that he came to know him because he was staying in the same area. He has also stated that on the date of incident he saw him in an injured condition at the gate of his factory and he took him to the hospital with the assistance of his brothers Ram St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 57 Avtar and Ajay who were also working in the same factory. However, the accused Atul Sharma did not examine any witness in his defence.
FINDINGS:
(75) I have heard the arguments advanced before me by the Ld. Addl.
Public Prosecutor for the State and the Ld. Defence Counsels. I have also gone through the memorandum of arguments filed on behalf of the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public witnesses:
1. Ms. Ranjana She is the wife of the deceased Mukesh who has deposed on
(PW16) the following aspects:
1. That in her neighbourhood, maternal uncle of accused Atul (whom she has correctly identified in the Court) namely Ram Narayan was residing and the mother of the accused, his two brothers namely Ajay and Chhotu and his sister were also residing.
2. That being neighbour the accused Atul extended a friendship with her and Ram Narayan, the maternal uncle of accused Atul ever asked her parents to get her and her sister married with the accused Atul and his younger brother but her parents refused to marry them with the accused Atul and his brother Ajay.
3. That her marriage had been fixed with Atul and she was having a love affair with Atul for about one year and wanted to marry him.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 58
4. That one day when her parents and family were not at home, she had gone out with Atul and stayed with him over the night and in the morning when her family came to know about it, they were very annoyed.
5. That they also went to the house of the accused Atul where there was an altercation between her family and the mama of Atul namely Ram Narain on account of which her marriage with Atul was called off.
6. That she did not want to marry anybody else and insisted to her parents that she wanted to marry Atul but they married her to Mukesh against her wishes in their native village.
7. That before her marriage with Mukesh, he i.e. Mukesh and his uncle were told about her affair with Atul and how the marriage had broken with him but Mukesh did not object to the same.
8. That even after her marriage Mukesh used to have suspicion on her and felt that she used to call Atul and was continuing her relation with him though she had no such link with Atul (mere husband ko shak hota tha ki main shadi ke bad Atul se milte thi aur Atul se phone par bhi baat karte thi par main koi baat nahi karte thi).
9. That when Mukesh last came to Delhi she was very happy and had come with one boy of the village.
10. That she was forcibly married with Mukesh (since deceased) S/o Shiv Ram, Village Tikri, PS Sursa, Distt. Hardoi, UP against her wishes.
11. That after the marriage when her husband came to their house, she got introduced Mukesh with accused Atul.
12. That even after her marriage with Mukesh, her friend circle with accused Atul remained and continued.
13. That the accused Atul and his brother Ajay used to do work of furniture in Delhi and her husband Mukesh left his village by saying that he was going to the place of work of accused Atul and would also St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 59 work there and told her that whenever she wanted to talk to him (Mukesh) she should make a missed call from the mobile number which used to remain in the house.
14. That whenever she intended to talk to her husband in Delhi she made a missed call on the mobile phone of Atul which mobile number also she does not recollect pursuant to which first of all Atul used to talk to her after making a call on her mobile number and thereafter he used to pass over the phone to her husband Mukesh.
15. That even after her marriage with Mukesh the accused Atul wanted to marry her but she refused.
16. That on 24.03.2013 or 25.03.2013 at about 11.00PM she gave a missed call on the mobile phone of accused Atul.
17. That the accused started making love talks with her and when she asked him to get her to speak to her husband, the accused Atul told that he had cleared the way and killed Mukesh who was objecting his talks with her (Pehle to idharudhar ki pyar ki batein karta raha, phir thodi der baad kaha ki maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha").
18. That the accused also told her that she and her sister Vandana should come to Delhi after which they would perform the marriage.
19. That later on, she received a telephone call from a Delhi Police Station that Mukesh had been murdered on which she alongwith her parents and her in laws came to Delhi and after completion of necessary formality, her husband Mukesh was cremated in Delhi and her statement was recorded by the police.
2. Sh. Sharvan He is the father of Ranjana and father in law of the Kumar (PW17) deceased. He has deposed on the following aspects:
1. That one Rajeshwari was the sister of Ram Narayan who was residing near their house and her three sons St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 60 and two daughters were also living with him i.e. in their parental house.
2. That the eldest son of Rajeshwari was Atul, younger to him was Ajay and the youngest son was Chhotu.
3. That Ranjana had told him that she is known to Atul and she wanted to marry Atul and she was in love affair with Atul (Haan, prem tha).
4. That after he came to know about love Affair of Ranjana and Atul and he had discussed it with his brother Muneshwar about the same.
5. That initially the marriage between Ranjana and Atul had been fixed but one day when he and his family members were away to the fields, the accused Atul lured Ranjana away and kept her with him for the whole night and it was next day morning when they came to know about the incident they even went to the uncle/ Mama of Atul namely Ram Narayan and disclosed to him the entire incident on which Ram Narayan pleaded that no action be taken and next time no such act would be repeated and therefore to save their honour in the society they broke the marriage between Atul and Ranjana and she was married to Mukesh.
6. That Ram Narayan had done GaliGalauch with him and the accused and his brother had also told him that this incident would be repeated and in this background that it was on account of his family honour i.e. izzatMaryada that they had to break the marriage between Atul and Ranjana.
7. That thereafter Ram Narayan threatened him and later on Atul also joined him by saying "koi baat nahin, shaadi mat karo, koi time ayega to batayenge".
8. That thereafter he married his daughter Ranjana to one Mukesh who was a resident of Village Tikri, PS Sursa, Distt. Hardoi, UP which was about two years prior to this incident.
9. That even when the marriage between Ranjana and Mukesh was fixed and was solemnized, Rajana St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 61 refused to marry Mukesh insisting that she would marry Atul.
10. That it was after two months of the breaking the marriage between Ranjana and Atul, that Ranjana was married to Mukesh in the village who belongs to their community but was not related to them.
11. That he had disclosed the fact regarding the broken marriage between Ranjana and Atul to the uncle/ chacha of Mukesh.
12. That Mukesh was an orphan and had been brought up by his chacha and this fact was specifically disclosed to Mukesh prior to the marriage and he had no objection about the same.
13. That after the marriage the accused Atul got friendly with his Son in law Mukesh who also came to Delhi.
14. That Mukesh had told him that even after marriage Ranjana continued to talk and communicate with Atul and he was objecting to the same.
15. That Mukesh also complained to him that Ranjana used to talk with Atul on his mobile phone.
16. That initially Mukesh was working somewhere else and it was only after the marriage that he was employed in the factory adjoining the one where Atul was working.
17. That in the month of March of that year he received a telephone call from Police Station Vijay Vihar and inquired from him about his relations with Mukesh on which he told him that Mukesh was his son in law and thereafter the police official told him that Mukesh had been murdered.
18. That thereafter he alongwith his relatives, parents of Mukesh came to Delhi where they were taken to the Hospital where they identified the dead body of Mukesh and thereafter Mukesh was cremated in Delhi.
3. Girish Chand He is the employer of the accused/ owner of the saw factory (PW18) and has deposed on the following aspects:
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 62
1. That Kotla Vihar is a kacchi colony and he is into business of carpentry.
2. That he knew Atul Sharma because his brother Ajay used to work with him and Atul also used to meet him at times.
3. That when Ajay was employed with him, he had told him that he was not having his ID proof and wanted a SIM and therefore he had given him his ID proof i.e. his voter ID Card on which Ajay obtained a Vodafone SIM No. 8377823767 which SIM was used by Ajay Sharma.
4. That Atul Sharma also used to work with him and sometimes when he used to come with Ajay, he used to work with him He has correctly identify the accused Atul Sharma in the court.
4. Virender (PW20) He is the uncle/ Phufa of the deceased who has deposed on the following aspects:
1. That on 25.03.2013 he came to Delhi to meet his nephew Mukesh but when he reached his house at Tikri, he came to know that Mukesh had been murdered.
2. That on 26.03.2013 he went to the BSA Hospital where he identified the dead body of Mukesh vide memo Ex.PW20/A and after postmortem the dead body of Mukesh was handed over to them vide handing over memo which is Ex.PW20/B.
5 Raju (PW21) He is an independent witness and a rickshaw puller by profession and known to both Mukesh and Atul as he resided in the same area, who has deposed on the following aspects:
1. That on 24.3.2013 he was going to Sunday Bazar at about 11.00PM and was returning when he saw the accused Atul while entering in the room in which Mukesh was residing.
2. That Mukesh and Atul used to work on a saw mill (Ara Machine) which was belonged to one Lal Singh.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 63
3. That thereafter he started preparing his food and went for sleep and on next day police officials came when he came to know that a murder had taken place.
4. That he had not seen accused Atul coming out from the room in which Mukesh and accused Atul were residing as tenant or told the police that Atul was having an "Axe and Chorsi" in his hands.
6. Ramu (PW22) He is the elder brother of the deceased who has deposed that on receipt of information regarding the death of his brother he came to Delhi and identified his dead body vide memo dated 26.03.2013 which is Ex.PW22/A and after the postmortem he received the dead body of his brother vide memo Ex.PW20/B. Witnesses of Medical Record:
7. Dr. Bhavna Jain This witness has proved the following aspects:
(PW19) 1. That on 25.03.2013 at about 1:20AM (midnight) the patient Mukesh Sharma S/o unknown, aged around 20 years male was brought to the Hospital by Ajay Sharma S/o Sh. Ram Swaroop Sharma with alleged history of stab injury by unknown person (as stated by accompanied person) and proper history was not available.
2. That he examined the above said patient and prepared the MLC No. 3084/13 which is Ex.PW19/A.
3. That at the time of examination the patient was not unconscious, unresponsive, BP pulse not recordable, no respiratory effort, pupils fixed and dilated, corneal reflexes absent, dolls eye movement absent, ECG straight line and hence patient was declared Brought Dead which observations were mentioned on the MLC at encircled portion X to X1.
4. That the body was handed over to the Investigating Officer via Duty Constable for further needful and postmortem at forensic department BSA hospital and the clothes of the patients were collected, sealed and handed over to the Investigating Officer.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 64
8. Dr. Vijay He is the Autopsy Surgeon who has proved the following Dhankar aspects:
(PW24A) 1. That on 26.03.2013 he conducted the postmortem on the dead body of one Mukesh, S/o Shivram, aged about 22 years on the request of SI Ajay Kumar of Police Station Vijay Vihar.
2. That the deceased was brought to Dr. BSA Hospital with history of stab injuries on 25.03.2013.
3. That on external examination of the body he found five injuries on the body of the deceased, two of which were incised and three were lacerated and on internal examination cuts corresponding to the incised stab wounds were found present in the chest; fluid and clotted blood was found in the peritoneum cavity of the abdomen; Liver was fragment into multiple pieces by lacerations on the right lobe.
4. That he also noticed a cut injury on the right side of the D10 vertebra were indicating the use of an elongated object.
5. That the details of the examination had been mentioned by him in his report Ex.PW24A/A.
6. That the cause of death was hemorrhage shock consequent to stab injury to the chest and abdomen, all injuries were antemortem, fresh at the time of death and caused by a heavy weapon with a pointed/projecting area and at least one side sharp margin and the external injuries along with internal injuries were sufficient to cause death in ordinary course of nature.
7. That time since death was about half a day before postmortem and about four to six hours after the last meal.
8. That on 25.04.2013 the Investigating Officer produced two sealed parcels before him with the seals of SK which parcels on breaking were found to contain an Axe and a Chorsi.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 65
9. That on examining the weapons he gave his opinion vide Ex.PW24A/B according to which the injury No. 1, 2 and 3 could be possible by the weapons produced before him.
He has identified the Axe as the one which was produced before him by the Investigating Officer and whose sketch he had prepared vide Ex.PW24A/C (along with the dimensions) which Axe is Ex.P1 and one Chorsi as the one which was produced before him by the Investigating Officer and whose sketch he had prepared vide Ex.PW24A/D (along with the dimensions) which chorsi is Ex.P2.
Nodal Officers:
9. Sh. Saurabh He is the Nodal Officer from Vodafone Mobile Services who Aggarwal has proved that the mobile No. 8377823767 has been issued (PW13A) in the name of Girish S/o Shankar Lal, R/o 13, Tilang Pur, Kotla Vihar, PhaseI & II, Delhi, vide Customer Application Form (CAF) copy of which is Ex.PW13A/A and copy of Voter I Card in support of residence proof is Ex.PW13A/B. He has also proved the Call Details of the above mobile phone from the period 1.3.2013 to 30.3.2013 which are Ex.PW13A/C, Cell ID chart which is Ex.PW13A/D and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW13A/E.
10. Sh. Vishal Gaurav He is the Nodal Officer from Bharti Airtel Ltd. who has (PW14) proved that mobile No. 9818553961 was issued in the name of Atul S/o Ram Swaroop, R/o H3/196, Block H, KS Nagar, Ranholla, Delhi vide Customer Application Form copy of which is Ex.PW14/A and copy of election ID card in support of residence proof which is Ex.PW14/B. He has proved the Call Details from the period 15.03.2013 to 30.03.2013 which are Ex.PW14/C (running into two pages); Cell ID Chart which is Ex.PW14/D; certificate U/s 65 B of Indian Evidence Act which is Ex.PW14/E.
