Delhi District Court
State vs . (1) Shankar on 22 November, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session Case No.:1001/09
Unique Case ID No.: 02404R0010172009
State Vs. (1) Shankar
S/o Prakash
R/o Jhuggi No. 150,
EE Block, Jahangir Puri.
Delhi
(Convicted)
(2) Raman Shera @ Gujjar
S/o Mahinder Shera
R/o Jhugi No. 143,
EE Block, Jahangir Puri,
Delhi
(Acquitted)
(3) Vijender @ Kuchhi
S/o Prakash
R/o Jhuggi No. 150,
EE Block, Jahangir Puri.
Delhi
(Acquitted)
FIR No.: 434/08
Police Station: Jahangir Puri
Under Section: 302/201/120B/34 IPC
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 1 of 84
Date of committal to Session Court: 17.1.2009
Date on which orders were reserved: 8.11.2011
Date on which Judgment pronounced: 22.11.2011
JUDGMENT:
As per allegations on the intervening night of 22/23.8.2008 at EE Block, Behind Jhuggies, near Saulabh Sauchalaya, Jahangir Puri, Delhi all the three accused namely Shanker, Raman Shera and Vijender in pursuance of their criminal conspiracy agreed with each other to do an illegal act that is the murder of Mukesh Kumar. Further, it is alleged that all the above accused in furtherance of their common intention knowingly and intentionally committed murder of Mukesh Kumar with the help of wooden leg i.e. paya of the cot and also giving fist and leg blows to Mukesh. Also, as per the allegations after committing the murder of Mukesh Kumar all the three accused threw the dead body of Mukesh Kumar behind Sulabh Sauchalya and house No. 2860/51, EE Block, Jahangir Puri, Delhi to escape from legal punishment.
CASE OF THE PROSECUTION/ BRIEF FACTS:
The case of the prosecution is that on 23.8.2008 at about 6:15 AM, DD no. 15B was received in Police Station Jahangir Puri pursuant to which SI Charan Singh and Ct. Anand Prakash reached at EE Block, near Sulabh Sauchalya where they came to know that the St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 2 of 84 injured was removed to Babu Jagjeevan Ram Memorial Hospital. SI Charan Singh obtained the MLC of the injured Mukesh who was unconscious and unfit for giving statement. The rukka was prepared and the FIR was got registered under Section 308 IPC. On 25.8.2008 SI Charan Singh went to the house of Mukesh wherein one Rajesh the brother of the injured met him and informed him that Mukesh was having illicit relations with one Babbu the wife of Shanker (accused no.1) a resident of the same area and Shankar had beaten Mukesh as a result of which Mukesh sustained injuries. On the same day that is 25.8.2008 the injured Mukesh expired after which the postmortem examination was got conducted. On 29.8.2008 ASI Surender Singh from AATS apprehended the accused Shanker who disclosed his involvement in the present case after which he was arrested under Section 41.1 Cr.P.C. Thereafter, on 19.2008 the accused Shankar was arrested in this case and pursuant to his disclosure statement the accused Shankar got recovered his blood stained clothes and a leg of the cot (paya) with which he had inflicted injuries upon the deceased.
Further, on 12.9.2008 Babbu Bharti the wife of accused Shanker met the Investigating Officer and on 15.9.2008 her statement was got recorded before the Ld. MM under section 164 Cr.P.C. wherein she had alleged the involvement of accused Raman Shera and Vijender. Thereafter both the accused Raman Shera and Vijender were arrested on 21.9.2008. After completion of the investigations all the accused St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 3 of 84 were charge sheeted for the offence under Section 302/201/120B/34 Indian Penal Code.
CHARGE:
The Ld. Predecessor of this Court has settled the charges under Sections 120B, 302/201/34 Indian Penal Code to which all the accused pleaded not guilty and claimed trial. EVIDENCE:
In order to prove its case the prosecution has examined as many as twenty eight witnesses as under:
Public/ eye witnesses:
PW1 Shanno Devi is the mother of the deceased who has deposed that Mukesh was her son who was unmarried and was a driver by profession. She has further deposed that Babbu is the wife of accused Shankar and about one and half year prior to the incident her son was maintaining illicit relations with Babbu due to which reason accused Shankar and his son Mukesh had quarreled on several occasions but they had not reported the same to the police. According to her, she had advised Mukesh several times to stop this liaison but he did not give any heed to her advice and kept maintaining the relations with wife of accused Shanker and often asked her for money for giving to Babbu. She has testified that on 22.08.2008 she was present in her house and her sons Rajesh, Mukesh and her nephew St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 4 of 84 Gopal were sitting outside and were gossiping when at about 11:30 PM Mukesh went to get a biri. The witness has further deposed that on 23.08.2008 she came to know that Mukesh was lying in an unconscious condition near the Sulab Shauchalya and was taken to the hospital by her other son Rajesh. She has deposed that she had waited for her son throughout the night but he did not return. According to the witness, her son expired on 25.08.2008 during treatment due to the injuries received on the night of 22.08.2008 and she suspected that accused Shankar was responsible for the death of her son. She has proved her statement given to the police which is Ex.PW1/A where she had put her thumb impressions. She has correctly identified the accused Shanker in the Court.
