Delhi District Court
Apex Court Held That In A Case Relating To ... vs . Vikki, U/S 394/392/397 Ipc, Ps ... on 28 March, 2023
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE (SOUTH-EAST)-03,
SAKET COURTS: DELHI
Case Registration No. 2018/2016
CNR No: DLSE01-000080-2011
FIR No. 241/2010
Police Station: Govind Puri
Under Section: 302/394/34/397 IPC and Section 25/27 Arms
Act.
STATE
VERSUS
VIKKI
S/o Hans Raj
R/o 299, Balmiki Mohalla,
Tuglakabad Village,
New Delhi.
Date of institution : 01.10.2010
Date of Reserving judgment : 14.02.2023
Date of Pronouncement : 28.03.2023
Decision : Convicted
For State : Sh. F. M. Ansari, Learned Addl. Public
Prosecutor.
For Defence: Sh. Kuldeep Singh, proxy counsel for
Sh. Jitender Tyagi, counsel for accused.
FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 1....of 49
JUDGMENT
1. Accused was committed for trial by court of Sh. Samar Vishal, Learned Metropolitan Magistrate-05, Saket Courts, New Delhi, charge sheet having been filed against accused for commission of offences U/sec 302/394/397/34 IPC.
2. On 01.10.2010, police report under Section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C) was put up before Ld. Metropolitan Magistrate with a view to put accused for trial.
3. After compliance of provisions of Section 207 Cr. P. C, Ld. MM committed case to court of Sessions.
4. Charge U/sec 302/394/397/34 IPC and Section 25/27 Arms Act was framed against accused 09.09.2011 on the facts that on 04.07.2010 in evening at Jungle Tughlakabad in front of Indira Kalyan Vihar, New Delhi within jurisdiction of PS Govind Puri accused alongwith JCL R, S and Y in furtherance of their common intention committed murder of Sunil Kumar intentionally / knowingly causing his death by stabbing him with knife and committed robbery of his purse containing Rs. 1,500/-, laminated I card of Election Commission of India of deceased and one diary belonging to deceased after causing injuries to deceased with deadly weapon i.e. knife and on 07.07.2010 at about 5:30 p.m., accused was found in possession of a knife in contradiction of DAD Notification which accused FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 2....of 49 used while committing offence on 04.07.2010.
5. Brief facts on the basis of which charge-sheet in the matter was filed are as follows:-
6. That on 05.07.2010, SI Sahi Ram was assigned DD No. 69B for carrying out appropriate proceedings. SI Sahi Ram got lodged FIR after making endorsement on DD No. 69B and investigation after registration of FIR was assigned to SHO Inspector Veer Singh.
7. As per DD No. 69B at 7:45 a.m. J-63 Operator came to DO room and informed that a male dead body is lying in jungle at a distance of about 200 meters from red light near drain, Okhla Phase-I. The said information was recorded vide DD No. 69B and was sent to SI Sahi Ram for taking appropriate proceedings through Ct. Jagjeevan.
8. SI Sahi Ram on receipt of DD No. 69B went to footpath going to Tuglakabad Village in jungle near Tuglakabad fort alongwith Ct. Jagjeevan where he saw one person lying dead in upside down position. On inspection of the dead body, stab injuries were found below left eye, piercing left ear, on head above left ear, on backside of the head and on upper lips. Deceased was wearing one yellow colour T-shirt having "7" stitched upon it, white baniyan, blue pant and blue underwear of TT Jazz. Deceased was wearing wrist watch of Richo in his left hand, black belt and one ring in ring finger of right hand FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 3....of 49 whereupon "Sunil" was engraved. On his right hand side arm, name Sunil Kumar and name of Seema Devi with cross was tattooed. Blue colour chappals were lying at distance of 98 feet and 113 feet from dead body on footpath towards Indira Kalyan Vihar. Dead body was kept on the spot for identification. From facts and circumstances of the case, site inspection and from injuries inflicted on dead body of deceased, prima facie offence u/s 302 IPC appears to have been committed against deceased and hence, tehrir was sent in the PS through Ct. Jagjeevan and investigation was assigned to Inspector Veer Singh after registration of FIR who reached at the spot alongwith SI Ashok Giri, HC Jagat Singh and HC Dharam Pal. Visit of Crime Team and photographer on the spot was sought.
9. During investigation, spot was got inspected through Crime Team and photographs were got clicked through Photographer. Site plan was prepared after inspection of the spot and exhibits from spot were lifted. Dead body was got identified and thereafter postmortem of the same was got conducted. After conduction of postmortem, dead body was handed over to legal heirs.
10. On 07.07.2010, SI Hans Raj arrested accused Vikki and apprehended JCL Y, R and S in FIR No. 244/2010 u/s 392/394/34 IPC PS Govind Puri. Knife used in commission of offence in question and purse of deceased were recovered at FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 4....of 49 instance of accused Vikki. Purse of deceased was correctly identified in judicial TIP by brother of deceased namely Manu Das. Accused Vikki attacked deceased with knife and took out purse of deceased alongwith Rs. 1500/- in cash. JCL S hit stone on head of deceased and wore chappals of deceased. JCL R attacked deceased Sunil by piece of scissor over his head. JCL Y hit deceased on his head with cricket bat. From possession of JCL S, chappals of deceased were recovered which were identified correctly by brother of deceased namely Manu Das in judicial TIP. JCL R got recovered piece of scissor used in commission of offence and JCL Y got recovered cricket bat used in commission of offence. Exhibits were got deposited for opinion in FSL, Rohini and that on receipt of reports, supplementary charge-sheet before Court shall be filed. During investigation, statements of witnesses u/s 161 Cr.P.C. were recorded.
11. After completion of investigation, charge sheet was filed before court.
12. In support of its case, prosecution examined 23 witnesses in total.
13. PW-1 Ct. Dinesh deposed that on 05.07.2010, he was posted as constable/photographer in Mobile Crime Team, South District. On that day, he alongwith I/C Mobile Crime Team SI Jitender Kumar reached at the spot in front of Indira Kalyan FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 5....of 49 Kendra, Tuglakabad Jungle, where at the instance of IO, he took 9 photographs from different angles. He exhibited 9 photographs on record vide Ex.PW1/A1 to Ex.PW1/A9 and their negatives vide Ex.PW1/B (colly).
14. PW-2 HC Dharam Pal Singh deposed that on 07.07.2010, he was present in Trauma Center, AIIMS. Thereafter, IO Inspector Veer Singh, SHO PS Govindpuri prepared documents of deceased Sunil Kumar and produced before doctor concerned with request for conducting postmortem of deceased. After postmortem, doctor had handed over two sealed parcels duly sealed with seal of hospital AIIMS alongwith one sample seal. One of the parcel was related with the clothes of deceased and another was blood sample of deceased. He produced both the parcels with sample seal before IO. IO took into possession said exhibits through seizure memo Ex.PW-2/A. SI Bhanu Prakash also signed said memo as a witness. After postmortem, dead body of deceased was handed over to his relative by IO. He signed dead body delivery memo Ex.PW-2/B as witness. Thereafter, IO recorded his statement in this regard.