11. Sh. Pawan Singh He is the Nodal Officer from Idea cellular Ltd. who has (PW15) proved that the mobile No. 8726964524 was issued in the name of Sovaran, S/o Sh. Raja Ram, R/o 288, Rara da Hardoi, UP vide Customer Application Form copy of which St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 66 is Ex.PW15/A and copy of election ID card in support of residence proof which is Ex.PW15/B. He has also proved the Call Details from the period 15.03.2013 to 30.03.2013 which are Ex.PW15/C (running into six pages); Cell ID Chart which is Ex.PW15/D (running into 49 pages) and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW15/E. Police/ official witnesses:
12. Ct. Raj Kumar He is a formal witness being the Special Messenger who has (PW1) proved that on 25.03.2013 he took Special Report of the case and delivered the same to the Ld. MM Sh. Kishore Kumar at his residence Vijay Enclave, Dabri, Delhi and Sh. T.S. Luthra, Jt. CP/NR and DCP/OD at their residences.
13. Ct. Subhash He is a formal witness who has proved the following aspects:
(PW2) 1. That on the intervening night of 2425.03.13 he and Const. Naresh were on night patrolling duty and at about 3.30 AM on receipt of information of incident, he along with Ct. Naresh reached the spot i.e Ara Machine Mange Ram Extension, Budh Vihar, Phase II, Delhi.
2. That they met SHO, Inspector Ajay Kumar, SI Ajay Kumar, ASI Pradeep Kumar, HC Sunil Dutt and Crime Team Staff at the spot.
3. That the blood was scattered in the plot of Ara Machine and SI Ajay Kumar deployed Ct. Naresh at the spot for safety of spot and took him and Crime Team Staff to BSA Hospital where Incharge Crime Team Inspected the dead body of deceased at BSA Hospital and took photographs of the dead body.
4. That SI Ajay Kumar prepared a rukka and handed over to him for registration of case and accordingly he reached at Police Station Vijay Vihar and got the case registered.
14. SI Anil Kumar He is a formal witness being the Crime Team Incharge who (PW3) has proved having inspected the spot of incident as well as the Dead Body at BSA Hospital and having prepared his detail report which is Ex.PW3/A. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 67
15. Ct. Om Prakash He is a formal witness who has proved that on 2.05.13 he (PW4) took 9 sealed pullandas and 3 sample seals alongwith FSL form vide RC No. 145/21/13 which is Ex.PW4/A and deposited the same with FSL after which he handed over the acknowledgment receipt which is Ex.PW4/B to the MHCM.
16. Ct. Jai Singh He is a formal witness who has proved the following aspects:
(PW5) 1. That on the intervening night of 2425.03.13 he was on Emergency Duty with SI Ajay Kumar and on receipt of DD No. 4A they reached at BSA Hospital where one Mukesh Sharma S/o Unknown r/o Ara Machine, Budh Vihar, PhaseII, Delhi was found brought dead vide MLC No. 3084/13.
2. That SI Ajay Kumar obtained the MLC and then examined the dead body of the deceased Mukesh and found two stab injury marks on the right side of stomach and blood oozing from the injuries had dried.
3. That the SHO Inspector Ajay Kumar alongwith staff also reached the hospital and examined the dead body and after sometime SI Ajay Kumar along with Crime Team staff went to the Hospital.
4. That the Incharge Crime Team inspected the dead body and also took the photographs of the dead body from different angles after which the dead body was got preserved in the BSA Hospital Mortuary and he was deployed to look after the dead body.
17. Ct. Harsih (PW6) He is a formal witness being the Crime Team Photographer who has proved that on 25.03.13 he visited the spot of incident i.e. Mange Ram Extension near Brahm Shakti Hospital and Ara Machine plot measuring about 250 Sq. Yards and BSA Hospital with Incharge Crime Team and took photographs of the site as well as of the dead body of deceased from different angles which photographs were Ex.PW6/A1 to Ex.PW6/A21 and negatives of the same are collectively Ex.PW6/B.
18. HC Sukhpal He is a formal witness being the Duty Head Constable at (PW7) BSA Hospital who has proved that on the night intervening 24/25.03.13 he was deployed as duty Head Constable at BSA St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 68 Hospital and at about 1.20 AM, Atul Sharma S/o Sh. Ram Swaroop Sharma; Ajay Sharma S/o Sh. Ram Swaroop Sharma both resident of Ara Machine, Budh Vihar PhaseII and Ram Avtar Sharma S/o Lotan Sharma R/o C1/20 Mange Ram Park Extension, Budh Vihar PhaseII, Delhi got admitted one Mukesh Sharma S/o unknown aged 20 years R/o Ara Machine, Budh Vihar PhaseII, Delhi having stab injuries vide MLC No. 3084/13 who was declared brought dead by the doctor. He has proved that he informed the Duty Officer Police Station Vijay Vihar through telephone and got lodged DD No. 4A dated 25.03.13.
19. Ct. Naresh (PW8) He is a formal witness who has proved that on the night intervening 2425.03.13 he and Ct. Subhash were deployed for night patrolling duty and at about 3.30 AM, on receipt of information of incident, he along with Ct. Subhash reached at the spot i.e. Ara Machine Mange Ram Extension, Budh Vihar PhaseII, Delhi where they met SHO, Inspr. Ajay Kumar, SI Ajay Kumar, ASI Pardeep Kumar, HC Sunil Dutt and Crime Team Staff. He has further proved that the blood was scattered in the plot of Ara Machine and SI Ajay Kumar deployed him at the spot for safety of spot.
20. HC Sunil Dutt He is a formal witness who has proved the following aspects:
(PW9) 1. That on 26.03.13, he along with SI Ajay Kumar had gone to BSA Hospital mortuary for conducting the postmortem examination on the dead body of deceased Mukesh.
2. That after postmortem Doctor handed over one sealed dibbi / box containing blood organ of deceased and one sample seal with the seal of DEPT OF FM DR BASH GOVT OF DELHI which were taken into possession vide memo Ex.PW9/A by SI Ajay Kumar.
3. That on 19.04.12 he took two sealed pullandas of Kulhari and Chorshi from MHC(M/CP and one request letter for taking opinion and handed over the same to HOD Forensic Department, BSA Hospital.
4. That on 25.04.13, he took two sealed pullandas and one sample seal with the seal of Department of FM St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 69 DR. BASH GOVT OF DELHI and opinion of doctor and pullandas and sample seal were handed over to MHC(M)/ CP and opinion to the Investigating Officer.
5. That so long as the exhibits remained safe during his custody and nobody had tampered the same.
21. HC Sunil Kumar He is a formal witness being the Duty Officer who has (PW10) proved having lodged the DD No. 9A copy of which is Ex.PW10/A, copy of FIR which is Ex.PW10/B and his endorsement on rukka which is Ex.PW10/C.
22. HC Rakesh He is a formal witness being the MHCM who has proved the Kumar (PW11) entry in Register No. 19 vide Mud No. 176/13 copy of which was Ex.PW11/A (running into two pages); Mud No. 179/13 copy of which is Ex.PW11/B; Mud No. 180/13 copy of which is Ex.PW11/C (running into five pages); RC No. 145/21/13 copy of which is Ex.PW4/A and copy of FSL receipt copy of which is Ex.PW4/B.
23. Inspector He is a formal witness being the Draftsman who has proved Manohar Lal having visited the spot of incident and having later on (PW12) prepared the scaled site plan Ex.PW12/A.
24. HC Parmender This witness had joined the investigations with Inspector Kumar (PW23) Sunil Kumar and SI Ajay. He has deposed on the following aspects:
1. That on 27.03.2013 he along with Inspector Sunil Kumar, SI Ajay and Ct. Subhash started from the Police Station in an official gypsy and when they reached Kanjhawala road near Budh Vihar, a secret informer met Insp. Sunil Kumar and informed him that the accused wanted in the murder of Mukesh had been seen going towards the Ara Machine Factory of Lal Singh.
2. That on this they all went towards the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School, the Investigating Officer stopped the gypsy and tried to join fourfive public persons to join the police party but they refused and went away without St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 70 disclosing their names and addresses.
3. That thereafter without wasting any time they went towards the main road and the secret informer pointed out towards one person standing near the Ara Machine as the accused wanted in the present case.
4. That thereafter he along with SI Ajay apprehended the said boy who was trying to flee on seeing them and was interrogated on which he confirmed his name as Atul (correctly identified by the witness).
5. That the personal search of the Atul was taken in which Rs.100/, two mobile phones, some visiting cards etc were recovered.
6. That the Investigating Officer arrested accused Atul vide memo Ex.PW23/A, his personal search was taken vide Ex.PW23/B and his disclosure statement was recorded vide memo Ex.PW23/C.
7. That pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags and disclosed that with this chorsi he had killed Mukesh.
8. That the accused then took them to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades on which the Investigating Officer then prepared the khakha/ sketch of the chorsi vide Ex.PW23/D and measured the same.
9. That the total length of chorsi was 22 cm, the blade was 12 cm and handle was 10 cm and maximum width 3cm.
10. That the Investigating Officer then converted the same into a pullanda with the help of a cloth and sealed the same with the seal of SK and seized the same vide memo Ex.PW23/E and the handle of the Axe was also measured which was found to be 33 cm.
11. That the Axe was then converted into a pullanda with the help of white cloth and sealed with the seal of SK St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 71 and thereafter seized vide memo Ex.PW23/F.
12. That the accused then took them to a nala near the Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident.
13. That Investigating Officer converted the same into pullanda with the help of white cloth and sealed the same with the seal of SK and seized vide memo Ex.PW23/G.
14. That the two mobile phones which were recovered from the possession of the accused were separately seized after they were converted into one pullanda and sealed with the seal of SK which seizure memo is Ex.PW23/H.
15. That the accused took them to the spot of the incident and pointed out the place of occurrence after which Investigating Officer prepared the pointing out memo which is Ex.PW23/I. He has correctly identified the accused Atul Sharma in the Court and also the case property i.e. the Axe got recovered by accused which is Ex.P1; one Chorsi as got recovered by the accused which is Ex.P2; one shirt and one jeans to be clothes of the accused got recovered by accused which shirt is Ex.P3 and jeans pant is Ex.P4.
25. SI Ajay Kumar This witness has deposed on the following aspects:
(PW24) 1. That on 24.03.2013 at about 1:30 AM (midnight) he received information from the Duty Officer regarding one deceased being brought to the hospital in a injured condition having deep cuts on his body.
2. That on receipt of this information he along with Ct. Jai Singh reached BSA Hospital where they met the Duty Head constable and three public persons namely Atul (accused before this court and correctly identified by the witness), Ajay and one Ram Avtar.
3. That the deceased was lying on a stretcher and the doctor had declared him 'Brought Dead'.
4. That he collected the MLC and questioned the three boys who informed that the said boy Mukesh was St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 72 also working with them on Ara and was injured while working on the Ara.
5. That the doctor on duty also handed over to him the clothes of the deceased in a sealed condition duly sealed with the seal of the hospital and in the meanwhile the SHO and the ATO also reached the hospital and he handed over the MLC and the sealed pullanda to the SHO.
6. He has further deposed that SHO Inspector Sunil Kumar then interrogated the three boys and made a request to the CMO Mortuary to preserve the body and Ct. Jai Singh was left at the hospital for preserving the body.
7. That he along with SHO and other staff reached the Ara Factory and in the meanwhile the SHO had already made a call to the Crime Team.
8. That after they reached the spot, they opened the room where the Ara was installed, and found blood scattered all over the bricks.
9. That in the meanwhile the Crime Team reached the spot and inspected the same and took photographs. He has also deposed that thereafter on the directions of the SHO, he went to the hospital along with the Crime Team where the photographs of the body of the deceased were taken.
10. That he made his endorsement on DD No. 4A vide Ex.PW24/A which endorsement is Ex.PW24/B which was converted into a tehrir and was handed over to Ct. Subhash with the directions for the registration of the case.
11. That he remained in the hospital and after some time the SHO also reached the hospital and in the meanwhile Ct. Subhash returned to the hospital along with the original tehrir and copy of the FIR which he handed over to Insp. Sunil Kumar.
12. That the Investigating Officer then lifted various exhibits from the spot i.e. blood stained brick and another half brick without any blood, both the bricks were then separately converted into pullanda with the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 73 help of plastic container and sealed with the seal of SK.
13. That the Investigating Officer also lifted blood with the help of cotton and put the same in two different containers and converted the same into pullandas with the help of cloth and sealed the same with the seal of SK and the Investigating Officer then seized the above exhibits vide memo Ex.PW24/C (bricks and blood sample).
14. That the Investigating Officer also prepared the seizure memo of the pullanda containing the clothes of the deceased and the sample seal of the hospital vide memo Ex.PW24/D after which they returned to the Police Station where the Investigating Officer deposited the seized articles in the malkhana.
15. That on 26.03.2013 he also joined the investigations in the present case and on the directions of the Investigating Officer and went to BSA hospital where the postmortem of the deceased was got conducted. He has proved the application to the CMO mortuary for conducting the postmortem on the dead body which is Ex.PW24/E.
16. That the relatives of the deceased had also come to the hospital and identified the dead body vide memos Ex.PW20/A and Ex.PW22/A and after postmortem dead body was handed over to the relatives of the deceased vide memo Ex.PW20/B.
17. That after the postmortem the doctor handed over to him one sealed plastic container bearing the seal of the hospital containing the blood gauze of the deceased along with sample seal.
18. That he seized the same vide memo Ex.PW9/A after which he returned to the Police Station where he deposited the pullanda in the malkhana and his statement was recorded after which he was relieved.