In her cross examination by the Ld. Defence Counsels the witness has deposed that her son Mukesh was unmarried and had told her that he was maintaining relations with Babbu. She has also deposed that her two other sons also resided with her who are younger to Mukesh but they never gave physical beatings to Mukesh in order to desist him from maintaining relations with Babbu. The witness has further testified that the jhuggi of accused Shankar was about ten steps away from her jhuggi. According to her, she had also scolded Babbu not to carry on her relations with Mukesh and she (witness) used to speak to Babbu almost daily advising her not to maintain relations with Mukesh. The witness has further stated that she had St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 5 of 84 not met the accused Shankar to advise him to check his wife. She did not remember how long prior to 22.08.2008 Shankar and Mukesh had quarreled with each other. She has denied the suggestion that her son Mukesh was not maintaining any illicit relations with the wife of accused Shankar or that Shankar and Mukesh had never quarreled with each other. The witness has further denied that her son was of deviant nature and maintained bad company or that sine he was out of her control, he did not pay heed to her advise.
PW2 Rajesh Kumar is the brother of the deceased who has deposed that deceased Mukesh was his elder brother and was having illicit relations with Babbu, wife of accused Shankar (accsued identified by the witness) who was residing in EE block, Jhuggi No. 150, Jahangirpuri, Delhi. According to the witness, he was having knowledge of the illicit relations of this brother for about one and a half year prior to the incident and made efforts to make his brother understand that his actions were not good for him as Babbu was already married and accused Shanker was a criminal of the area. He has further testified that some quarrel had also taken place between his brother and accused Shanker on this ground and in the intervening night of 22/23.08.08 at about 11:30 PM his brother Mukesh told him that he was going to purchase "bidi" and went towards jhuggi of EE block. He has deposed that they waited for his brother but he did not turn up and thereafter he went to sleep and in the morning when he St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 6 of 84 went for a morning walk when he saw a crowd near Shulab Shauchalya and when he went inside the crowd he found that his brother was lying in an injured and in an unconscious condition. The witness has also deposed that he thereafter informed to PCR at 100 number after which PCR van came there and took his brother to BJRM hospital where his brother was referred to LNJP hospital. According to PW2, on 25.08.2008 his brother expired in the hospital after which postmortem examination of his brother was got conducted and he identified the dead body of his brother on 26.08.2008 in mortuary vide statement Ex.PW2/A. He has proved having received the dead body of the deceased vide receipt Ex.PW2/B and has deposed that they suspected the accused Shankar as his brother was having illicit relations with the wife of Shanker and since his brother was not having any enmity with anyone else. According to the witness, once the accused had quarreled at their house and his brother gave the application in the police station against the accused Shankar. The witness has proved that on 29.08.08 he remained in the investigations of this case alongwith investigating officer/ Inspector Vipin Kumar Bhatia when the Investigating Officer lifted blood stained earth from the spot where dead body of his brother was found which were put up into a pullanda and sealed with the sealed of VKB and seized vide memo Ex.PW2/C. According to PW2, he handed over to the investigating officer a copy of the complaint which was St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 7 of 84 given by his brother against the accused at police station Jahangirpuri which was registered vide DD No. 54B dated 24.09.07 which is Ex.PW2/D. PW2 has also proved that the Investigating Officer got the photographs of the spot.