15. PW-3 Anil Das deposed that on 07.07.2010, he was working as farmer in Bihar and on that day, he reached Trauma Centre, AIIMS where he identified dead body of his young brother namely Sunil Kumar in the mortuary. IO recorded his FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 6....of 49 statement vide Ex.PW3/A qua identification of dead body.
16. PW-4 SI Sahi Ram deposed that he was on emergency duty in the intervening night of 04-05.07.2010 from 8 p.m. to 8 a.m. After receiving DD No. 69-B at about 7:45 a.m., he alongwith Ct. Jagjivan reached at Tuglakabad jungle in front of Indira Kalyan Vihar where he found dead body of a young boy which was lying in over turn condition. Head of dead body was towards southern side and legs were towards northern side. On inspection of the body, he found stab injuries on the body i.e. one was below the left eye and second on the left ear after cutting the same, third was above left ear towards head and fourth one at back side of head and also on upper lips. Dead body was wearing yellow colour T-Shirt having 7 stitched sticker and also wearing white colour baniyan, blue pant and blue underwear having TT Jazz sticker on it. Dead body was also having a RICHO Wrist watch on the left wrist having black dial. One ring was also worn in the ring finger of the right hand. 'Sunil' was engraved on the ring and 'Sunil Kumar' in Hindi was written on the right hand and also written 'Seema Devi' and also was cut as Tattoo Mark. Blue colour sleepers were also lying at a distance of 98 feet and 113 feet respectively from the body. On apparently seeing dead body, he observed that case was made out u/s 302 IPC. He also called SHO PS Govind Puri at spot. Crime Team was also called by him through present DD FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 7....of 49 and he endorsed the same vide Ex.PW-4/A. Rukka was sent to PS through Ct. Jagjeevan Ram. SHO started investigation in the present case and both the sleepers were seized by the IO and taken into possession vide seizure memo Ex.PW-4/B. IO also collected earth control, kept it in a glass bottle and prepared a pullanda in a white cloth, sealed with seal of SR and taken into possession vide seizure memo Ex.PW-4/C. IO also seized blood stained soil, kept in glass bottle, prepared a pullanda in a white cloth, sealed with seal of SR and took into possession vide seizure memo Ex.PW-4/D. IO also seized the wrist watch, ring, belt and Rs.28/- which were recovered during search of deceased and prepared personal search memo of the deceased and took into possession through Ex.PW-4/E. Crime Team also came at the spot and the spot was photographed by Crime Team at instructions of IO. Seal after use was handed over to him. Thereafter, IO recorded his statement in this regard. He correctly identified case property i.e. one pair of sleepers (chappal)-duly sealed with seal of GS having blue strip which were seized before him vide Ex.P-1 (collectively). He also identified case property i.e. one wrist watch make Ricoh and Rs. 28 (1 note of Rs. 20 denomination, 1 coin of Rs. 5, 1 coin of Rs. 2 and 1 coin of Rs. 1) and one ring yellow colour whereupon Sunil is engraved, which were recovered from body of deceased during investigation vide Ex. P2 (colly).
FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 8....of 49
17. PW-5 Manu Das deposed that on 07.07.2010, he was residing at jhuggi No. A-320, Indira Kalyan Vihar, Okhla, Phase-I, New Delhi as a tenant and working as a tailor at B-61, Okhla, Phase-I, New Delhi. He deposed that he was informed by police officials regarding death of his cousin namely Sunil Kumar, so, he alongwith his another cousin Anil Kumar Das reached at AIIMS Trauma Centre, where he and his cousin Anil identified dead body of Sunil vide memo Ex.PW-5/A. After postmortem, his cousin brother Anil received dead body of Sunil for last rites. He deposed that IO recorded his statement in this regard.
18. PW-6 HC Jagat Singh deposed that on 07.07.2010, he joined investigation with IO Inspector Veer Singh. JCL S was already arrested by the IO. Thereafter, JCL S was kept in his custody. Thereafter, JCL S took them at the place of incident i.e. in front of Indira Kalyan Vihar in the forest of Tuglakabad, where JCL S pointed out place of incident. IO prepared pointing out memo in this regard vide Mark-A. Thereafter, JCL S disclosed the fact that after committing murder with help of other associates, he had thrown his slippers in the jungle and he himself had worn slippers of deceased, so, IO seized said slippers in a cloth and sealed the same with seal of SR and took into possession through seizure memo vide Mark B. At that time, SI Bhanu Prakash also accompanied them. IO recorded FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 9....of 49 his statement in this regard. On 27.07.2010, he once again joined investigation with IO. At instructions of IO, he collected 11 sealed parcels alongwith sample seal from MHC(M) HC Manoj and went to FSL, Rohini for depositing the same. After depositing articles at Rohini, he obtained receipts and returned back to PS and handed over to MHC(M). He deposed that till case property remained in his possession, same was not tampered with in any manner. IO recorded his statement in this regard.
19. PW-7 HC Jagjeevan deposed that on 05.07.2010, he joined investigation with IO SI Sahiram. On that day at about 8 a.m., duty officer handed over DD No. 69B for handing over to SI Sahiram. He handed over same to SI Sahiram, whereupon he alongwith SI Sahiram reached at the spot i.e. in front of Indira Kalyan Vihar in forest of Tuglakabad, where dead body of an unknown person aged about 22 years was lying. He noticed some injury marks on face and head. Deceased was wearing yellow colour shirt, blue colour pant and blue colour slippers were also lying near some distance of body. In the meantime, SHO also came at the spot alongwith staff. Thereafter, SI Sahiram prepared tehrir, handed over to him, sent to PS for registration of case. After registration of case, he obtained copy of FIR and original tehrir, returned back at spot and handed over same to SI Sahiram. At that time, Crime Team was also FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 10....of 49 present and they inspected the spot. SI Sahiram prepared site plan and lifted some blood stained soil and kept in a glass bottle & prepared pulanda in a cloth and sealed the same with the seal of SR and took into possession through seizure memo vide Ex.PW-4/D. Thereafter, IO also lifted earth control, kept in a glass bottle & prepared pulanda in a cloth and sealed same with seal of SR and took into possession through seizure memo vide Ex.PW-4/C. IO also seized wrist watch, ring, belt & cash of Rs. 28/- of deceased and took into possession through seizure memo vide Ex.PW-4/E. 'Sunil' was engraved on ring. Belt was of black colour rexine and make of wrist watch was Rico. IO also seized said blue colour slippers and took into possession through seizure memo vide Ex.PW-4/B. IO recorded his statement in this regard. He identified case property i.e. blue colour slippers vide Ex.P-1 (colly). He also identified case property i.e. rexine black colour belt, wrist watch make Rico, one ring on which 'Sunil' is engraved and Rs. 28/- in cash vide Ex.P-2 (colly).