19. That on 27.03.2013 he again joined the investigations in the present case along with Inspector Sunil Kumar, HC Parmender and Ct. Subhash and other staff and they started from the Police Station at around 8:15 St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 74 AM in an official gypsy in search of the accused.
20. That when they reached near Rithala Kanjhawala Road, a secret informer met Insp. Sunil Kumar who informed him that the accused namely Atul wanted in the murder of Mukesh had been seen going towards the Ara Machine factory of Lal Singh.
21. That thereafter the secret informer took them to the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School, the secret informer while concealing himself pointed out towards one person standing near Ara Machine as the accused wanted in the present case.
22. That thereafter he along with HC Parmender went near the said boy and on seeing them the said boy became apprehensive and tried to flee but they managed to catch him and on interrogation he confirmed his name as Atul and also admitted his involvement in the murder of Mukesh.
23. That the personal search of the Atul was taken in which Rs.100/, two mobile phones, some visiting cards etc were recovered after which the Investigating Officer arrested accused Atul vide memo Ex.PW23/A, his personal search memo was prepared vide Ex.PW23/B and his disclosure statement was recorded vide memo Ex.PW23/C.
24. That pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags.
25. That the Chorsi was lying in a polythene bag in an open condition and the accused disclosed that with this chorsi he had killed Mukesh.
26. That the accused then took them to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades on which the Investigating Officer prepared the khakha/ sketch of the chorsi vide Ex.PW23/D, the total length of chorsi was 22 cm, the blade was 12 cm and handle St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 75 was 10 cm and maximum width 3cm.
27. That the Investigating Officer then converted the same into a pullanda with the help of a cloth and sealed the same with the seal of SK and seized the same vide memo Ex.PW23/E and the handle of the Axe was also measured and was found to be 93 cm.
28. That the Axe was then converted into pullanda with the help of white cloth and sealed with the seal of SK and thereafter seized vide memo Ex.PW23/F.
29. That the accused then took them to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident.
30. That the Investigating Officer converted the same into pullanda with the help of white cloth and sealed the same with the seal of SK and seized vide memo Ex.PW23/G.
31. That two mobile phones which were recovered from the possession of the accused were separately seized after they were converted into one pullanda and sealed with the seal of SK after which they were seized vide memo Ex.PW23/H.
32. That the accused took them to the spot of the incident and pointed out the place of occurrence after which the Investigating Officer prepared the pointing out memo which is Ex.PW23/I. He has correctly identified the accused Atul Sharma in the Court and also identified the case property i.e. the Axe got recovered by accused which is Ex.P1; one Chorsi as got recovered by the accused which is Ex.P2; one shirt and one jeans to be clothes of the accused got recovered by accused which shirt is Ex.P3 and jeans pant is Ex.P4.
26. Inspector Sunil He is the Investigating Officer of the present case who has Kumar (PW25) deposed on the following aspects:
1. That on 25.03.2013 he was posted as SHO Police Station Vijay Vihar and on that day at about 2:30 AM (midnight) he received a phone call from SI Ajay who informed him that he received DD No. 4A regarding St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 76 one person injured with Ara Machine had been received in BSA Hospital and declared as "Brought Dead" and he called him in the hospital.
2. That he along with Insp. ATO reached at BSA hospital where SI Ajay, Ct. Jai Singh and duty HC Sukhpal met him there and three boys namely Atul, Ajay and Ram Avtar also met him in the hospital who had brought the injured to the hospital.
3. That he saw the MLC in the MLC book and noticed that there were stab injuries mentioned in the MLC after which he examined the dead body and injuries on the dead body in the mortuary.
4. That he left Ct. Jai Singh in the mortuary for preserving the dead body and he along with SI Ajay and ATO reached to the spot and called the Crime Team.
5. That he inspected the spot i.e. a room at Mange Ram Park Extension and found one Ara Machine lying in a room and also found blood scattered in the room.
6. That in the meanwhile Crime Team reached the spot and inspected the scene of crime and took the photographs.
7. That Ct. Naresh and Ct. Subhash who were on patrolling duty also reached the spot and after getting the spot inspected by Crime Team he directed SI Ajay and Ct. Subhash to go to the hospital along with Crime Team while he remained at the spot for further inquiry.
8. That thereafter Ct. Subhash came to him along with original tehrir and copy of FIR and handed over the same to him.
9. That he left Ct. Naresh at the spot for preserving the same whereas he along with staff and ATO went to the Hospital and instructed the Crime Team to remain in the Hospital till his reaching there.
10. That in the Hospital SI Ajay handed over the clothes of the deceased in sealed condition along with sample seal to him which were handed over to him by the doctor and he seized the same vide memo St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 77 Ex.PW24/D and recorded the statements of Crime Team Incharge SI Anil and Ct. Harish.
11. That thereafter he along with SI Ajay and other staff reached back to the spot from where he lifted various exhibits from the spot i.e. blood stained brick and another half brick without any blood with help of chenni hathora, both the bricks were then separately converted into pullanda with the help of plastic container and sealed with the seal of SK.
12. That he lifted blood with the help of cotton and put the same in two different containers and converted the same into pullandas with the help of cloth and sealed the same with the seal of SK and he then seized the above exhibits vide memo Ex.PW24/C (bricks and blood sample) and the seal after use was handed over to SI Ajay.
13. That he informed one Vandana and Ranjana about the death of Mukesh through telephone and thereafter he again interrogated Ajay, Atul and Ram Avtar at the spot whom he had earlier interrogated in the hospital also.
14. That during interrogation Ajay informed that he and owner of Ara Machine namely Lal Singh were consuming liquor under the chappar near Ara Machine then at around 9:3010 PM Atul and Mukesh came there in a drunken condition and Ajay told both of them to cook the food while he along with Lal Singh continued to take liquor.
15. That Ajay also informed that after sometime Atul came to them and informed that Mukesh was lying on the floor in the pool of blood in a room on which both Ajay and Lal Singh rushed towards the said room and they also called neighbor Ramavtar after which they all had taken Mukesh to BJRM hospital with the help of a Rehri.
16. That when he interrogated Lal Singh and Ramavtar they also disclosed about the same facts which were told to him by Ajay.
17. That thereafter he made inquiries in the nearby area St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 78 but nobody had informed anything about the present incident.
18. That he prepared the scaled site plan without scale which is Ex.PW25/A and recorded statements of SI Ajay, Ct. Subhash and Ct. Naresh.
19. That thereafter they returned to the Police Station where he deposited the seized articles in the Malkhana.
20. That Ct. Raj Kumar who had gone to handover the special report to the Ld. MM, returned back to the Police Station and reported to him on which he recorded his statement.
21. That he them went to the hospital where he recorded the statement of HC Sukhpal.
22. That on the next day i.e. 26.03.2013 relatives of the deceased came to the Police Station and met him after which he send the relatives of the deceased to the BSA Hospital/ Mortuary along with SI Ajay and HC Sunil Dutt for identification of the dead body and for conducting the postmortem on the dead body of the deceased.
23. That after conducting the postmortem SI Ajay along with HC Sunil Dutt and relatives of the deceased came back to the Police Station and SI Ajay deposited the sealed pullanda with the MHC(M).
24. That thereafter he recorded the statements of SI Ajay, HC Sunil Dutt, Raju, wife of deceased namely Ranjana and father of deceased namely Sharwan Kumar.
25. That on 27.03.2013 at about 8:15 AM he along with SI Ajay, HC Parmender and Ct. Subhash and other staff, Driver Operator started from the Police Station in the official gypsy in search of the accused and when they reached near Kanjhawala road, near Bharam Shakti Hospital a secret informer met him and informed him that the accused namely Atul wanted in the murder of Mukesh had been seen going towards the Ara machine factory of Lal Singh.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 79
26. That he after sharing the secret information requested 45 public persons to join the police party but none agreed and left without disclosing their names and addresses.
27. That the secret informer took them to the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School where the secret informer while concealing himself pointed out towards one person standing near Ara Machine as the accused wanted in the present case.
28. That thereafter SI Ajay along with HC Parmender went near the said boy and on seeing them the said boy became apprehensive and tried to flee but they managed to catch him and on interrogation he confirmed his name as Atul (whom the witness has correctly identified in the Court) and also admitted his involvement in the murder of Mukesh.
29. That the personal search of the Atul was taken in which Rs.100/, two mobile phones, some visiting cards etc were recovered after which he arrested the accused Atul vide memo Ex.PW23/A, his personal search was conducted vide memo Ex.PW23/B and his disclosure statement was recorded vide memo Ex.PW23/C.
30. That the two mobile phones which were recovered from the possession of the accused were separately seized after they were converted into one pullanda and sealed with the seal of SK which seizure memo is Ex.PW23/H.
31. That the accused Atul led them to the spot of incident and pointed out the place of incident after which he prepared the pointing out memo which is Ex.PW23/I.
32. That pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags which was lying in a polythene bag and disclosed that with this chorsi he had killed Mukesh.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 80
33. That the accused then took them to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades.
34. That he prepared the khakha/ sketch of the chorsi vide Ex.PW23/D and measured the same, the total length of chorsi was 22 cm, the blade was 12 cm and handle was 10 cm and maximum width 3cm and blood stains were present on the chorsi and on the Axe also.
35. That he converted the same into a pullanda with the help of a cloth and sealed the same with the seal of SK and seized the same vide memo Ex.PW23/E, the handle of the Axe was also measured and was found to be 93 cm.
36. That converted the same into a pullanda with the help of white cloth and sealed with the seal of SK and thereafter seized vide memo Ex.PW23/F.
37. That the accused then took them to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident.
38. That he converted the same into pullanda with the help of white cloth and sealed the same with the seal of SK and seized vide memo Ex.PW23/G.
39. That they then returned to the Police Station after accused was got medically examined and the case property was deposited in the Malkhana after which he recorded the statements of various witnesses and relieved them.
40. That on the same day accused was produced before the Ld. Illaka Magistrate and he was remanded to Judicial Custody.
41. That on the next day i.e. on 28.03.2013 he along with Inspector Manohar Lal went to the spot of incident and at his instance he prepared the rough notes and thereafter prepared the scaled site plan prepared and he recorded his statement.
42. That on 05.04.2013 he received the Postmortem Report from BSA Hospital and placed the same in the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 81 file.
43. That on 06.04.2013 and on 10.04.2013 he obtained the Call Details Record along with ownership record and placed the same on the record.
44. That on 19.04.2013 he send HC Sunil Dutt to BSA Hospital along with weapon of offence regarding opinion in respect of weapon of offence along with his application and after obtaining the subsequent opinion HC Sunil Dutt handed over the same to him on 25.04.2013.
45. That he deposited the case property in the malkhana and placed the subsequent opinion report in the file and recorded the statements of HC Sunil Dutt and HC Rakesh MHC(M).
46. That on 02.05.2013 he deposited the exhibits with FSL Rohini and on 22.05.2013 he received the Crime Team Report and photographs from Crime Team and placed the same in the file.
47. That on 17.06.2013 he recorded the statement of Greesh Kumar and after necessary investigations prepared the charge sheet and filed the same in the court.
He has correctly identified the accused Atul Sharma in the Court and also identified the case property i.e. the Axe got recovered by accused which is Ex.P1; one Chorsi as got recovered by the accused which is Ex.P2; one shirt and one jeans to be clothes of the accused got recovered by accused which shirt is Ex.P3 and jeans pant is Ex.P4.
(76) Now coming to the microscopic evaluation of evidence against the accused Atul Sharma.
Medical Evidence:
(77) The case of the prosecution is that multiple stab injuries had been caused to the deceased Mukesh who was brought to the hospital by the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 82 accused Atul and his brothers Ajay and Ram Avtar with a history of being injured by unknown person and was declared brought dead after which the dead body was identified by the relatives of the deceased and Postmortem on the dead body was conducted. In this regard the prosecution is placing its reliance on the testimonies of Dr. Bhawna Jain (PW19) and the Autopsy Surgeon (PW24A) and the reports prepared by them.
(78) Coming first to the testimony of Dr. Bhawna Jain (PW19) who has proved that on 25.03.2013 at about 1:20AM (midnight) patient Mukesh Sharma S/o unknown, aged around 20 years male was brought by Ajay Sharma S/o Sh. Ram Swaroop Sharma (real brother of the accused Atul) with alleged history of stab injury by unknown person (as stated by accompanied person) and proper history was not available. She has proved that she examined the above patient and at the time of examination patient was not unconscious, unresponsive, BP pulse not recordable, no respiratory effort, pupils fixed and dilated, corneal reflexes absent, dolls eye movement absent, ECG straight line and hence patient was declared Brought Dead.
She has proved the MLC of the deceased which is Ex.PW19/A and her observations at point X to X1.
(79) Coming next to the testimony of Dr. Vijay Dhankar (PW24A), he has proved that on 26.03.2013 he had conducted the postmortem on the dead body of Mukesh S/o Shivram, aged about 22 years on the request of SI Ajay Kumar of Police Station Vijay Vihar.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 83 (80) He has proved that on external examination of the body he found five injuries on the body of the deceased which under:
1. Incised stab wound 4.5 cm x 1.7 cm x cavity deep, horizontally placed, present over the middle part of front of right side of chest, 3 cm from the midline and 7 cm below the nipple. The margins were clean cut, the medial angle was comparatively obtuse and the lateral angel is acute with tailing present on the lateral side. The tailing end continued into a contused abrasion 6 cm long with a width of 0.3 cm and the tailing contused abrasion was more prominent over the distal end from the main injury. I may observe that the tailing confirms that the weapon of offence was pulled out after the blow was inflicted.