In his cross examination the witness has deposed that he had no knowledge as to in how many cases his brother was involved but has denied the suggestion that his brother was a Bad Character of the area. According to him, he had not seen his brother and Babbu in compromising position but states that she had many times visited their house and his brother many times had asked him to accompany him to meet Babbo. The witness has also deposed that on many occasions he tried to make his brother understand but he never talked to the accused Shanker in this regard. PW2 has testified that his statement was recorded twothree times and the complaint Ex.PW2/D is not in the handwriting of his brother since he (deceased) did not know how to write but it contains his (deceased) signatures at point A as he used to sign. He has denied the suggestion that the complaint Ex.PW2/D does not bear the signatures of his brother at point A or that they had later on given this complaint to implicate accused Shankar. He has however admitted that no date is mentioned on the application and he has denied the suggestion that his brother was not having any illicit relations with Babbu. According to the witness, he had put signatures on three to four occasions, some of which he had signed in the police St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 8 of 84 station and some in the hospital. He has denied the suggestion that his brother deceased Mukesh was facing trial in a number of cases or that he was having enmity with a number of persons. PW2 has testified that he had told the investigating officer in his statement under Section 161 Cr.P.C. that Shankar had came to his house or that he had quarreled with his brother but when confronted with his statement Ex.PW2/D the said facts are not found so mentioned. He has denied the suggestion that he has deposed falsely being the brother of deceased Mukesh.
PW3 Ravi Kumar is the younger brother of the deceased who has deposed that on 23.08.08 his elder brother Mukesh was got admitted by his brother Rajesh in BJRM hospital in an injured and unconscious condition who was later on referred to LNJP hospital and he also reached in the hospital later on. According to him, his brother was wearing a pajama of blue color when he was admitted in the hospital and it was having some blood stained. He has deposed that on 25.08.08 his brother was expired and doctor had asked him to remove the pajama from his brother which pajama he had kept at their house. The witness has further deposed that on 27.08.208 he handed over the pajama to police which was put up into pullanda and sealed with the seal of CS and seized vide memo Ex.PW3/A. He has identified the pajama belonging to his brother which is Ex.P1. St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 9 of 84 In his cross examination by Ld. Defence counsel witness the witness has deposed that his statement was recorded at his house on 27.08.08 in the morning hours and he had signed the seizure memo at his house.
PW5 Anil Sharma is a private photographer who has deposed that on 29.8.2008 on the asking of Investigating Officer Inspector Vipin Bhatia he had gone outside House No. 2860/61, EE Block, Jahangir Puri that is the gali behind Sulabh Sauchalya where blood was lying on the road. He has proved having taken the photographs at the spot with his digital camera which are Ex.PW5/A1 to Ex.PW5/A4 which he handed over to investigating officer Insp. Vipin Bhatia.
In his cross examination by Ld. Defence counsel the witness has deposed that he had reached at the spot at about 3:30 PM and remained there for about 15 minutes where eight to ten public persons were present there.
PW7 Manju is a resident of the same area who has deposed that all the three accused persons (correctly identified by the witness) are residing in EE Block Jhuggies and Bharti @ Babbu is the wife of Shankar. According to the witness, deceased Mukesh used to visit the jhuggi of accused Shankar to meet his wife in the absence of accused Shankar but she is not aware as to what kind of relations were there between Mukesh and the wife of accused Shanker. According to St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 10 of 84 her, about two years ago (the exact date or month she does not remember) when she was washing his face suddenly some hue and cry was raised in the jhuggies and she saw that behind the toilet Mukesh was lying unconscious. She has further deposed that some family members of Mukesh rang up the police at number 100 and a large number of persons from the jhuggies were gathered over there but she is not aware as to under what circumstances Mukesh was lying in injured and unconscious condition over there. Witness has further deposed that later on the persons in the gali and the wife of accused Shanker both were stating that Shanker had given beating to Mukesh but she was not any eye witness to the said incident and her statement was recorded in this regard by the police.
The witness was crossexamined by Ld. Addl. PP for the State since she was found residing from her previous statement. In her crossexamination she has admitted that accused Shanker had many times gone to jail and that accused Shankar used to quarrel with neighbourers and threatened them and once he had quarreled with her husband. She has also admitted that that relations between Bharti @ Babbu, the wife of accused and accused were not good and that the incident was of 23.08.08 and on that day Bharti @ Babbu told her that Shanker had given beatings to Mukesh with paya of cot (charpai) because he had come to meet Babbu in the night at around 11:30/12PM. According to her, the toilet is situated near the house of St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 11 of 84 accused Shankar. She has also correctly identified the accused Shanker in the Court.
In her cross examination by Ld. Defence counsel the witness has deposed that her house is situated six jhuggies away from the house of Shanker. According to her, the police had not recorded statement of any person from those six jhuggies and accused had started talking with them after about 15 days after the incident. She has denied the suggestion that Babbu wife of accused had not disclosed anything to her or that accused was having good relations with his wife.
PW8 Babbu Bharti is the wife of the deceased who has turned totally hostile and has stated that she does not know anything about this case as she was not present in her house.