20. PW-8 Ct. Anil deposed that on 07.07.2010, he had joined investigation with IO Inspector Bir Singh. During investigation, accused was arrested by IO in present FIR in his presence vide arrest memo Ex.PW-8/A and his custody was handed over to him. Accused was correctly identified by him before court. Thereafter, accused was interrogated by IO and IO also FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 11....of 49 collected disclosure statement of accused in other case FIR No. 244/10 PS Govind Puri. Other three juveniles namely Y, S and R were already arrested by Juvenile Officer. Thereafter, in pursuance of disclosure statement of accused, accused led them at spot in front of Indira Kalyan Vihar, Okhla-I, Tugalakabad jungle, where IO prepared pointing out memo in this regard vide Ex.PW-8/B. Thereafter, accused led them near wall of fort in Tugalakabad jungle from where accused produced a knife which was kept in a polythene from bushes before IO. IO prepared sketch of said knife vide Ex.PW-8/C. After measuring same, IO prepared pullanda in a cloth and sealed same with seal of SR and took into possession vide Ex.PW-8/D. Thereafter, accused searched a purse in bushes and then produced before IO. On opening purse, one election I card, one photo of Sunil was found kept in a diary. Then IO seized said purse with above said articles in a cloth, prepared pulanda and sealed same with seal of SR and took into possession vide memo Ex.PW-8/E. Accused disclosed the fact that at time of crime, he was wearing same clothes which he wore at that time. Accused removed his white T shirt and green colour pant and produced before IO. IO prepared pulanda of said clothes in a cloth and sealed same with seal of SR and took into possession vide memo Ex.PW-8/F. During proceeding, SI Bhanu Prakash and other police officials also accompanied them. SI Bhanu Prakash also signed as a FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 12....of 49 witness in all memos. Thereafter, they returned back to PS. Accused was sent into lock up after medical. IO recorded his statement in this regard. Accused was correctly identified by him. He correctly identified knife produced by MHC(M) which was recovered from accused during investigation vide Ex.P3. He correctly identified case property produced by MHC(M) i.e. white T-shirt having cut marks on it and one green colour pant having cut mark on it which were recovered from accused during investigation vide Ex.P4 (colly). He correctly identified case property produced by MHC (M) i.e. one purse, one diary and photograph of Sunil on election I-card which were got recovered by accused during investigation vide Ex.P5 (colly).
21. PW-9 HC Jaiveer Rathi deposed that on 07.07.2010, he joined investigation with IO SI Hansraj. He deposed that accused was arrested by IO in case FIR No. 244/10 u/s 392/394/34 IPC. Thereafter, accused was interrogated by IO and disclosure statement of accused was recorded vide Ex.PW-9/A. Thereafter, IO recorded his statement on 18.09.2010. He correctly identified accused before Court.
22. PW-10 SI Bhanu Prakash deposed that on 07.07.2010, he joined investigation with IO Inspector Veer Singh. He alongwith IO reached AIIMS Trauma Center for conducting postmortem of deceased Sunil Kumar. After postmortem, HC Dharam Pal handed over two sealed parcels duly sealed with FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 13....of 49 seal of hospital and one sample seal to the IO. IO took into possession the said parcels vide Ex.PW-2/A. Thereafter, he alongwith IO returned back to PS. In PS Govind Puri, SI Hansraj produced accused and three delinquent juveniles S, R and Y. Thereafter, accused was arrested by IO in present case vide Ex.PW-8/A. Thereafter, other delinquent juveniles were apprehended by juvenile officers. At the time of production of accused before IO by SI Hansraj with other three delinquent juveniles, SI Hansraj also handed over carbon copy of disclosure statement of accused to IO. Thereafter, in pursuance of disclosure statement of accused, accused led them to Tughlakabad jungle opposite Indira Vikas Kalyan Kendra Okhla Phase-I in a police gypsy and other three delinquent juveniles were taken into a car with juvenile officers. Thereafter, accused pointed out place of incident to IO. IO prepared pointing out memo in this regard vide Ex.PW-8/B. Thereafter, delinquent juveniles also pointed out the place. Thereafter, accused led them to wall of fort from where accused produced a white colour bag taken from bushes before IO. After opening the polythene bag, one knife was produced before IO and it was disclosed that it was the same knife which was used for committing murder in the evening of 04.07.2010. IO prepared sketch of said knife vide Ex.PW-8/C and then after measuring the same prepared pullanda in a cloth and sealed the same with FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 14....of 49 seal of SR and took into possession vide seizure memo Ex.PW- 8/D. Blade of said knife was made of steel and the handle was made of aluminum type of metal and some artistic design was engraved on the handle. Thereafter accused led them some distance from the previous place and accused produced a black purse out of the bushes before the IO. IO opened said purse and found photocopy of one election ID of deceased Sunil Kumar and one small diary. At that time, accused disclosed that accused had already spent Rs.1,500 which were there in the purse. IO kept said election ID and diary in said purse and prepared a pullandah in a cloth and sealed the same with seal of SR and took it into possession vide seizure memo vide Ex.PW- 8/E. Accused also disclosed the fact that he was wearing same cloths at the time of commission of offence which accused was wearing at that time. Accordingly, cloths of accused i.e. white T- Shirt and cream coloured pant were taken into possession kept in a parcel and sealed with seal of SR and seized vide seizure memo Ex.PW-8/F. Some articles namely one part of scissor, one cricket bat and one pair of slippers of deceased were got recovered by the delinquent juveniles, IO conducted the proceedings in presence of juvenile officer. Thereafter, they all returned back to PS alongwith accused and three delinquent juveniles and case property. Case property was deposited in malkhana by the IO and accused was sent to lockup and FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 15....of 49 delinquent juveniles were taken by Juvenile Officer for proper action. IO recorded his statement in this regard. He correctly identified accused before Court. He identified case property produced by MHC(M) i.e. knife vide Ex.P-3, T-shirt having cut mark on it and one cream colour pant having cut mark on it which were recovered from accused vide Ex.P-4(colly), one black purse, one small diary and photocopy (laminated) election ID with photograph of deceased Sunil which were got recovered by accused during investigation vide Ex.P-5 (colly).
23. PW-11 SI Hans Raj deposed that on 07.07.2010, he arrested accused in case FIR No. 244/10 u/s 392/394/397/34 IPC, PS Govind Puri. He also arrested JCL S and R. Thereafter, he interrogated accused and JCL. In fact accused was arrested by him in Tuglakabad jungle and JCL S and R were apprehended by juvenile officer in TKD jungle. Thereafter, accused, JCL S & R were brought to PS Govind Puri alongwith JCL Y. Thereafter, he recorded disclosure statement of accused vide Ex.PW-9/A in case FIR No. 244/10. During interrogation, accused disclosed that he alongwith JCL S, R & Y committed murder of a person for purpose of robbery at Tuglakabad jungle near Indira Kalyan Vihar and accused also disclosed that he took out a purse of said person and after taking out cash of Rs. 1500/- from said purse, accused had thrown purse in TKD jungle itself. He had handed over disclosure statement to IO of FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 16....of 49 case FIR No. 241/10. Disclosure statement of JCL which was recorded by Juvenile Officer was also handed over to IO of present case. Thereafter, IO recorded his statement in this regard. He correctly identified accused before Court.