2. Incised stab wound 4.3 cm x 1.4 cm x cavity deep, horizontally placed, present over the lower part of front of right side of chest, 6 cm from the midline and 10 cm from the umbilicus. The injury was 5 cm below and parallel to injury no.1 and the margins were clean cut. The medial angle was comparatively obtuse and the lateral angle is acute with tailing present on the lateral side. The tailing end continued into an injury comprising parts of laceration and contused abrasion, 6cm long with a width of 0.5 cm. This injury again confirms that the weapon of offence was pulled out after the injury was inflicted.
3. Abrasion 2 cm x 1 cm present over the lower lateral part of right side of chest situated between injury no. 1 and 2.
4. Laceration 2 cm x 0.5 cm present over the lower lateral part of right St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 84 side of back of chest.
5. Laceration 1.5 cm x 1 cm, X shaped, present over the tip of penis.
(81) The witness Dr. Vijay Dhankar has proved that on internal examination cuts corresponding to the incised stab wound were found present in the chest; fluid and clotted blood was found in the peritoneum cavity of the abdomen; Liver was fragment into multiple pieces by lacerations on the right lobe and there was a cut injury on the right side of the D10 vertebra indicating the use of an elongated object. He has proved the detail postmortem report which is Ex.PW24A/A and has opined that the cause of death was hemorrhage shock consequent to stab injury to the chest and abdomen, all injuries were antemortem, fresh at the time of death and caused by a heavy weapon with a pointed/ projecting area and at least one side sharp margin and the external injuries along with internal injuries were sufficient to cause death in ordinary course of nature. He has also proved that time since death was about half a day before postmortem and about four to six hours after the last meal. (82) The witness Dr. Vijay Dhankar (PW24A) has further proved that on 25.04.2013 the Investigating Officer produced two sealed parcels before him with the seals of SK which parcels on breaking were found to contain an Axe and a Chorsi and after examining the weapons he gave his opinion vide Ex.PW24A/B according to which the injury No.1, 2 and 3 could be possible by the weapons produced before him. He has identified the Axe St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 85 as the one which was produced before him by the Investigating Officer and whose sketch he had prepared vide Ex.PW24A/C (along with the dimensions) which Axe is Ex.P1 and one Chorsi as the one which was produced before him by the Investigating Officer and whose sketch he had prepared vide Ex.PW24A/D (along with the dimensions) which chorsi is Ex.P2.
(83) In his crossexamination by the Ld. Defence Counsel the witness has specifically denied the suggestion that the injuries present on the body of the deceased could be possible on account of a fall on the Ara Machine as seen in the photograph Ex.PW6/A5. He has however admitted that he had not mentioned in his report the details of which injury could be possible by which weapon and given a combine opinion in respect of all the injuries and has explained that it was only the injury causing fragmentation to the liver with a heavy weapon like an Axe whereas other injuries could be possible by both i.e. Axe or the Chorsi.
(84) The above Medical Evidence is compatible to the prosecution case that repeated stab injuries were caused to the deceased which injuries were sufficient to cause death in ordinary course of nature. It also demolishes the defence of the accused that the injuries were possible due to fall on the Ara/ Saw Machine as the Autopsy Surgeon has ruled out the same. Even otherwise, the photographs of the spot of the incident show that the machine is installed at a lower level and even if a person falls on the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 86 same the nature of injuries would be different in terms of shape, size and place.
Forensic Evidence:
(85) In so far as the forensic evidence on record is concerned, the accused has not disputed the Biological and Serological Reports which are Ex.PX1 and rather admits the same and hence no witness has been called to the court for formal examination. I have gone through the above reports.
The Biological Report confirms that blood was detected on Ex.1 (brick piece), Ex.2 (brick piece), Ex.3A (cotton swab), Ex.3b (cotton swab), Ex.4 (blood stained gauze), Ex.6a (shirt), Ex.6b (underwear), Ex.6c (jeans pant), Ex.6d (belt), Ex.8 (Axe), Ex.9 (Chorsi), Ex.11a (shirt of the accused) and Ex.11b (jeans pant of the accused). Further, the Serological Report establishes that Human Blood of O Group was detected on Ex.3A (cotton swab), Ex.4 (blood stained gauze), Ex.6a (shirt), Ex.6b (underwear) and Ex. 6c (jeans pant). Further, it establishes that Human Blood was detected on Ex.1 (brick piece), Ex.6d (belt), Ex.8 (Axe), Ex.9 (Chorsi), Ex.11a (shirt of the accused) and Ex.11b (jeans pant of the accused). (86) It is writ large that the forensic evidence is compatible to the prosecution case since it not only establishes the spot of incident but also it confirms the presence of Human Blood on the clothes of the accused Atul Sharma which he was wearing on the date of the incident (which is only natural because he also shifted the deceased to the hospital) but also on the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 87 weapons of offence i.e. Axe and Chorsi got recovered by him from near the garbage dump pursuant to his disclosure statement. Electronic Evidence:
(87) The case of the prosecution is that the accused Atul Kumar Sharma and Ranjana the wife of the deceased were having a roaring affair and into a relationship before marriage of Ranjana with the deceased Mukesh and were even to marry, which alliance incidentally did not materialize and even after her marriage with Mukesh, Ranjana and Atul were maintaining their telephonic contact with each other. In this regard the prosecution is placing its reliance on the testimonies of the Nodal Officers i.e. Saurabh Aggarwal (PW13A), Vishal Gaurav (PW14) and Pawan Kumar (PW15). I may note that initially the Nodal Officer from Vodafone i.e. Sh.
Israr Babu (PW13) had by mistake brought the record of mobile No. 8877823767 instead of Mobile No. 8377823767 and proved the same which mistake was later detected and Sh. Saurabh Aggarwal (PW13A) was then examined in the Court with the record of mobile No. 8377823767 and the testimony of Israr Babu and record produced by him being irrelevant is liable to be ignored for purposes of our case.
(88) Sh. Saurabh Aggarwal (PW13A) Nodal Officer from Vodafone Mobile Services has proved that mobile No. 8377823767 was issued to Girish S/o Shankar Lal, R/o 13, Tilang Pur, Kotla Vihar, PhaseI & II, Delhi, vide Customer Application Form copy of which is Ex.PW13A/A and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 88 copy of Voter I Card in support of residence proof is ExPW13A/B. He has also proved the Call Details of the above mobile from the period 1.3.2013 to 30.3.2013 which are Ex.PW13A/C; Cell ID chart which is Ex.PW13A/D and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW13A/E. Sh. Vishal Gaurav (PW14), Nodal Officer from Bharti Airtel Ltd. has proved that mobile No. 9818553961 was to the accused Atul Sharma S/o Ram Swaroop, R/o H3/196, Block H, KS Nagar, Ranholla, Delhi vide Customer Application Form copy of which is Ex.PW14/A and copy of election ID card in support of residence proof which is Ex.PW14/B. He has proved the Call Details from the period 15.03.2013 to 30.03.2013 which are Ex.PW14/C (running into two pages); Cell ID Chart which is Ex.PW14/D; certificate U/s 65 B of Indian Evidence Act which is Ex.PW14/E. Further, Sh. Pawan Singh (PW15) Nodal Officer from Idea Cellular Ltd. has proved that the mobile No. 8726964524 was to Sovaran S/o Sh. Raja Ram (father of Ranjana) R/o 288, Rara da Hardoi, UP vide Customer Application Form copy of which is Ex.PW15/A and copy of Election ID card in support of residence proof which is Ex.PW15/B. He has also proved the Call Details from the period 15.03.2013 to 30.03.2013 which are Ex.PW15/C (running into six pages); Cell ID Chart which is Ex.PW15/D (running into 49 pages) and Certificate U/s 65 B of Indian Evidence Act which is Ex.PW15/E. (89) I have considered the above record proved by the Nodal Officers. I may observe that Girish Chand (PW18) the employer of the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 89 accused has confirmed that the he had given his ID to Ajay the brother of the accused Atul Sharma to obtain the Vodafone SIM in his name pursuant to which Ajay had obtained the mobile No. 8377823767 and was the user of the same and as per the case of the prosecution, Atul being the brother of Ajay frequently used this number to contact Ranjana on the SIM which was in the name of Sharvan Kumar and was actually used by Ranjana. (90) A careful analysis of the Call Detail Records of the above mobile phones establishes that Ranjana had been in close contact with the accused Atul Sharma on the mobile phone of which Ajay was the user but which accused Atul who is his real brother and was staying with him was also using. Initially she has explained it was only to contact Mukesh that she used to give a missed call on the mobile number 8377823767 and when Mukesh used to call her back and speak to her but the evidence on record speaks to the contrary. The deceased Mukesh had made a complaint to his father in law i.e. Sharvan Kumar (PW17) regarding Ranjana being repeatedly in contact with Atul which he did not appreciate and to which he had been objecting. In this background, there was no occasion for Ranjana to have made a telephonic contact with her deceased husband on the mobile phone being used by Atul with whom she was into a relationship earlier. In fact the perusal of the Call Detail Records of the mobile numbers i.e. 8377823767 (in the name of Girish Chand but being used to by the accused Atul) and 8726964524 (in the name of Sharvan Kumar the father of Ranjana but being actually used by Ranjana) establishes the frequent calls St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 90 between the two, which calls are reflected as under:
Sr. Calling No. Called No. Date Time Duration No. 1 8726964524 8377823767 1.3.2013 12:06:49 88 2 8377823767 8726964524 1.3.2013 13:54:07 220 3 8726964524 8377823767 4.3.2013 16:51:41 1 4 8726964524 8377823767 4.3.2013 17:13:29 29 5 8377823767 8726964524 4.3.2013 17:14:47 466 6 8377823767 8726964524 5.3.2013 18:31:10 30 7 8726964524 8377823767 11.3.2013 12:07:08 2 8 8726964524 8377823767 15.3.2013 21:19:42 32 9 8377823767 8726964524 16.3.2013 7:54:09 338 10 8377823767 8726964524 16.3.2013 9:13:18 179 11 8726964524 8377823767 21.3.2013 14:34:40 20 12 8377823767 8726964524 21.3.2013 14:35:40 331 13 8377823767 8726964524 24.3.2013 23:15:01 764 (91) The above Call Details Record confirms the testimony of
Ranjana (PW16) to the extent that she used to give missed call or calls of short duration on the mobile number used by Atul (as reflected from the call mentioned at serial no. 3 and 4 of the above table) after which there was a return call for a longer duration from the mobile phone of the accused. The electronic evidence lends independent confirmation to the testimony of Ranjana (PW16) and establishes the frequency and the regularity with which the accused Atul Sharma and Ranjana were contacting with each other at odd hours and for a long durations. The accused has not been able to controvert the above Call Detail Record. Ranjana in her oral testimony had alleged that on the date of the incident Atul had called her at night and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 91 first started making love talks with her and then told her that he had killed Mukesh and she should come to Delhi and they could now get married (Extra Judicial Confession). This conversation reflected from the Call Details Record confirming that at 11:15 PM the accused Atul made a call to Ranjana which was for 764 Seconds i.e. more than twelve and a half minutes and lends credence to her version and incriminates the accused Atul. (92) This being the background, I hereby hold that the above electronic record not only lends corroboration to the oral version and confirms that the motive of this Crime of Passion was to remove Mukesh from the way so that Ranjana and Atul could marry but in order to show that the crime had been committed by some other person, it was the accused Atul who himself took the deceased to the hospital. The Electronic Evidence also lends independent corroboration and confirmation to the testimony of Ranjana to the effect that there were frequent telephonic communications between them and even on the date of incident i.e. 24.3.2013 there was a telephonic conversation between her and Atul when he informed her that he had killed Mukesh and removed him from the way because he was objecting to his i.e. Atul's talking with Ranjana and now they could get married.
Last Seen Evidence/ Circumstantial Evidence:
(93) The case of the prosecution is that the accused Atul Sharma was having a love affair with Ranjana belonging to the same community and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 92 hence there was a talk of marriage alliance between him and Rajana and also between his brother Ajay and sister of Ranjana which could not materialize in view of the fact that before the marriage on one occasion when the parents of Ranjana were not at home, Atul had lured her and she had spent a night with him which information had travelled to the village and a question of honour was raised by the family of Ranjana resulting into a verbal altercation between both the families and the marriage was called off. Thereafter Ranjana was got married to Mukesh, an orphan, who had been brought up by his uncle but despite her marriage with Mukesh she continued to telephonically communicate with Atul Sharma. Mukesh had also come to Delhi to earn his livelihood in the same area where Atul Sharma was working and as per the material on record was working in the same factory. It is alleged that on the date of incident i.e. on 24.3.2013 the accused Atul was seen entering the room of the deceased Mukesh in the late night hours and it was thereafter that the body of Mukesh was taken to the hospital by Atul and his brothers Ajay and Ram Avtar who were working with him. In this regard the prosecution is placing its reliance on the testimonies of Ranjana (PW16), Sharvan Kumar (PW17) and one Raju (PW21) a rickshaw puller of the same area.
(94) However, before coming to the merits of the allegations involved, I may observe that the 'Last Seen' theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 93 possibility of any person other than the accused being the author of the crime becomes impossible. It is a settled law that even in such cases the courts should look for such corroboration. (Sanjay Vs. State of U.T. Chandigarh Criminal Appeal No. 1699/2005 decided by the Hon'ble Supreme Court on India on 5.5.2006).
(95) It is settled law that where there is no direct evidence against the accused and the prosecution rests its case on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be in compatible with the innocence of the accused or the guilt of other person. [Ref: Ved Prakash @ Bhagwan Dia Vs. State of Haryana reported in 2006 (3) RCR (Criminal) 992].
(96) Further, in the case of Mohibur Rahman Vs. State of Assam reported in AIR 2002 SC 3064 the Hon'ble Supreme Court has observed that : "....... The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. There may be cases where on account of close proximity of place and time between the event of the accused having been last seen with the deceased and the factum of death a rational mind may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own he liability for the homicide....."St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 94
(97) A similar view was taken by Supreme Court in the decision reported as Amit @ Ammu Vs. State of Maharashtra reported in AIR 2003 SC 3131. Further, in the decision reported as State of Rajasthan Vs. Kashi Ram reported in AIR 2007 SC 144 Hon'ble Supreme Court has observed as under: "....... It is not necessary to multiply with authorities.
The principle is well settled. The provisions of Section 106 of the Evidence Act itself are unambiguous and categoric in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. Thus, if a person is last seen with the deceased, he must offer an explanation as to how and when he parted company. He must furnish an explanation which appears to the Court to be probable and satisfactory. If he does so he must be held to have discharged his burden. If he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106 of the Evidence Act. In a case resting on circumstantial evidence if the accused fails to offer a reasonable explanation in discharge of the burden placed on him, that itself provides an additional link in the chain of circumstances proved against him. Section 106 does not shift the burden of proof in a criminal trial, which is always upon the prosecution. It lays down the rule that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. The principle has been St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 95 succinctly stated in Re. Naina Mohd. AIR 1960 Madras,
218. ..."
(98) Hon'ble Mr. Justice Pradeep Nandrajog in the case of Sharda Jain Vs. State in Crl. Appeal No. 51/2007 decided on 27.8.2009 has on the basis of the various judicial pronouncements of the Hon'ble Supreme Court, succinctly laid down the factors on which the effect of last seen on the guilt of accused depends, which are as under:
(i) Proximity between the time of last seen and time of death of the deceased.
(ii) Proximity between the place where the deceased was last seen with the deceased and place of murder of the deceased.
(iii) Nature of place of murder of the deceased.
(iv) Attending circumstances enwombing the time and place of last seen.
(v) Reasonableness of the explanation offered by the accused.
(99) Now applying the settled principles of law to the facts of the present case it is required to be seen whether the evidence of the prosecution witnesses to establish that the deceased was last seen alive in the company of the accused is trustworthy or not. If yes, the effect thereto. (100) Coming first to the testimony of Ranjana (PW16), it is evident from her examination in chief that initially she had come up with a version that she and the accused Atul Sharma were neighbours being residing in the same area and known to them and there were talks of matrimonial alliance St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 96 between her and the accused Atul Sharma and her sister with the brother of Atul Sharma which could not materialize on account of the fact that the family of Atul Sharma did not possess any movable or immovable property and her father felt insecure towards their future. She has claimed that even after her marriage with Mukesh she continued with her friendly relations with accused Atul and had even introduced her husband Mukesh to accused Atul. She has explained that thereafter her husband Mukesh had come to Delhi to earn his livelihood and started working in the same place where Atul was working. She has further explained that while husband Mukesh was in Delhi and whenever she wanted to contact him, she used to give a missed call on the mobile phone used by the accused Atul Sharma (which mobile number she has not disclosed in the court) and it was thereafter that Atul used to give a return call and then passed on the mobile phone to her husband Mukesh who used to then converse with her. She has further stated that on 24.03.2013 or 25.03.2013 at about 11.00PM she gave a missed call on the mobile phone of accused Atul and then received a call from him and when she asked him to get her to talk to Mukesh accused told her that he had cleared the way for her and killed Mukesh as he was objecting to his (Atul's) talking with her (.....Pehle to idharudhar ki pyar ki batein karta raha, phir thodi der baad kaha ki maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha....). According to her the accused accused also her that she and her sister Vandana should come to Delhi and they would get married. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 97 (101) However, I may observe that initially she had given a different version to the Court as regards her affair with the accused Atul but it was later only after her father Sharvan Kumar was examined and he confirmed about the love affair between Ranjana and Atul Sharma and also informed that after the marriage of Ranjana with Mukesh, she was in regular telephonic contact with Atul Sharma which was objected to by Mukesh; that she was again recalled for additional examination on the same day, that she confirmed the same. She also admits that her marriage with the accused Atul Sharma had been called off on account of the incident wherein she had gone and stayed overnight with Atul and that she was reluctant in marrying Mukesh which marriage was compelled on her. This neither she nor her father had disclosed to the Investigating Officer earlier. I reproduce the relevant portion of the additional examination of Ranjana (PW16) as under:
"........ My marriage has been fixed with Atul. I was having a love affair with Atul for about one year and wanted to marry him. One day when my parents and family were not at home, I had gone out with Atul and stayed with him over night and in the morning when my family came to know about it, they were very annoyed. We also went to the house of the accused Atul where there was an altercation between my family and the mama of Atul namely Ram Narain on account of which my marriage with Atul was called off. I did not want to marry anybody else and insisted to my parents that I wanted to marry Atul but they married me to Mukesh against my wishes. I was married to Mukesh in our native village. Before my marriage with Mukesh he and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 98 his uncle were told about my affair with Atul and how the marriage had broken with him but Mukesh did not object to the same. Even after my marriage Mukesh used to have suspicion on me and felt that I used to call Atul and was continuing my relation with him though I had no such link with Atul. (mere husband ko shak hota tha ki mein shadi ke bad Atul se milte thi aur Atul se phone par bhi baat karte thi par main koi baat nahi karte thi). When Mukesh last came to Delhi he was very happy and had come with one boy of the village but I do not know how he started working in the adjoining factory where Atul and Ajay were working.
On court question : Atul and Ajay did not take my husband from the village, he had come with one another boy of the village from the village and I had never seen Atul and Ajay taking my husband from the village. I did not inform all these facts, about whatever I have deposed today to the police. Vol. I was very scared at that time. On court question : Whatever I have stated to the court today is the correct version of whatever had transpired. Court Observation: During the examination by the court the witness has taken a complete U turn and a new version is emerged which is contrary and different to the prosecution version. The Addl. PP requests the further examination of the witness be deferred as he wants to seek instruction from the Investigating Officer and senior officers on the version which has now emerged......."
(102) Coming now to the testimony of Sharvan Kumar (PW17) who is in fact her adoptive father since Ranjana is not her daughter and is the daughter of his younger brother Muneshwar whom he had adopted. The St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 99 relevant portion of his testimony is as under:
"........I used to work as carpenter in my village. One Rajeshwari is the sister of Ram Narayan who is residing near our house. His three sons and two daughters were also living with him i.e. in their parental house. The eldest son of Rajeshwari is Atul, younger to him is Ajay and the youngest son is Chhotu. Accused Atul is present in the court today (correctly identified). Ram Narayan used to ask me to marry my daughter Ranjana and Vandana to accused Atul and Ajay. I asked him as to how I married my daughters with them as they were not having movable or immovable property. I asked Rajeshwari at that time that in case Ram Narayan at any time expelled her from his house, where she will go. Thereafter Ram Narayan threatened me. Later on Atul also joined him and asked me, "koi baat nahin, shaadi mat karo, koi time ayega to batayenge".
Thereafter I married my daughter Ranjana with one Mukesh who was a resident of Village Tikri, PS Sursa, Distt. Hardoi, UP about two years prior to the incident. After the marriage accused Atul made friendly relation with my Son in law Mukesh and my son in law also came to Delhi and started working with accused Atul.
In the month of March of this year I received a telephone call from PS Vijay Vihar and inquired me about the relation of me with Mukesh. Then I told that Mukesh is my son in law and thereafter the police official told me that Mukesh has been murdered. Thereafter I alongwith my relatives, parents of Mukesh came to Delhi and we were taken to the hospital where we identified the dead body of Mukesh. Thereafter Mukesh was cremated in Delhi......"
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 100 (103) This witness has been crossexamined by the Ld. Defence Counsel and I reproduce the relevant portion of the same as under:
"....... Ram Narayan had asked me to marry my daughters with Atul and Ajay in the Hindi month of "Magh" but I cannot tell about the English Month and year of the same.
I am known to the family of Atul and Ajay since last 4045 years. We are related to the family of Atul and Ajay by kinship and we belong to the same community. It is correct that Ranjana had told me that she known to Atul and she wanted to marry Atul and she was in love affair with Atul. (Haan, prem tha). Ranjana is not my natural daughter. Vol. She is daughter of my real younger brother namely Muneshwar and I have adopted her since her birth. After I came to know about love Affair of Ranjana and Atul, I discussed with my brother Muneshwar about the same.
Now at this stage the witness has voluntarily of his own stated - Initially the marriage between Ranjana and Atul had been fixed but one day when I and my family members were away to the fields, the accused Atul lured Ranjana away and kept her with him for the whole night and it was next day morning we came to know about the incident we even went to the uncle/Mama of Atul namely Ram Narayan and disclosed to him the entire incident on which Ram Narayan pleaded that no action be taken and next time no such act would be repeated. Therefore to save our honour in the society we broke the marriage between Atul and Ranjana and she was married to Mukesh.
Court Question: What was the problem due to which the marriage between Atul and Ranjana was broken? Ram St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 101 Narayan had already given an undertaking and both Atul and Ranjana were to be married?
Ans. Ram Narayan had done GaliGalauch with me and the accused and his brother told me that this incident would repeated.
On Court Question:
It was on account of my family honour i.e. izzat Maryada that we had to break the marriage between Atul and Ranjana. It is correct that even when the marriage between Ranjana and Mukesh was fixed and was solemnized, Ranjana refused to marry Mukesh insisting that she would marry Atul. It was after two months of the breaking the marriage between Ranjana and Atul that Ranjana was married to Mukesh in the village. Mukesh belongs to our community but was not related to us. I had disclosed the fact regarding the broken marriage between Ranjana and Atul to the uncle/ chacha of Mukesh. Vol. Mukesh was an orphan and was brought up by his chacha. This fact was also disclosed to Mukesh prior to the marriage and he had no objection to the same. Mukesh was not a very wealthy person and we had given him the gifts which are normally given in the marriage. Mukesh did not know Atul prior to his marriage with Ranjana. Vol. he came to know Atul only after the marriage. Mukesh had told me that even after marriage Ranjana continued to talk and communicate with Atul and he was objecting to the same. Mukesh also complained to me that Ranjana used to talk with Atul on his mobile phone. Mukesh sometimes used to come to Delhi and work here and then go back to his village but Ranajana remained at the village. It is correct that initially Mukesh was working somewhere else and it was only after the marriage that he was employed in the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 102 factory adjoining the one where Atul was working. Court Observation: During the examination by the court the witness has taken a complete U turn and a new version is emerged which is contrary and different to the prosecution version. The Addl. PP requests the further examination of the witness be deferred as he wants to seek instruction from the Investigating Officer and senior officers on the version which has now emerged....."
(104) I may observe that though Ranjana has by and large supported her earlier version but so fas as her past is concerned, she initially tried to conceal the same but later when her father Sharvan Kumar disclosed the same and she was reexamined on this aspect she admitted Firstly that she was known to the accused much prior to her marriage with Mukesh and was having a love affair with him and also wanted to marry him. Secondly she has also proved that she and Atul were to be married but due to the fact that on one occasion she went and spent a night with Atul which fact came to be known to her family and the question of family honour (Izzat) was raised in the village, there was a dispute between the families and her marriage was called off. Thirdly that even thereafter she did not want to marry any one but was married to Mukesh against her wishes. Fourthly that after her marriage with Mukesh, it was she who introduced Mukesh to Atul. Fifthly that even after her marriage, she used to make a missed call on the mobile phone number which Atul was using after which Atul used to call her back St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 103 and first he used to speak to her and then her husband. (105) Ranjana is a young girl who had a past and was trying to balance between her past and present being emotionally torn between the two. She has explained that all the above facts were not told by her to the Investigating Officer because soon after the incident she was extremely scared which appeared to be natural and probable. She has stressed that the version which she has now given to the Court is true and correct and I may observe that this not only finds confirmation from the testimony of her father Sharvan but also appears to be natural, probable and truthful. The manner in which Atul made a call to her at 11:15 PM i.e. after the incident and spoke to her almost more than twelve and a half minutes (i.e. 764 seconds as confirmed from the Electronic Record/ CDR) confirms the version given by Ranjana that the accused Atul had disclosed to her of having killed Mukesh and removed him from the way as he was objecting to his (Atul's) talking to her (Ranjana) (Pehle to idharudhar ki pyar ki batein karta raha, phir thodi der baad kaha ki maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha). This I may observe is in the nature of an Extra Judicial Confession made by the accused Atul Sharma. In this regard the Hon'ble Supreme Court has summarized the position in Kusuma Ankama Rao Vs. State of Andhra Pradesh, reported in AIR 2008 SC 2819 in the following words:
"....... Extrajudicial confessions are generally those that are made by a party to or before a private individual St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 104 which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (in short the Code) or a Magistrate so empowered but receiving the confession at a stage when Section 164 does not apply. As to extrajudicial confessions, two questions arise: (i) were they made voluntarily ? and (ii) are they true ? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him......"