24. PW-12 SI Mahesh Kumar, Draughtsman deposed that on 21.08.2010 he was called by IO Inspector Bir Singh. He reached PS Govind Puri from where he alongwith IO reached at the spot i.e. in front of Indira Kalyan Vihar, Tuglakabad Jungle, where at the instance of IO, he collected rough notes and measurement from the spot. Thereafter, they both returned back at PS and he reached at his office. Thereafter on the basis of those measurement and rough notes, he prepared scaled site plan vide Ex.PW-12/A. After preparing scaled site plan, rough notes were destroyed and scaled site plan was handed over to IO. IO recorded his statement in this regard.
25. PW-13 Dr. R.P. Singh deposed that on 07.07.2010, he conducted postmortem on dead body of Sunil Kumar son of Dev Saran and prepared his report No. TC-535/10 vide Ex.PW13/A. Cause of death in that case as opined by him was shock due to Cranio Cerebral injuries produced by sharp and moderately heavy object. He also gave subsequent opinion No. 231 vide Ex.PW-13/B. He also prepared sketches of weapon of offence vide Ex.PW-13/C to Ex.PW-13/E. He also sealed clothes and blood in gauze of deceased and handed over same FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 17....of 49 to IO.
26. PW-14 Inspector Jitender Kumar deposed that on 05.07.2010, he was posted in Crime Team, South District as Incharge. On that day, upon receiving wireless message, he alongwith his staff including photographer and proficient reached the spot at Indira Kalyan Camp, Tughlakabad. They went towards jungle alongwith footpath and saw dead body lying there. He inspected dead body and got same photographed. He prepared his report vide Ex.PW-14/A. On the spot, he met Insp. Vir Singh and other police officials.
27. PW-15 Roshan Lal deposed that he was posted as Assistant Ahlmad in Juvenile Justice Board-II, Delhi Gate, New Delhi and he brought summoned record, which is reconstructed case file of FIR No. 244/2010, PS Govind Puri as original file got destroyed in fire. Carbon copy disclosure statement of accused is already Ex.PW9/A. Version of JCL R and S are Ex.PW15/A and Ex.PW15/B respectively. Copies of arrest memo and personal search memo of accused in FIR No. 244/10 are Ex.PW15/C and Ex.PW15/D respectively.
28. PW-16 Dr. Imran Ali deposed that on 05.07.2010, he was posted as JR at AIIMS Trauma Centre. On that day, he examined one unknown male patient brought by police. By time the patient was brought, he had already passed away. He noticed multiple stab wounds on face of patient. He prepared FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 18....of 49 his MLC vide Ex.PW-16/A, which was prepared on computer with his digital identity number in portion circled X.
29. PW-17 SI Ashok Giri deposed that on 07.07.2010, he was deputed to look after matters pertaining to juvenile in conflict with law. On said day, 3 JCLs namely Y, S and R were produced before him. He signed their apprehension memos and their version. JCL divulged in their version that accused caused injury to deceased with knife at jungle Tuglakabad fort opposite Indira Kalyan Vihar.
30. PW-18 Inspector/ACP Veer Singh deposed that on 05.07.2010, he was posted as SHO at PS Govind Puri. On that day at about 07:45AM, a call was received in police station that a dead body lying in jungle in front of Indra Kalyan Vihar near Tuglakabad. Said call was marked to SI Sahi Ram for investigation. SI Sahi Ram along with staff reached at aforesaid place and from said place, he informed him that deceased was having stabbing marks. Thereafter, he along with his staff reached at the spot. He inspected the body of deceased (male aged about 21-22 years). He noticed injury marks on the back side of the head, near left ear and left eye-brow. He also called Crime Team and photographer. The crime team inspected deceased and photographer clicked photographs of scene of occurrence. Deceased was wearing one ring mentioning name of Sunil and he was also having a tattoo mark on his hand with FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 19....of 49 same name in Hindi. Efforts were made to get identify deceased but no clue came forward. Thereafter, on basis of DD No. 69B Mark PW18/A, rukka was prepared by SI Sahi Ram and same was handed over to Ct. Jagjiwan Ram for registration of FIR at police station. Thereafter, he lifted exhibits from spot i.e. one pair of slippers of blue colour, earth-control, blood stained earth-control vide seizure memo already Ex. PW4/B, Ex.PW4/C & Ex. PW4/D. Wrist watch, ring and belt which deceased was wearing were seized vide seizure memo already Ex. PW4/E. Thereafter, he prepared site plan of place of occurrence vide Ex. PW18/B. Dead body was sent to mortuary AIIMS Hospital.
31. PW-18 ACP Veer Singh further deposed that on 07.07.2010, he alongwith SI Bhanu Prakash reached at AIIMS Trauma Centre and went to mortuary for conducting post- mortem of deceased Sunil Kumar. Doctor had conducted post- mortem of deceased and after post-mortem, HC Dharampal handed over two sealed parcels duly sealed with the seal of Hospital and one sample seal to him which were handed over to HC Dharampal by doctor. He took into possession exhibits vide seizure memo already Ex.PW2/A. Thereafter, he came back to police station with SI Bhanu Prakash. In police station, SI Hansraj produced accused and three delinquents / juveniles namely S, R and Y. Thereafter, accused was arrested by him FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 20....of 49 vide memo already Ex.PW8/A. He correctly identified accused before court. Thereafter, other delinquents were apprehended by SI Hansraj with the help of JWO SI Ashok Giri. IO Hansraj also handed over carbon copy of disclosure statement of accused to him. Thereafter, in pursuance of disclosure statement of accused, accused led them to Tughlakabad Jungle opposite Indra Vikas Kalyan Kendra, Okhla Phase-I in police gypsy and other three juvenile were taken into a car with juvenile officer and other staff. Thereafter, accused pointed out place of incident to him and he prepared the pointing out memo vide already Ex.PW8/B. Thereafter, delinquent juveniles pointed out place of occurrence. After that accused led them to wall of fort of Tughlakabad from where, accused produced a white colour polythene taken from bushes before him. After opening the said polythene, one knife was produced before him and accused disclosed that it is the same knife which was used for commission of offence in the evening of 04.07.2010. He placed the same on white paper and prepared sketch of the said knife vide memo already Ex.PW-8/C and after measuring knife, prepared pullanda in the cloth and sealed the same with the seal of SR and took into possession vide seizure memo already Ex.PW-8/D. Blade of knife was made of steel and handle was made of aluminium type of metal. Thereafter, accused led them some distance from the previous place and produced a black FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 21....of 49 purse out of bushes before him. He opened the purse and found photocopy of one election ID card of deceased Sunil Kumar and one small diary. At that time, accused disclosed that he had already spent Rs.1500/- which were there in the purse. He kept the said election ID card and diary in the said purse and prepared a pullanda in a cloth and sealed the same with the seal of SR and took into possession vide seizure memo already Ex.PW-8/E. Accused also disclosed the fact that he was wearing the same cloths at the time of commission of offence which he were wearing at that time. Accordingly, his cloth i.e. white colour T-shirt and cream colour pant were taken into possession and kept in a parcel and sealed the same with the seal of SR and taken into possession vide seizure memo already Ex.PW-8/F. Some articles i.e. one part of scissor, one cricket bat, one pair of sleeper of deceased Sunil Kumar were got recovered by the delinquent juvenile from the said forest and he conducted the proceedings in the presence of juvenile officers SI Ashok Giri, SI Bhanu Prakash and other staff. Thereafter, they all came back to the police station alongwith accused and three juvenile and case properties. Case properties were deposited in the Malkhana by him and accused was sent to lockup and juvenile delinquents were taken by juvenile officers for further action. He recorded statements of witnesses. Thereafter, he moved an application in the concerned Court of MM for conducting TIP of recovered FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 22....of 49 case property. On 13/14.07.2010, TIP of the case property was conducted by concerned Link MM and witness correctly identified case property. SI Mahesh Kumar came to police station on 21.08.2010 and SI Mahesh Kumar went to spot with him where SI Mahesh Kumar prepared rough site plan at his instance and later on he handed over scaled site plan to him which he placed on file. He had sent case property to FSL through official of PS. Later on, he received result of FSL and placed the same on record. He has also sent weapon of offence alongwith MLC and post-mortem report to the Autopsy Surgeon for subsequent opinion and doctor gave his opinion and handed over the same to him. He placed the same on record. Thereafter, he prepared the charge-sheet and filed the same in the Court for trial. He correctly identified case property i.e. knife vide Ex.P-3 and stated that same was recovered at instance of accused, one white colour T-shirt and one cream colour pant vide Ex.P-4 and stated that accused was wearing the same clothes, one black colour purse, one small diary and photocopy (laminated) of Election ID card of deceased Sunil Kumar having his photograph on it collectively vide Ex.P5 and stated that same were recovered at instance of accused.