(106) Although an extra judicial confession is per se admissible, yet the courts insist upon a cautionary approach while evaluating its probative value. Applying these settled principles of law to the facts of the present case the information given by the accused Atul to Ranjana at the first instance to the extent that "...... maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha....." are clearly in the nature of Extra Judicial Confession made by the accused Atul to Ranjana with whom he was in love, on mobile phone at 11:15 PM as confirmed by the Electronic Record which shows that it was made voluntarily and before St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 105 making this confession he had first started making love talks with her and it was later that he disclosed about what he had done and asked Ranjana to come to Delhi along with her sister Vandana so that he and his brother could marry them. It is evident that these words "...... maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha....." which have not been made by any inducement, threat or promise and are in the nature of Extra Judicial Confession and find due confirmation from the Electronic Record showing that this conversation between the accused Atul Sharma and Ranjana took place soon after the incident at 11:15 PM. This is material evidence being in the nature of Extra Judicial Confession of crime which he had made to Ranjana which not only confirms his state of mind at the time of incident i.e. his extreme obsession for Ranjana and his desire to marry her despite her marriage with Mukesh and the reason for the crime i.e. objection of Mukesh to Atul speaking to his wife Ranjana and is a strong pointer towards his guilt. (107) From the joint reading of the testimonies of Ranjana (PW16) and Sharvan Kumar (PW17) the following aspects emerge:
➢ That the accused Atul Sharma and Ranjana were known to each other being neighbours and were into a love affair and wanted to marry.
➢ That their families had decided to get them married as they were related by kinship and belonged to same village and a marriage alliance between Ranjana and Atul and the brother of Atul namely Ajay and sister of Ranjan was fixed.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 106
➢ That on one occasion before the marriage could take place, when the parents of Ranjana were not at home, Atul had lured her and she spent a night with him which fact not only came to be known to her family but also to the other villagers as a result of which there was a dispute between the families and the matrimonial alliance between Rajnana and Atul was called off.
➢ That thereafter the alliance of Ranjana was fixed with Mukesh an orphan who had been brought up by his uncles and Mukesh had been told about the first matrimonial alliance of Ranjana with Atul which did not materialize but Mukesh had not objected to the same.
➢ That even after the marriage Ranjana continued to communicate with Atul Kumar on his mobile which was not liked by Mukesh and to which he had even objected and informer her father Sharvan Kumar about the same.
➢ That Mukesh also came to Delhi and started working in the Ara/ Saw Factory (whether Mukesh came with Atul or with other boys has not been established).
➢ That Ranjana used to give a missed call on the mobile phone being used by Atul and finding an opportune time he used to call her back.
➢ That on 24.3.2013 at 11:15 PM when the accused made a call to her, he informed her that he had cleared the way by killing Mukesh who was objecting to their talking with each other and now she and sister Vandana should come to Delhi and they can get married (Pehle to St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 107 idharudhar ki pyar ki batein karta raha, phir thodi der baad kaha ki maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha). (Here, I may note that the electronic evidence on record confirms that the accused Atul had made a call to Ranjana at 11:15 PM which call lasted for a long time i.e. for 764 seconds thereby lending credence to the version of Ranjana and the Extra Judicial Confession made by the accused Atul to Ranjana).
(108) Coming now to the testimony of Raju (PW21) an independent witness who is a rickshaw puller and knew both the accused Atul Kumar and the deceased Mukesh. He has confirmed that Mukesh and Atul used to work on a Saw Mill (Ara Machine) belonging to one Lal Singh. He has specifically stated that at about 11:00 PM he had seen the accused Atul entering the room in which Mukesh was residing. He has however turned hostile on the aspect that he had seen the accused Atul coming out from the room of Mukesh having an Axe and a Chorsi in his hand but has struck to his version of having seen the accused Atul entering the room of Mukesh.
The relevant portion of his testimony is as under:
"...... I am a rickshaw puller by profession. On 24th of the day about six months back I had gone to Sunday Bazar at about 11.00PM and I was returning. I saw accused Atul while entering in the room in which Mukesh was residing. Accused Atul is present in the court today (correctly identified). Mukesh and Atul used to work on a saw mill (Ara Machine). The said Ara Machine is belongs to one St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 108 Lal Singh.
Thereafter I started making my food. Thereafter I went for sleep and on next day police officials came. Thereafter I came to know that the murder had taken place.
At this stage Ld. Addl. PP seeks permission to put leading question to the witness.
Heard. Permission is granted.
I had not seen accused Atul coming out from the room in which Mukesh and accused Atul were residing as tenant and Atul was having an "Axe and Chorsi" in his hands.
At this stage Ld. Addl. PP seeks permission to cross examine the witness as he is resiling from his earlier statement made to the police.
Heard. Permission is granted.
XXXXX by Ld. Addl. PP for the state.
My statement was recorded. Whatever I had told today, I had stated so before the IO.
It is wrong to suggest that on 24.03.2013 at about 10.30/11.00PM when I was going to Sanday Bazar I saw accused Atul coming out from the room in which Mukesh and Atul were living. Accused Atul was having an Axe and Chorsi. My statement Ex.PW21/PX1 was recorded. It is wrong to suggest that whatever I had deposed in my examination in chief is not told by me to the IO. It is further wrong to suggest that I intentionally concealing the facts of my statement Ex.PW21/PX1. It is wrong to suggest that I have been won over by the relatives of the accused person not to depose on the last seen. Vol. I had seen Mukesh and Atul together going towards their room.
XXXXXX by counsel Sh. Vinod Kumar Sharma for the accused.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 109
I had stated to the fact that I had seen Mukesh and Atul together going towards their room. Confronted with the statement Ex.PW21/PW1 where it is not so recorded......."
(109) The above testimony of Raju establishes that both Atul and Mukesh were working in the same factory in the Saw Mill (Ara Machine) and that on the date of incident i.e. on 24.3.2013 at about 11:00 PM Raju had seen the accused Atul entering the room of Mukesh. (110) Here, I may observe that the accused is the best person who could have offered an explanation as to when he parted the company of the deceased Mukesh without any difficulty and the onus under these circumstances would not shift upon the prosecution. Since the facts relating to the same being especially within the exclusive knowledge of the accused, the legislature engrafted a special rule in Section 106 of the Evidence Act to meet exceptional cases in which not only it would be impossible to disproportionately difficult for the prosecution to establish such facts which are specially and exceptionally within the exclusive knowledge of the accused and which he could prove without difficulty or inconvenience.
(111) When the above incriminating material was put to the accused Atul in his statement under Section 313 Cr.P.C. he has not been able to explain when he parted with the company of the deceased Mukesh. Rather, on the contrary he has only stated that on the date of incident he had seen St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 110 the deceased in an injured condition at the gate of his factory and he took him to the hospital with the assistance of his brothers Ram Avtar and Ajay who were also working in the same factory. Neither Ajay his real brother nor Ram Avtar have been brought and examined in the Court to confirm this version of the accused Atul. I am sure if this would have been so, they would supported him in this regard. I may further observe that the spot of the incident is the Saw Mill/ Factory and the photographs of the spot taken by the Crime Team confirm that large number of instruments used in the factory i.e. Saw Machine/ Axes, Cutters etc. were lying at the spot had got stained with blood on account of the fact that the blood was splashed all over the place. The fact that at 11:00 PM Raju (PW21) had seen the accused Atul entering the room in which Mukesh was residing when he passed through the area but does not talk about seen him coming out, shifts the onus upon the accused Atul as to when he come out. I am sure that in case Atul had seen Mukesh lying injured as he now claims before the Court he would have at least raised an alarm which Raju would have heard which is not the case. Further, the electronic evidence on record confirms that at 11:15 PM he made a call to Ranjana which call lasted for 764 Seconds thereby lending credence to the version of Ranjana that the accused had informed her that he had finished off i.e. killed Mukesh and now they could marry. The presence of Atul Sharma at the spot stands established from the fact that he does not deny the same and also because it was he who along with his brothers Ajay and Ram Avtar were the ones who had brought the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 111 deceased to the hospital. This subsequent conduct of the accused Atul Sharma is also relevant.
(112) As per the provisions of Section 8 of the Indian Evidence Act, 1872 Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceedings, in reference to such suit or proceedings, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. It is hardly said that there any action without a motive. Conduct of a person to proceedings in reference to any fact in issue or relevant fact is relevant. As per the provisions of Section 8 the conduct whether previous or subsequent an offence against whom is the subject of inquiry is relevant if the conduct influences or influenced by any fact in issue or a relevant fact as it throws light upon a person's motive, intention, goodfaith etc. Subsequent act of a person which is indicative of desire to avoid or stifle judicial inquiry into an offence of which the party doing the act is accused or suspected is relevant. The conduct of a person immediately after the offence is relevant under these circumstances and in the absence of any explanation for such act the presumption would be against such person.
(113) Applying the settled principles of law to the facts of the present case it is evident that being agitated by the opposition of Mukesh in the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 112 accused Atul talking to his (Mukesh's) wife Ranjana and in order to remove him from the way and to clear the way to marry Ranjana the accused Atul had killed Mukesh and therefter in order to remove all suspicion from him, he also accompanied his brothers Ajay and Ram Avtar to the hospital with Mukesh who had been declared dead by that time. It is writ large that at the time of the incident nobody else except the accused Atul Sharma was present who had entered the room of Mukesh when the Rickshaw Puller Raju saw him. Had Ajay or Ram Avtar been present with Atul, then Raju would have seen them and accordingly inform the Investigating Officer about the same which is not the case and perhaps it is only after the incident that the others came to the spot and immediately shifted Mukesh to the hospital when Atul also accompanied them. The history given by them to the doctor (as per Dr. Bhavna Jain) was that the deceased had fallen on the Saw Machine while working which is different to the version given by the accused in the Court that he saw the deceased lying injured in the factory. There is nothing on record to show that the factory was running at that time i.e. late night hours at 11:00 PM or that any work was going on and hence it shows that the version given by them to the doctors was wrong and even the Autopsy Surgeon has opined the injuries to be fresh and has ruled out the same being caused on account of fall on the Saw Machine. This conduct of the accused Atul Sharma is a suspect and this coupled with the statement of Raju who had seen him entering the room of Mukesh at 11:00 AM but not coming out of the same and thereafter the fact that it was Ajay and Ram St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 113 Avtar who brought the deceased to the hospital with Atul at 1:20 AM accompanying them confirms the role attributed to him. (114) Therefore, in the instant case there is a proximity between the last seen and the time of death of the deceased in as much as the witness Raju (PW21) who is an independent witness had seen the accused Atul Sharma entering the room of the deceased Mukesh on 24.3.2013 at 11:00 PM and the accused has failed to explain when he parted company with the deceased and where. Further, at 11:15 PM the accused Atul Sharma made a call to Ranjana and told her that he had killed Mukesh and now he would marry her. This being the background, I hereby hold that the fact that the Last Seen Evidence on record and the Subsequent Conduct of the accused Atul Sharma is highly determinative of his guilt. Motive of the Crime/ Intention:
(115) The present case relates to crime of passion and according to the prosecution the sole motive attributed to the accused is that he was into a love affair with Ranjana for number of years and even the marriage between Ranjana and accused Atul had been fixed but the relationship could not materialize due to family differences and Ranjana was got married to Mukesh (deceased). Even after the marriage Ranjana and Atul continued to communicate with each other and it is this love of Atul for Ranjana which led the accused Atul to commit the murder of Mukesh so that he could St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 114 marry her. In this regard the prosecution is placing its reliance on the testimonies of Ranjana (PW16) and her father Sharvan Kumar (PW17).
(116) However, before coming to the evidence on merits, I may observe that the Motive has to be gathered from the surrounding circumstances and such evidence should form one of the links to the chain of circumstantial evidence. The proof of motive would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(117) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 115
(118) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(119) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(120) Applying the settled principles of law to the facts of the present case, from the testimonies of both Ranjana (PW16) and Sharvan Kumar (PW17) it stands established beyond reasonable doubt that Ranjana was into a love affair and relationship with the accused Atul. They both belonged to the same community and were related by kinship and even the talks of their marriage alliance had taken place. It stands established from the testimonies of both Ranjana (PW16) and her father Sharvan Kumar (PW17) that the marriage between Ranjana and Atul had been fixed but for the fact St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 116 that before the marriage on one occasion when the parents of Ranjana were not at home, the accused Atul allegedly lured Ranjana who spent a night with him which fact came to be known to the family and the villagers and the honour of the family was at stake. As a consequence of this incident there was a verbal altercation between the family members of the accused Atul and family of Ranjana after which the marriage was called off. Sharvan Kumar (PW17) has also specifically admitted that thereafter Ranjana was forcibly got married to Mukesh despite her objections and unwillingness and hence even after her marriage with Mukesh she was in regular telephonic contact with Atul and had been speaking to him which was objected to by Mukesh who also informed her father Sharvan about the same. On her part initially Ranjana in her testimony before the Court had tried to skirt the issue and the explanation she offered was that she was in fact talking to her husband Mukesh on the telephone which was in possession of Atul but the testimony of Sharvan Kumar (PW17) puts all speculations to an end wherein he has confirmed that she was in fact communicating with Atul Sharma which fact came to be known to Mukesh who had even objected to the same and informed of it. The electronic records confirm these calls and also the last call between Ranjana and accused Atul in which Atul had confirmed to her of having killed Mukesh and asked her come to Delhi and marry him. It is this which confirms that the Motive of the Crime was to remove the deceased Mukesh from the way so that Atul could marry Ranjana with whom she was into a love affair and was to marry which incidentally could St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 117 not materialize. Further, in so far as the intention of the accused to cause death of Mukesh is concerned, the manner in which repeated blows were given on the body of the deceased with a heavy blunt object with sharp edges which blows could have been caused with an Axe or Chorsi as per the opinion of Autopsy Surgeon, thereby causing the fragmentation of liver into multiple pieces by lacerations, confirms the intent so attributed to the accused which was to cause the death of the deceased Mukesh.