32. PW-19 Sunil Kumar deposed that he brought the summoned record i.e. Judicial File of case FIR No.244/10, State Vs. Vikki, u/s 394/392/397 IPC, PS Govindpuri. Copy of arrest FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 23....of 49 memo of accused in above-said case FIR No.244/10 was corroborated vide already Ex.PW15/C and personal search memo of accused was also prepared by IO in the above-said case vide already Ex.PW15/D and carbon copy of disclosure statement of accused recorded in case FIR No.244/10 vide already Ex.PW9/A.
33. PW-20 Ms. Veena Rani, Addl District & Sessions Judge, POLC, Dwarka Court deposed that on 14.07.2010, she was posted as Metropolitan Magistrate in Patiala House Courts, New Delhi. On that day, an application for judicial TIP of case property was received to her as marked by the then Ld. MM Sh. Munish Markan in the present case FIR as the first Link MM was not available. An envelope duly sealed with the seal of VR and bearing particulars of the present case was taken out from the judicial file which was opened after removing the seal and from it an application of IO for conducting TIP of accused Vikki addressed to Sh. Munish Markan, the then Ld. MM, New Delhi, another application of IO seeking copy of TIP Proceedings addressed to PW-20 and TIP proceedings of the case property were taken out. She deposed that on 14.07.2010, TIP proceedings were carried out by her and the IO produced one pullanda duly sealed with the seal of SR alongwith similar items for mixing with the case property. Sealed pullanda containing case property was opened in her chamber and at that FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 24....of 49 time, witness Manu Dass remained outside the Chamber. Case property i.e. one Gents purse containing one election card of Sumit Dass and one small note book. IO placed three purses for mixing with the case property with case property. Articles brought by IO were of similar size, shape and colour which were about to mix with the case property. Case property was arranged by her on the table after sending IO outside the Chamber. Case property was exhibiting at serial no. 3 from the right hand side and at serial no. 2 from her left hand side. Witness Manu Dass was called in the Chamber from outside Chamber and he was asked to identify the case property. Witness had correctly identified case property. She recorded his statement. She had also given certificate regarding correctly identifying the case property by the witness and also regarding the true and correct proceedings of the TIP of case property. Request of IO for seeking copy of TIP Proceedings was allowed. Ahlmad was directed to send original proceedings in sealed envelope to the concerned Court. Application of IO for requesting to conduct the judicial TIP was exhibited vide Ex.PW-20/A. TIP proceedings of the case property was exhibited vide Ex.PW-20/B. Application of IO for seeking copy of TIP proceedings was exhibited vide Ex.PW-20/C.
34. PW-21 Ms. L. Babyto Devi deposed that on 27.07.2010, she was working as Sr. Scientific Officer (Biology), FSL, FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 25....of 49 Rohini. On that day, ten sealed cloth parcels and one sealed envelope alongwith forwarding authority specimen seal letter was received in the office of FSL and same was marked to her for biological examination. Parcels were sealed with seal of "JPNATC AIIMS FORENSIC MEDICINE NEW DELHI" and "SR". She had examined the contents and prepared her report.
On biological examination, blood was detected on exhibits '1', '3', '4a', '4b', '4c', '4d', and '10a'. Blood could not be detected on exhibits '2', '5', '6', '7', '8a', '8b', '9a', '9b', '10b', '11a' and '11b'. On serological examination, exhibit '1', '4a', '4b' '4c', '4d' and '10a' were found to be no reaction in human origin. Exhibit '3' found to be of human origin and 'O' group. After examination the remnants of the exhibits were sealed with the seal impression of "BD FSL DELHI". Her FSL report No. FSL.2010/B-3270 dated 14.1.2010 was exhibited vide Ex.PW21/A. Her serological report was exhibited vide Ex.PW21/B.
35. PW-22 Parvez Alam deposed that in year 2010, he was residing on rent in the house of Mohd. Idrish at House No. 137, Gali No. 5, Churiya Mohalla, Tuglakabad Village, New Delhi. He was doing the work of tailoring. Zahid and Danish are maternal uncle (mama). On 04.07.2010, it was Sunday and holiday. On that day, he alongwith Zahid and Danish had gone to play cricket in the ground at a jungle near Tuglakabad fort. At FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 26....of 49 about 4:45 p.m., meanwhile, 3 / 4 boys came there who were resident of Valmiki Mohalla, Tuglakabad village. At that time, he was not knowing their names. Out of the said boys, one had taken bat from his hand and one of the boy had taken the mobile phone of Zahid. When the boy wanted to take out the money from pocket of Zahid and when he objected, the said boy had given a knife blow to Zahid due to which he received injuries in his stomach. Boy who had stabbed Zahid was being called by other boys as Vikki. Boy had robbed mobile phone of Zahid forcefully. One of the boy had hit on the head of Zahid with the bat. One of boy had hit him with a pointed sharp object like knife upon him and he received injury on his stomach. Accused had given a knife blow on his left thigh and robbed his Chinese mobile make Guild company and Rs.150/- forcefully. After the incident, all the boys fled away towards the jungle at Indira Kalyan Vihar side. Immediately after the incident, he came to know that those boys had committed murder of one boy. They had made a complaint about the robbery with them. SI Hans Raj had met them in the said case and four boys including accused, Shishpal, Raju and Yogesh were arrested in their case. The IO of the present case had inquired form him and his statement was recorded. Accused was correctly identified by witness in court.
36. PW-23 Mohd. Zahid deposed that in year 2010, he was residing on rent in the house of Mohd. Idrish at House No. 137, FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 27....of 49 Gali No. 5, Churiya Mohalla, Tuglakabad Village, New Delhi. He was doing the work of tailoring. Parvez Alam is his niece and Danish is his neighbourer in the village. On 04.07.2010, it was Sunday and holiday. On that day, he alongwith Parvez Alam and Danish had gone to play cricket in the ground at a jungle near the Tuglakabad fort. At about 4:45 p.m., meanwhile, 3 / 4 boys came there who were residents of Valmiki Mohalla, Tuglakabad village. At that time, he was not knowing their names. Out of the said boys, one had taken bat from the hand of Parvez Alam and started quarreling with him. He reached there to ask as to why they were quarreling with Parvez Alam and beating him. He intervened on which, one boy had taken his mobile phone and cash from his pocket. When PW-23 objected him, he gave knife blow due to which he received injuries on his stomach and left hand elbow. Boy who had given knife blow was being called by other boy as Vikki. Another boy had given bat blow on his head due to which he received injuries on his head. Accused had given sharp pointed object like knife blow to Parvez Alam due to which he received injuries on left thigh. He had robbed Chinese mobile make Guild company and Rs. 150/- forcefully from Parvez Alam. After the incident all the boys fled away towards the jungle at Indira Kalyan Vihar side. He alongwith Parvez Alam and Danish went to AIIMS Trauma Center in three wheeler. He was got admitted in the hospital. SI FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 28....of 49 Hansraj had met them after discharge from the hospital and his statement was recorded in their robbery case. Immediately after the incident, he came to know that those boys had committed murder of one boy in the jungle. They had made a complaint about the robbery with them. SI Hans Raj had met them in the said case and four boys i.e. accused, Shishpal, Raju and Yogesh were arrested in their case. IO of the present case had inquired from him and his statement was recorded. Accused was correctly identified by witness in Court.
37. Prosecution evidence was closed on 02.08.2022 on submissions of Ld. Additional PP for State.
38. On 15.12.2022, accused was examined under section 313 Cr.P.C wherein incriminating material appearing in evidence against accused was put to accused to which accused stated that it is correct that he was arrested in this case but it is incorrect that he had pointed out the place of incident. He stated that it is also incorrect that he had made any disclosure statement before police. Police had obtained his signatures on some blank papers and same were misused during investigation against him by writing some memos upon them in blank papers. He stated that he was wrongly identified by the witness. All the recovery were planted upon him in the PS and nothing incriminating was recovered from his possession or at his instance. He stated that he had not made any disclosure statement to the police. Police FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 29....of 49 has fabricated documents falsely after taking his signatures on some blank papers. He was falsely implicated in this case and in fact he has nothing to do with the alleged offence. He stated that he was arrested by the police in this case. He stated that except the contents regarding his arrest in the present case, the whole contents of the para are incorrect. He stated that he had not made any disclosure statement to the police in any case and police had fabricated the false evidence in order to solve the blind case of murder, in fact he had nothing to do with alleged offence. Nothing incriminating was recovered from his possession or at his instance. He stated that alleged case property was planted upon him by police official in the PS. In fact, he was wrongly identified by witnesses. He had no concern with the alleged crime at all. He stated that it is correct that he was arrested in this case. However, remaining contents of the para are totally wrong. He stated that he had not made any disclosure statement before the police and police has fabricated the false disclosure statement in his name of its own. In fact, he is innocent and no recovery of any kind was effected from his possession or at his instance. He stated that police has misused the blank papers signed by him under the threat of IO while he was in custody. He is innocent and has been falsely implicated in this case. He stated that police has fabricated the false disclosure statement of his in order to solve blind case of FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 30....of 49 murder. He is innocent and has been falsely implicated in this case. Nothing incriminating was recovered from his possession or at his instance. Alleged case property was planted upon him in the PS. No recovery of any kind was effected from his possession or at his instance during investigation. Police took his signatures on several blank papers and same were misused against him during investigation only to solve blind murder case. He stated that he had not made any disclosure statement either in this case or in other case at all. He stated that police has fabricated the same at its own. He is innocent and has been falsely implicated in this case.
39. No DE was led by accused.
40. I have heard arguments addressed by respective counsels and perused the record including judgments filed on behalf of accused.
41. Defence counsel during course of arguments submitted that in present case, there is no eye witness examined by prosecution and that case of prosecution is based on circumstances evidence i.e. alleged recovery of weapon of offence at instance of accused and recovery of wallet of deceased at instance of accused. He submitted that it is well established that in such a case, circumstances indicating towards guilty of accused have to be conclusively proved by prosecution. He argued that alleged recovery effected in this FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 31....of 49 case at instance of accused is in presence of police officials only and that no public witnesses were joined while effecting alleged recovery which makes case of prosecution doubtful. He argued that alleged motive of commission of murder of deceased in this case is said to be robbery by prosecution but that it has come on record that wrist watch and ring were worn by deceased at the time of recovery of dead body of deceased and had motive of commission of murder of deceased was robbery, wrist watch and ring of deceased would have definitely been removed by perpetrators of crime in question. He submitted that PW-4 SI Sahi Ram is 1st police official who reached at the spot on receipt of information who correctly observed that present case is plain case of murder and that no motive of commission of murder of deceased thus can be said to have been proved by prosecution on record and accused in these circumstances deserves to be acquitted.
42. Present case was worked out on arrest of accused and JCLs in FIR No. 244/2010 U/sec 392/394/397/34 IPC PS Govind Puri. Accused disclosed in FIR No. 244/2010, PS Govind Puri regarding commission of murder of deceased and robbery of Rs. 1500/- and purse of deceased in present FIR. Disclosure statement of accused in FIR No. 244/2010, PS Govind Puri has been exhibited on record by State vide Ex. PW- 9/A. FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 32....of 49
43. It is well settled that disclosure statement of accused made to a police officer cannot be proved against accused U/sec 25 of Indian Evidence Act. However, Section 27 of Indian Evidence Act provides an exception to this established principle which provides that when any fact is deposed to as discovered in consequence of an 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.
44. In disclosure statement of accused Ex. PW9/A, accused has explained manner of commission of offence in present case but that same is inadmissible due to bar created by Section 25 of Indian Evidence Act. Accused in Ex. PW9/A also disclosed that he can get recovered purse of deceased, knife, scissor and bat etc used in commission of offence. Now, this much of information can be proved against accused by prosecution if recovery is ultimately effected.
45. In "Bodha and Others Vs. State of Jammu and Kashmir AIR 2002 SC 3164", Hon'ble Apex Court of India held that a statement even by way of confession made in police custody which distinctly relates to the facts discovered is admissible in FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 33....of 49 evidence against the accused. The statement which is admissible under Section 27 is the one which is the information leading to recovery. Thus what is admissible being the information, same has to be proved and not the opinion formed on it by the police officer. The exact information given by the accused while in custody which led to the recovery of the article has to be proved; the exact information must be adduced through evidence.
46. Now let me analyze as to whether information as admissible under Section 27 of Indian Evidence Act has been proved by prosecution in Ex. PW-9/A.