Arrest of the accused, Disclosure Statement and Recovery:
(121) As per the prosecution case after the registration of the FIR during investigations on 27.3.2013 it was on the basis of a secret information that the accused Atul Sharma had been apprehended and interrogated.
During interrogation he disclosed having committed the murder of Mukesh and pursuant to his disclosure statement the accused Atul Sharma got recovered the weapons of offence i.e. Axe and Chorsi and also the clothes which he was wearing at the time of the incident. In this regard the prosecution is placing its reliance on the testimonies of HC Parmender Kumar (PW23), SI Ajay Kumar (PW24) and Inspector Sunil Kumar (PW25).
(122) Before analyzing the evidence on merits, it is necessary to observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 118 information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
(123) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(124) It further provides five illustrations as to what would constitute a fact which are as under:
i. That there are certain objects arranged in a certain order in a certain place, is a fact ii. That a man heard or saw something, is a fact. iii. That a man said certain words, is a fact. iv. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
v. That a man has a certain reputation, is a fact.
(125) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 119 discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and the statement that "I will show you the place where I have kept the articles".
(126) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65: AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 120 "....... Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not" which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered.
This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 121 of my house' leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(127) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the Indian Evidence Act. The words "where he had St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 122 hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence....."St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 123
(128) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evidence Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(129) In the said case the Hon'ble Supreme Court further went to explain that "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 124 led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept.
In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(130) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 125 police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (131) Applying the settled principles of law to the facts of the present case, from a joint reading of the testimonies of HC Parmender Kumar (PW23), SI Ajay Kumar (PW24) and Inspector Sunil Kumar (PW25) the following aspects established:
➢ That on 27.03.2013 Inspector Sunil Kumar, SI Ajay Kumar, HC Parmender and other staff left the Police Station at around 8:15 AM in search of the accused.
➢ That when they reached near Rithala Kanjhawala Road, a secret informer told Inspector Sunil Kumar that the accused namely Atul who was wanted in the present case had been seen going towards the Ara Machine Factory of Lal Singh.
➢ That thereafter the secret informer took the police party to the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School, the secret informer pointed out towards one person standing near Ara Machine as the accused wanted in the present case.
➢ That the police team then went near the said boy and on seeing them the said boy became apprehensive and tried to flee but they managed to catch him.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 126
➢ That the said boy was interrogated by during which he confirmed his name as Atul and also admitted his involvement in the murder of Mukesh.
➢ That personal search of the Atul was taken in which Rs 100/, two mobile phones, some visiting cards etc. were recovered.
➢ That the accused Atul was arrested vide memo Ex.PW23/A, his personal search memo was prepared which is Ex.PW23/B and his disclosure statement was recorded vide Ex.PW23/C. ➢ That pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags and it was lying in a polythene bag in an open condition and the accused disclosed that with this chorsi he had killed Mukesh.
➢ That the accused then took the police party to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades.
➢ That the khakha/ sketch of the chorsi was prepared vide Ex.PW23/D and it was duly measured, the total length of chorsi was 22 cm, blade was 12 cm and handle was 10 cm and its maximum width was 3 cm after which the Chorsi was seized vide memo Ex.PW23/E. ➢ That the handle of the Axe was also measured and found to be 93 cm and it was then seized vide memo Ex.PW23/F. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 127 ➢ That the accused then took the police team to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident.
➢ That the said clothes were then seized vide memo Ex.PW23/G and the two mobile phones were recovered from the possession of the accused were separately seized vide memo Ex.PW23/H. ➢ That the accused then took the police team to the spot of the incident and pointed out the place of occurrence after which the pointing out memo was prepared which is Ex.PW23/I. (132) It is evident from the aforesaid that at the time of the incident the police had gone to the spot and a large number of instruments including Axes, Chorsies, Cutters etc. were lying there but it was the accused Atul Sharma who had got recovered the blood stained Chorsi (Ex.P2) from a garbage dump near the Ara Machine which was lying between the various polythene bags and had led the police to the same and thereafter took the police party to one side and from the garbage dump got recovered an Axe (Ex.P1) which was having blood stains on the blade, after which both these articles were seized. It is writ large from the testimonies of all these witnesses that though these places are accessible to general public and open but they have explained that they are on the one side on the factory and are not visible to the general public and hence the recovery of Chorsi and Axe at the instance of the accused becomes relevant under the given St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 128 circumstances. The FSL Results Ex.PX1 confirms that Human Blood was detected on both these weapons. I may also observe that the place from where these articles had been recovered is at a distance from the place where the Ara Machine was installed and the actual place of incident. It is evident from the photographs placed on record that the other instruments were lying inside the factory at different places and those lying at the spot were blood stained but this Chorsi and Axe had been recovered from the garbage dump i.e. kuraghar one side side of the factory and were lying under the polythene covers and garbage and not within visibility.
(133) It was within the knowledge of the police that the death of the deceased Mukesh was caused by causing injuries with sharp objects but it was not within the knowledge of Investigating Agency as to what was the weapons of offence. What turns on the fact that accused Atul Sharma got recovered the weapons of offence i.e. Axe and Chorsi from near the garbage dump and the forensic evidence confirms the presence of Human Blood on the same which is only natural because accused Atul was also one of the boys who had shifted the deceased to the hospital. Further, the accused got recovered his clothes which he was wearing at the time of the incident and the forensic evidence on record confirms the presence of Human Blood on the same.
(134) In view of my aforesaid discussion I hereby hold that the disclosure made by the accused Atul Sharma leading to the recovery of weapons of offence and his blood stained clothes is incriminating qua the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 129 accused and the forensic report confirms the presence of blood on the same connect him to the crime.
Charges against the accused - Established:
(135) Ld. Defence Counsel has vehemently argued that the accused himself had taken the deceased hospital and had he been guilty of murder it would not have been so. This argument so raised does not convince me under the given circumstances. It is writ large that the accused Atul Sharma had been desperately wanting to get married to Ranjana and had been maintaining the regular contact with her. The deceased Mukesh was an orphan and was unemployed. The father of Ranjana had already discussed the previous affair of Ranjana with Atul, with Mukesh but Mukesh had no objection to the marriage, perhaps thinking that things were not so serious.
Mukesh too had come to Delhi to earn livelihood and being already known to Atul after being introduced to him by Ranjana the deceased came to Delhi and got an employment in the same area in the same factory. How Mukesh reached to the same factory could be either because Mukesh came with other boys of the village as claimed by Ranjana and finding himself comfortably placed with the other boys of his area, he secured an employment there and it is equally possible, as claimed by Sharvan, that the accused Atul had lured Mukesh to get an employment in the same area/ factory. The circumstances speak for themselves. Raju a rickshaw puller in the area has confirmed that Mukesh and Atul were working in the same St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 130 factory and has confirmed that he had seen Atul entering the room of Mukesh which the accused has not been able to successfully controvert. (136) This being the background, I hereby hold that the prosecution has been able to prove and establish the necessary intent and knowledge of the accused Atul Sharma (as contemplated under Section 299 Indian Penal Code) to commit the murder of Mukesh pursuant to which the accused committed the murder of deceased Mukesh and then caused the evidence of commission of murder i.e. Chorsi, Axe and his blood stained clothes to disappear with intent to screen himself from legal punishment, for which I hold the accused Atul Sharma guilty of the offence under Section 302 and 201 Indian Penal Code FINAL CONCLUSIONS:
(137) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty; St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 131
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(138) Applying the above principles of law to the present case it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. They have proved having gone to the spot of incident. The identity of the accused Atul Sharma has been established. On the basis of the testimonies of various prosecution witnesses the following aspects stand established:
➢ That the accused Atul Sharma and Ranjana were known to each other being neighbours and were into a love affair and wanted to marry.
➢ That their families had decided to get them married as they were related by kinship and belonged to same village and a marriage alliance between Ranjana and Atul and the brother of Atul namely Ajay and sister of Ranjan was fixed.
➢ That on one occasion before the marriage could take place, when the parents of Ranjana were not at home, Atul had lured her and she spent St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 132 a night with him which fact not only came to be known to her family but also to the other villagers as a result of which there was a dispute between the families and the matrimonial alliance between Rajnana and Atul was called off.
➢ That thereafter the alliance of Ranjana was fixed with Mukesh an orphan who had been brought up by his uncles and Mukesh had been told about the first matrimonial alliance of Ranjana with Atul which did not materialize but Mukesh had not objected to the same.
➢ That even after the marriage Ranjana continued to communicate with Atul Kumar on his mobile which was not liked by Mukesh and to which he had even objected and informer her father Sharvan Kumar about the same.
➢ That accused Atul Sharma was working in the Saw Mill/ Factory at Mange Ram Park Extension, Gadda, Ara Machine Plot, Vijay Vihar, Delhi.
➢ That Mukesh also came to Delhi and started working in the Ara/ Saw Factory (whether Mukesh came with Atul or with other boys has not been established).
➢ That Ranjana used to give a missed call on the mobile phone being used by Atul and finding an opportune time he used to call her back.
➢ That on 24.3.2013 at 11:15 PM when the accused made a call to her, he informed her that he had cleared the way by killing Mukesh who was objecting to their talking with each other and now she and sister St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 133 Vandana should come to Delhi and they can get married i.e. i.e. Pehle to idharudhar ki pyar ki batein karta raha, phir thodi der baad kaha ki maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha. (Here, I may note that the electronic evidence on record confirms that the accused Atul had made a call to Ranjana at 11:15 PM which call lasted for a long time i.e. for 764 seconds thereby lending credence to the version of Ranjana and the Extra Judicial Confession made by accused Atul to Ranjana).
➢ That on 25.03.2013 at about 1:20AM (midnight) Mukesh was brought to BSA Hospital by the accused Atul Sharma, his brother Ajay and Ram Avtar in an injured condition and after examination he was declared 'Brought Dead'.
➢ That pursuant to the information given by Duty Constable of BSA Hospital, SI Ajay reached the hospital and the present case was then registered.
➢ That on 27.03.2013 Inspector Sunil Kumar, SI Ajay Kumar, HC Parmender and other staff left the Police Station at around 8:15 AM in search of the accused.
➢ That when they reached near Rithala Kanjhawala Road, a secret informer told Inspector Sunil Kumar that the accused namely Atul wanted in the present case had been seen going towards the Ara Machine Factory of Lal Singh.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 134
➢ That thereafter the secret informer took the police party to the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School, the secret informer pointed out towards one person standing near Ara Machine as the accused wanted in the present case.
➢ That the police team then went near the said boy and on seeing them the said boy became apprehensive and tried to flee but they managed to catch him.
➢ That the said boy was interrogated by during which he confirmed his name as Atul and also admitted his involvement in the murder of Mukesh.
➢ That personal search of the Atul was taken in which Rs 100/, two mobile phones, some visiting cards etc. were recovered.
➢ That the accused Atul was arrested, his personal search memo was prepared and his disclosure statement was recorded.
➢ That pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags and it was lying in a polythene bag in an open condition and the accused disclosed that with this chorsi he had killed Mukesh.
➢ That the accused then took the police party to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 135
➢ That the khakha/ sketch of the chorsi was prepared and it was duly measured, the total length of chorsi was 22 cm, blade was 12 cm and handle was 10 cm and its maximum width was 3 cm after which the Chorsi was seized.
➢ That the handle of the Axe was also measured and found to be 93 cm and it was then seized.
➢ That the accused then took the police team to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident.
➢ That the said clothes were then seized and the two mobile phones were recovered from the possession of the accused were separately seized.
➢ That the accused then took the police team to the spot of the incident and pointed out the place of occurrence after which the pointing out memo was prepared.
(139) The Medical Evidence on record is compatible to the prosecution case that repeated stab injuries were caused to the deceased which injuries were sufficient to cause death in ordinary course of nature. It also demolishes the defence of the accused that the injuries were possible due to fall on the Ara / Saw Machine as the Autopsy Surgeon has ruled out the same. Even otherwise, the photographs of the spot of the incident show that the machine is installed at a lower level and even if a person falls on the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 136 same the nature of injuries would be different in terms of shape, size and place where injuries are present.
(140) The Forensic Evidence is also compatible to the prosecution case since it not only establishes the spot of incident but also it confirms the presence of Human Blood on the clothes of the accused Atul Sharma which he was wearing on the date of the incident (which is only natural because he also shifted the deceased to the hospital) and also on the weapons of offence i.e. Axe and Chorsi got recovered by him from near the garbage dump pursuant to his disclosure statement.
(141) The electronic evidence on record not only lends corroboration to the oral version and confirms that the Motive of this Crime of Passion was to remove Mukesh from the way so that Ranjana and Atul could marry.