47. PW-9 HC Jaivir Rathi was cross examined by defence counsel. PW-9 in his cross-examination stated that disclosure statement of accused Vikki was recorded by IO in case FIR No. 244/2010 in Tuglakabad jungle back side of the school. He stated that it was afternoon hours. He stated that at the time of recording of disclosure statement of accused Vikki, the entire team consisting of IO SI Hansraj, himself, HC Daya Kishan, HC Pramod, HC Dinesh, Ct. Jagjeevan etc were present. He stated that they remained in jungle for about 2 and a half / 3 hours. He stated that SI Hansraj recorded the disclosure statement in his own handwriting while sitting on the ground. He stated that only he signed the disclosure statement of accused Vikki as witness in case FIR No. 244/2010. Except FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 34....of 49 these questions asked from PW-9 in his cross-examination, rest of questions are in form of suggestions which PW-9 has denied. No discrepancy in cross-examination of PW-9 could be elicited by defence counsel. Ex. PW-9/A is witnessed only by PW-9 as evident by seeing Ex. PW-9/A. PW-11 SI Hansraj who recorded disclosure statement of accused has corroborated Ex. PW-9/A. He in his examination in chief deposed to have handed over disclosure statement of accused to IO of present case. He as well as PW-9 correctly identified accused before court in their respective examinations in chief. PW-11 was not cross examined by defence counsel despite opportunity being given in this regard. From examination in chief, cross examination of PW-9 and examination in chief of PW-11, it becomes clear that prosecution has been able to prove Ex. PW-9/A i.e. disclosure statement of accused so far as admissible under Section 27 of Indian Evidence Act.
48. Now, let me analyze as to whether information as disclosed by accused in Ex. PW-9/A led to discovery of any fact.
49. Recovery of knife allegedly used in commission of offence in present case was effected at instance of accused vide Ex. PW8/D. Recovery of purse of deceased containing photocopy of Election ID card and diary of deceased was FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 35....of 49 effected at instance of accused vide Ex. PW8/E.
50. In "State of Delhi Vs. Manoj Nafri & Others Crl. A. 68/2000 decided on 13.11.2019" Hon'ble High Court of Delhi held as below: Before dealing the prosecution evidence on the seizure/recoveries effected by police during investigation, it will be pertinent to clarify few legal aspects (pertinent for adjudication of this appeal on merit) regarding the relevancy of discovery of facts under section 27 Indian Evidence Act
(i) If recovery is made from an open place which is not only accessible, but also visible to the public at large, then such recovery is not relevant. But merely because a recovery is effected from an open and accessible place, which is not visible to the public at large, then it still be relevant.
(ii) Mere discovery of a fact by reason of information by accused is not relevant under section 27. To make the information admissible, it must further be shown by other evidence that the articles discovered were connected with the offence charged and hence points towards the guilt of the accused.
(iii) If the same disclosure is made by several accused persons, then the disclosure by accused which is first in point of time is FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 36....of 49 only relevant.
51. Weapon of offence i.e. knife used in commission of offence in present case was recovered at instance of accused vide Ex. PW8/D. Place from which knife was recovered was inside bushes towards wall of fort in Tuglakabad Jungle. Place of recovery is inside jungle, in bushes towards wall of fort. As such, it cannot be said that place of recovery of knife is visible to public at large.
52. Medical opinion has been taken by IO qua knife recovered at instance of accused vide Ex. PW13/B wherein concerned doctor has opined that injuries as mentioned in PM report of deceased are possible from examined weapons i.e. knife, half scissor and cricket bat. Sketch of knife examined by concerned doctor has also been exhibited on record vide Ex. PW13/E. PW13 Dr. R. P. Singh has not been cross examined by defence counsel despite opportunity given in this regard meaning thereby that opinion of doctor Ex. PW13/B and sketch of examined knife Ex. PW13/E stands proved.
53. Sketch of knife recovered at instance of accused has been exhibited on record vide Ex. PW8/C. No question has been asked by defence counsel to PW8 Ct. Anil qua Ex. PW 8/C who is also a witness on Ex. PW8/C. No question in cross FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 37....of 49 examination regarding Ex. PW8/C has been put to PW10 SI Bhanu Prakash (another witness on Ex. PW8/C) and IO /PW 18 by defence counsel. Dimensions of knife examined by PW 13 and that as mentioned in Ex. PW8/C are same meaning thereby that both recovered and examined knife are the same. Asking no question from PW8, PW10 and PW18 regarding Ex. PW8/C proves Ex. PW8/C. Further, knife was produced before court in testimony of PW8 firstly in sealed condition. In view of the same, it can be said that prosecution has been able to prove that injuries caused to deceased were possible from knife recovered at instance of accused.
54. Purse of deceased was recovered at instance of accused vide Ex. PW8/E. Place from which purse was recovered was inside bushes towards wall of fort in Tuglakabad Jungle. Place of recovery is inside jungle, in bushes towards wall of fort. As such, it cannot be said that place of recovery of purse of deceased is visible to public at large.
55. TIP proceedings of purse of deceased has been proved on record by State vide Ex. PW20/B. PW20 is Ms. Veena Rani, Ld. Additional District and Sessions Judge who conducted TIP proceedings of purse of deceased wherein purse of deceased was correctly identified by cousin by deceased namely Mannu Dass. PW20 has not been cross examined by defence counsel FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 38....of 49 despite opportunity being given in this regard meaning thereby that purse recovered at instance of accused belonged to deceased stands proved.
56. PW8 Ct. Anil and PW10 SI Bhanu Prakash are witnesses to recovery memo of purse of deceased Ex. PW8/E. No question has been asked by defence counsel to PW8 and PW10 regarding Ex.PW8/E. Defence has merely given one suggestion to IO /PW18 regarding planting of purse of deceased upon accused which PW18 has denied. Except one suggestion put to PW18, no question has been asked by defence to PW18 /IO regarding Ex. PW8/E. Further, purse of deceased was produced before court in testimony of PW8 firstly in sealed condition. All this proves recovery of purse of deceased containing copy of Election I card and diary of deceased at instance of accused.
57. Counsel for accused filed judgment in case titled as "Shishpal @ Shishu Vs. The State (NCT of Delhi) Criminal Appeal No. 1053 of 2015 decided on 11.07.2022". This judgment of Hon'ble Apex Court talks about stock witnesses, reliability of evidence and principles of Section 34 IPC but facts of present case are quite diverse and do not tally with facts of the judgment and hence this judgment is not applicable in facts FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 39....of 49 and circumstances of present case.
58. Defence counsel filed judgment in case titled as "State (Govt. of NCT of Delhi) Vs. Naresh and Others MANU/DE/0415/2012" wherein Hon'ble High Court of Delhi dismissed appeal against acquittal by observing that circumstance of recovery of the knife and the cricket bat was not believed and, in our opinion, rightly so, by the Ld. Trial Court. No independent public witness was joined at the time of alleged recoveries.
59. I am of the view that facts in aforesaid judgment are not identical / similar to facts in present case and rather testimonies of police officials in this case is reliable and confidence inspiring as firstly many witnesses have not been cross examined regarding relevant documents /facts as discussed above and secondly no material discrepancy could be brought out by defence counsel in testimonies of prosecution witnesses. Cross examination of PW9 has been discussed in earlier part of judgment. PW11 i.e. of IO FIR No. 244/2010, PS Govind Puri has not been cross examined at all by defence. No reason has been suggested by defence to falsely implicate accused in present case to prosecution witnesses except one suggestion given to IO that accused has been arrested in this case in order FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 40....of 49 to solve blind case of murder.
60. It is well settled principle of law that mere non joining of independent witnesses itself is no ground to discard prosecution version. In case titled as "Appa Bai and Another Vs. State of Gujarat AIR 1988 Supreme Court 696", Hon'ble Supreme Court of India observed that the prosecution story cannot be thrown out on the ground that an independent witness has not been examined.
61. In case titled as "State, Govt. Of NCT Of Delhi Vs. Sunil And Another on 29 November, 2000 Appeal (crl.) 11191120 1998" Hon'ble Apex Court of India held as below: "In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. Section 100 (5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 41....of 49 respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helterskelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. vs. S. Sardar Ali & ors. (1983 SC 1225). Following observations of Chinnappa Reddy, J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 42....of 49 deals with searches and not seizures. In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub section (4) and (5) of section 100 of the Criminal Procedure Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of the vehicle itself.
Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the Investigating Officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of course, if any such statement leads to recovery of any article it is open to the Investigating Officer to take the signature of any person present at that time, on the document prepared for such recovery. But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the Investigating Officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth."
FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 43....of 49
62. In view of law laid down in Sunil's case (Supra) and in facts and circumstances of present case, I am of the opinion that non joining of public / independent witnesses has not reduced credibility of prosecution version in this case.
63. Counsel for accused during course of arguments submitted that as per prosecution story, deceased was found to be wearing ring and wrist watch and motive for commission of murder of deceased has been put forth by prosecution to be robbery. He submitted that in case, motive of accused and JCLs was to commit robbery with deceased, why would they left ring and wrist watch on body of deceased. He submitted that in this case, prosecution failed to prove motive of accused in commission of offence in question which reduces credit of prosecution version and accused is liable to be acquitted on this ground.
64. In "Bipin Kumar Mondal Vs. State of West Bengal (2010) 12 SCC 91", Hon'ble Supreme Court of India held that motive is a thing which is primarily known to the accused himself and it may not be possible for the prosecution to explain what actually prompted or excited him to commit a particular crime.
FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 44....of 49
65. In case titled as "Ujjagar Singh Vs. State of Punjab Appeal (crl.) 1044 of 2006 decided on 13.12.2007", Hon'ble Apex Court held that in a case relating to circumstantial evidence, motive does assume great importance, but to say that the absence of motive would dislarge the entire prosecution story is giving this one factor an importance which is not due. Motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.
66. In this case, purse of deceased was recovered at instance of accused which fact has already been proved by prosecution. Had motive of accused was not to commit robbery with deceased, why would accused threw purse of deceased which he got recovered later on. Motive of accused in this case stands proved to be that of commission of robbery with deceased. Merely because ring worn by deceased was not taken away by accused or JCLs would not disprove motive of accused in commission of murder of deceased particularly when purse of deceased has been proved to have been recovered at instance of accused. However, absence of motive will not dislodge version of prosecution in this case but rather prosecution has been able to prove motive of accused in commission of murder of deceased. Hence, this contention of defence counsel is without merits and rejected.
FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 45....of 49
67. Counsel for accused further filed judgment in case titled as "Kamal Kishore Vs. State of Delhi MANU/DE/1698/2014", wherein Hon'ble High Court of Delhi allowed appeal filed by appellant and acquitted him but facts and circumstances of this case are different from facts and circumstances of present case. In this case, Hon'ble High Court of Delhi doubted recovery of weapon of offence on account of two versions and prosecution could not connect appellant with commission of murder of deceased. In this case, recovery of weapon of offence i.e. knife and recovery of purse of deceased at instance of accused has been proved on record by prosecution beyond reasonable doubt. Further, no reason for falsely implicating accused in present case has been put forward by defence except one suggestion given to IO that accused has been arrested in order to solve blind murder case which suggestion has been denied by IO. Further, as per subsequent opinion of injuries of deceased Ex. PW13/B, injuries mentioned in PM report of deceased were possible interalia from knife recovered at instance of accused.
68. Prosecution has further examined two victims of FIR No. 244/2010, PS Govind Puri namely PW22 Parvez Alam and PW23 Mohd. Zahid who though not eye witnesses to commission of offence in question but both the witnesses have identified accused to be one of person who robbed them and FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 46....of 49 caused injuries to them with JCLs. These witnesses have not been cross examined on behalf of accused despite opportunity being given. These witnesses in their depositions have stated that they have gone to play cricket in ground at a jungle near Tuglakabad Fort where incident took place with them. Non cross examination of these witnesses at least prove that accused was present in jungle near Tuglakabad Fort on the day of alleged incident i.e. on 04.07.2010. No suggestion has been given by defence to any of prosecution witnesses denying presence of accused and JCLs involved in the present case at place of commission of murder of deceased which implies that accused admit that he was present on the day of incident at place of commission of offence in question. No reason has been assigned by accused of his presence in a jungle near Tuglakabad Fort which further fortifies version of prosecution.
69. Recovery of knife at instance of accused has been proved on record by prosecution vide Ex. PW8/D as per which, length and breadth of blade of knife recovered at instance of accused was 20 cm and 2.5 cm respectively which is in contravention of DAD notification dated 29.10.1980 bringing case of accused within purview of Section 25 of Arms Act.
70. State has been able to prove recovery of purse of deceased at instance of accused through Ex. PW8/E. Throwing FIR No: 241/2010 PS: Govind Puri Case Registration No. 2018/2016 page no. 47....of 49 purse of deceased in bushes clearly implies motive of accused. As per subsequent opinion of doctor Ex. PW13/B, it further stands proved that injuries on body of deceased as mentioned in postmortem report are possible by examined weapons including knife recovered at instance of accused which is a deadly weapon bringing case of accused within parameters of Section 397 IPC.
71. Accused has also been charged for commission of offence u/sec 394/34 IPC. Section 394 IPC provides punishment for voluntarily causing hurt in committing robbery. In this case, victim was murdered by accused alongwith JCLs while committing robbery and accused has been charged for commission of offence U/sec 302/34 IPC for the same which is a larger offence wherein Section 394 IPC is implicit and so, no separate conviction of accused can be done for commission of offence U/sec 394 /34 IPC.
72. As discussed earlier, as per subsequent opinion of doctor concerned, injuries suffered by deceased are possible by weapons produced for examination and knife recovered at instance of accused was one of the weapon presented for examination of doctor concerned which fact proves case of prosecution against accused so far as commission of offence U/sec 27 of Arms Act by accused is concerned.
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73. In view of my abovemade discussion, I am of the view that prosecution has been able to prove its case against accused beyond reasonable doubt for commission of offences U/sec 302/34/397 IPC and Section 25/27 of Arms Act. Accordingly, accused is held guilty for commission of offences U/sec 302/34/397 IPC and Section 25/27 of Arms Act.
Dictated and Announced
in open court on 28.03.2023 (Sonu Agnihotri)
ASJ-03 (South- East),
Saket Courts, New Delhi
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