The Electronic Evidence also lends independent corroboration and confirmation to the testimony of Ranjana to the effect that there were frequent telephonic communications between them and even on the date of incident i.e. 24.3.2013 there was a telephonic conversation between her and Atul at 11:15 PM for 764 seconds when he informed her that he had killed Mukesh and removed him from the way because he was objecting to his i.e. Atul's talking with Ranjana and now they could get married. (142) Further, in the instant case there is a proximity between the last seen and the time of death of the deceased in as much as the witness Raju who is an independent witness had seen the accused Atul Sharma entering the room of the deceased Mukesh on 24.3.2013 at 11:00 PM and the St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 137 accused has failed to explain when he parted company with the deceased and where. Further, at 11:15 PM the accused Atul Sharma made a call to Ranjana and told her that he had killed Mukesh and now he would marry her. The Last Seen Evidence on record and the Subsequent Conduct of the accused Atul Sharma is highly determinative of his guilt. (143) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(144) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 138 (145) This being the background, I hereby hold that the prosecution has been able to prove and establish the necessary intent and knowledge of the accused Atul Sharma (as contemplated under Section 299 Indian Penal Code) to commit the murder of Mukesh pursuant to which the accused committed the murder of deceased Mukesh and then caused the evidence of commission of murder i.e. Chorsi, Axe and his blood stained clothes to disappear with intent to screen himself from legal punishment, for which I hold the accused Atul Sharma guilty of the offence under Section 302 and 201 Indian Penal Code and accordingly convicted. (146) Be listed for arguments on sentence on 24.11.2014.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 22.11.2014 ASJII(NW)/ ROHINI
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 139
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST) ROHINI COURTS: DELHI Session Case No: 133/2013 Unique Case ID No.: 02404R0167062013 State Vs. Atul Sharma S/o Sh. Ram Swaroop Sharma R/o Mange Ram Park Extn., Lal Singh Ka Ara, Ghadda, Budh Vihar, PhaseII, Delhi Permanent Address:
Village Neer Bahar, PS Dehat Kotwali, Sitapur Road, District Hardoi, Uttar Pradesh (Convicted) FIR No.: 159/2013 Police Station: Vijay Vihar Under Section: 302 Indian Penal Code Date of Conviction: 22.11.2014 Arguments heard on: 24.11.2014 Date of Sentence: 24.11.2014 APPEARANCE:
Present: Sh. Shiv Kumar, Ld. Addl. Public Prosecutor for the State.
Convict Atul Sharma in Judicial Custody with Sh. Vinod Kumar Sharma Advocate/ Amicus Curie.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 140
ORDER ON SENTENCE:
As per the allegations on 24.3.2013 at about 11:15 PM at Mange Ram Park Extn., Gadda, Ara Machine Plot, Vijay Vihar the accused Atul Sharma committed the murder of Mukesh Sharma by giving blows with the Chorsi and Axe on his stomach and after having committed the murder he caused the evidence of commission of murder i.e. Chorsi, Axe and his blood stained clothes to disappear with intent to screen himself from legal punishment.
On the basis of the testimonies of the various prosecution witnesses particularly the wife of the deceased i.e. Ranjana, her father Sharvan Kumar and the witness of Last Seen namely Raju and also on the basis of the medical, forensic, electronic and other circumstantial evidence on record, this Court vide order dated 22.11.2014 held the accused Atul Sharma guilty of the offence under Section 302 and 201 Indian Penal Code.
Vide the above judgment this Court has observed that the prosecution has been able to successfully establish that the accused Atul Sharma and Ranjana were known to each other being neighbours and were into a love affair and wanted to marry; that their families had decided to get them married as they were related by kinship and belonged to same village and a marriage alliance between Ranjana and Atul and the brother of Atul namely Ajay and sister of Ranjan was fixed; that on one occasion before the marriage could take place, when the parents of Ranjana were not at home, Atul had lured her and she spent a night with him which fact not only came St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 141 to be known to her family but also to the other villagers as a result of which there was a dispute between the families and the matrimonial alliance between Rajnana and Atul was called off; that thereafter the alliance of Ranjana was fixed with Mukesh an orphan who had been brought up by his uncles and Mukesh had been told about the first matrimonial alliance of Ranjana with Atul which did not materialize but Mukesh had not objected to the same; that even after the marriage Ranjana continued to communicate with Atul Kumar on his mobile which was not liked by Mukesh and to which he had even objected and informer her father Sharvan Kumar about the same; that accused Atul Sharma was working in the Saw Mill/ Factory at Mange Ram Park Extension, Gadda, Ara Machine Plot, Vijay Vihar, Delhi;
that Mukesh also came to Delhi and started working in the Ara/ Saw Factory (whether Mukesh came with Atul or with other boys has not been established).
Further, the prosecution has also been able to establish that Ranjana used to give a missed call on the mobile phone being used by Atul and finding an opportune time he used to call her back; that on 24.3.2013 at 11:15 PM when the accused made a call to her, he informed her that he had cleared the way by killing Mukesh who was objecting to their talking with each other and now she and sister Vandana should come to Delhi and they can get married i.e. Pehle to idharudhar ki pyar ki batein karta raha, phir thodi der baad kaha ki maine rasta saaf kar diya hai, Mukesh ko maar diya hai jo tere se batein karne par aitraz karta tha. Accused told me that I and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 142 my sister Vandana should come to Delhi and we will perform marriage.
(The electronic evidence on record confirms that the accused Atul had made a call to Ranjana at 11:15 PM which call lasted for a long time i.e. for 764 seconds thereby lending credence to the version of Ranjana and the Extra Judicial Confession made by Atul to Ranjana).
It has also been established that on 25.03.2013 at about 1:20AM (midnight) Mukesh was brought to BSA Hospital by the accused Atul Sharma, his brother Ajay and Ram Avtar in an injured condition and after examination he was declared 'Brought Dead'; that pursuant to the information given by Duty Constable of BSA Hospital, SI Ajay reached the hospital and the present case was then registered; that on 27.03.2013 Inspector Sunil Kumar, SI Ajay Kumar, HC Parmender and other staff left the Police Station at around 8:15 AM in search of the accused; that when they reached near Rithala Kanjhawala Road, a secret informer told Inspector Sunil Kumar that the accused namely Atul who was wanted in the present case had been seen going towards the Ara Machine Factory of Lal Singh;
that thereafter the secret informer took the police party to the Ara Machine of Lal Singh installed at Mange Ram Park Extension and when they reached near Meera Public School, the secret informer pointed out towards one person standing near Ara Machine as the accused wanted in the present case; that the police team then went near the said boy and on seeing them the said boy became apprehensive and tried to flee but they managed to catch him; that the said boy was interrogated by during which he confirmed St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 143 his name as Atul and also admitted his involvement in the murder of Mukesh; that personal search of the Atul was taken in which Rs 100/, two mobile phones, some visiting cards etc. were recovered; that the accused Atul was arrested, his personal search memo was prepared and his disclosure statement was recorded; that pursuant to his disclosure the accused got recovered one chorsi from a garbage dump near the Ara Machine which was lying between the various polythene bags and it was lying in a polythene bag in an open condition and the accused disclosed that with this chorsi he had killed Mukesh; that the accused then took the police party to one side and from the kuradher/ garbage dump got recovered an Axe which appeared to be blood stained on the blades; that the khakha/ sketch of the chorsi was prepared and it was duly measured, the total length of chorsi was 22 cm, blade was 12 cm and handle was 10 cm and its maximum width was 3 cm after which the Chorsi was seized; that the handle of the Axe was also measured and found to be 93 cm and it was then seized; that the accused then took the police team to a nala near Braham Shakti Hospital from where he got recovered one shirt, one jeans pant which he claimed he was wearing on the date of the incident; that the said clothes were then seized and the two mobile phones were recovered from the possession of the accused were separately seized; that the accused then took the police team to the spot of the incident and pointed out the place of occurrence after which the pointing out memo was prepared.St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 144
Further, this Court has observed that the Medical Evidence on record is compatible to the prosecution case that repeated stab injuries were caused to the deceased which injuries were sufficient to cause death in ordinary course of nature. It also demolishes the defence of the accused that the injuries were possible due to fall on the Ara/ Saw Machine as the Autopsy Surgeon has ruled out the same. Even otherwise, the photographs of the spot of the incident show that the machine is installed at a lower level and even if a person falls on the same the nature of injuries would be different in terms of shape, size and place where injuries are present.
The Forensic Evidence is compatible to the prosecution case since it not only establishes the spot of incident but also it confirms the presence of Human Blood on the clothes of the accused Atul Sharma which he was wearing on the date of the incident (which is only natural because he also shifted the deceased to the hospital) and also on the weapons of offence i.e. Axe and Chorsi got recovered by him from near the garbage dump pursuant to his disclosure statement.
The electronic evidence on record not only lends corroboration to the oral versions and confirms that the motive of this Crime of Passion was to remove Mukesh from the way so that Ranjana and Atul could marry.
The Electronic Evidence also lends independent corroboration and confirmation to the testimony of Ranjana to the effect that there were frequent telephonic communications between them and even on the date of incident i.e. 24.3.2013 there was a telephonic conversation between her and St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 145 Atul when he informed her that he had killed Mukesh and removed him from the way becayse he was objecting to his i.e. Atul's talking with Ranjana and now they could get married.
Further, it has been held that in the instant case there is a proximity between the last seen and the time of death of the deceased in as much as the witness Raju who is an independent witness had seen the accused Atul Sharma entering the room of the deceased Mukesh on 24.3.2013 at 11:00 PM and the accused has failed to explain when he parted company with the deceased and where. Further, at 11:15 PM the accused Atul Sharma made a call to Ranjana and told her that he had killed Mukesh and now he would marry her. This Court has also observed that the Last Seen Evidence on record and the Subsequent Conduct of the accused Atul Sharma also highly determinative of his guilt.
This being the background, this Court has held that the prosecution has been able to prove and substantiate the allegations against the accused Atul Sharma of having committed the murder of Mukesh and then caused the evidence of commission of murder i.e. Chorsi, Axe and his blood stained clothes to disappear with intent to screen himself from legal punishment, for which the accused Atul Sharma has been held guilty of the offence under Section 302 and 201 Indian Penal Code.
Heard arguments on the point of sentence. The convict Atul Sharma is stated to be a young boy aged 24 years having a family comprising of aged widow mother, two brothers and two younger sisters. St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 146 He his totally illiterate and is a labour by profession.
The Ld. Amicus Curie submits that the convict Atul Sharma is a young boy having no previous criminal involvements and is a first time offender. He has also argued that the convict belongs to a poor family and is a helping hand to his family. He has prayed that a lenient view be taken against the convict.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts It is also argued that the convict has not been able to show any mitigating circumstances in his favour which could make out a case for imposition of sentence of imprisonment for life.
Ld. Addl. PP for the State has also prayed for compensation to the family of the victim and has placed his reliance in the case of Delhi Domestic Working Women's Forum Vs. Union of India and Ors. reported in (1995) 1 SCC 14 wherein it has been observed that:
"......... Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 147 Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation......"
On the other hand the Ld. Amicus Curiae appearing on behalf of the convict has argued that the convict is a very poor person so much so that he was not in a position to arrange for a counsel at his expenses and had been given legal assistance at state expenses and has prayed for a minimum compensation.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 148 which are required to be keep in mind before awarding a death sentence in any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality; or
(b) Where the murder involves exceptional depravity. The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 149 constitute a continuing threat to society;
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or
domination of another person; and
(g) That the condition of the accused showed that he
was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a particular caste, community, or locality is committed.
(c) When the murder of an innocent child, a helpless woman is committed.
It was also observed by the Hon'ble Court that at the same time St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 150 it must be kept in mind that the principle of there being a proportion between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.
Now I would like to draw a balance sheet of aggravating and mitigating factors. The only mitigating factor in the present case is that the convict Atul Sharma is a young boy and has no previous criminal record. The aggravating factors are that the deceased Mukesh himself was a young boy of 24 years and he had been killed only because the convict Atul Sharma wanted to clear the way of his marriage with Ranjana (the wife of Mukesh) with whom he was already having a love affair prior to her marriage with Mukesh. The extent of force used upon the deceased is St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 151 evident from the fact that the Liver was fragmented into multiple pieces by lacerations on the right lobe and in order to ensure that his crime does not come to light, he himself along with his brothers Ajay and Ram Avtar took Mukesh to the Hospital claiming that the deceased had fallen on the Saw Machine while working in the same, where he was declared Brought Dead.
This being the background, I hold that the present case cannot be put on the same pedestal as other ordinary murder case but at the same time it also does not fall within the category of Rarest of Rare Case or even Rare Case. I award the following punishment to the convict:
1. For the offence under Section 302 IPC the convict is sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.
1,00,000/ (Rs. One Lac). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of Six Months. The entire fine amount of Rs.1,00,000/ shall be given to the Brother/ Guardians of the deceased Mukesh as compensation under Section 357 Cr.P.C.
2. For the offence under Section 201 IPC the convict is sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.2,000/ (Rs. Two Thousand). In default of payment of fine the convict shall undergo Simple Imprisonment for a period of 15 days.
Both the sentences shall run concurrently.
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 152
Benefit of section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the Brother/ Guardians of the deceased Mukesh.
Matter be also referred to Delhi Legal Service Authority for further compensation to the Brother/ Guardians of the deceased under Victim Compensation Scheme.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to the convict free of costs and one of order on sentence be attached with his jail warrant.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 24.11.2014 ASJII(NW)/ ROHINI
St. Vs. Atul Sharma, FIR No. 159/2013, PS Vijay Vihar Page No. 153