In her cross examination by the Ld. Addl. Public Prosecutor for the State she has deposed that she was married to accused Shanker about eight years ago who initially was working in MCD but later on he was terminated from the service as he was arrested in a case. According to the witness, her husband is facing trial in fivesix cases and remained in jail for about three and a half years after six months of her marriage and thereafter remained in jail for sometime. She has further deposed that she knew deceased Mukesh as he used to take drugs along with his father and used to came to her parental house which is situated in the nearby jhuggi of St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 12 of 84 her husband but he (Mukesh) did not use to visit to her Jhuggi. According to the witness, she had given birth to a female child in Hindu Rao Hospital from her husband Shanker which child expired after about three month. She has admitted that she gave birth to a female child on 08.10.2007 in Hindu Rao Hospital. According to the witness, her husband was in jail when she gave birth to this female child and her husband had gone to jail when she was pregnant at about one month prior to giving birth of female child but she is unable to tell for how many days her husband remained in jail in the year 2005 or 2006. She has deposed that she knew Manju, who reside in her neighbourhood and was having relations with her as of a neighbourer. According to the witness, her husband used to take drink occasionally. She has admitted that a quarrel took place between her husband and deceased Mukesh on 24.09.2007 but has voluntarily added that the quarrel had taken place in a park on the point of gambling in which quarrel her husband caused injuries to Mukesh and also sustained injuries in the said incident. The witness has denied the suggestion that her husband had attacked Mukesh at his house. She has also deposed that accused Raman is her jeth and accused Bijender is her devar but has explained that they are not her real jeth and devar. She has admitted having made her statement before the Ld. MM but has voluntarily stated that police officials had threatened her and her family members to implicate them in a false St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 13 of 84 case and it was under their influence she had given the statement to the Ld. MM. She has identified her signatures on her statement recorded by the Ld. MM which is Ex.PW8/A. According to the witness her statement was recorded in the Court and she was made to sit on a chair on the dais itself besides the chair of the Judge and there was no police official present in the court room but they were standing outside the court room. She has admitted that Ld. MM has questioned her whether she had any kind of fear or pressure on her mind for making a particular kind of statement in the Court or was she under some threat from somebody for making statement or that if she had some apprehension or fear, then her statement would be recorded on the next date or after sometime. She has admitted that she had answered that she was under no pressure from anyone to make a particular statement and she was making the statement of her own, there is no pressure or threat upon her to make a particular statement but has voluntarily added that police officials were standing outside the court room. When the statement of the witness recorded by the Ld. MM under Section 164 Cr. P.C. was read over to her, she affirmed that she had stated to the Ld. MM from point A to A of her statement Ex.PW8/A and also affirmed the same it as correct as stated by her to the Ld. MM but has voluntarily added that she had given the statement under the pressure from the police as they had doctored her in this regard. Witness has denied the suggestion that St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 14 of 84 she was not under the pressure or undue influence from the police when she had given her statement under Section 164 Cr. P.C. to the Ld. MM or that she had given her statement voluntarily and had stated true facts before the Ld. MM. According to her, she was still the wife of accused and was living in her sasural. She has denied the suggestion that she has deposed falsely in the Court due to fear from her husband and other accused as they are criminal and are facing trial in murder cases. She has further denied the suggestion that other accused Bijender and Raman are the relatives of Shanker or that accused Shankar along with his cousin brother accused Raman and Bijender gave beatings to Mukesh and caused his death with whom she was in love or that on the intervening night of 22/23.08.08 she was present in her jhuggi when this incident occurred. According to her, she had not given any statement to the police and police had obtained her signatures on the blank papers. She has also denied the suggestion that she had narrated all the incident to her neighbourer Manju in the morning.
In her cross examination by Ld. Defence counsel the witness has admitted that she is illiterate and she only write her name in Hindi.
PW10 Smt. Meenu is also a neighbour of the accused who has deposed that she knew accused Shanker in the Court as he reside in the neighbourhood in the adjoining jhuggi along with his St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 15 of 84 wife Smt. Babbu Bharti. According to the witness, the relations between Shanker and his wife were not cordial and Shanker used to quarrel with his wife. She has testified that she also knew Mukesh who used to visit the jhuggi of Bharti @ Babbu and on night of 22/23.08.2008 she was sleeping in her jhuggi along with her children when she heard noise on which she came out when he saw that Shanker was quarreling with Mukesh and thereafter she went inside. She has further deposed that this incident was took place 1.30 AM
2.00 AM and thereafter she went inside her jhuggi and had gone to sleep. According to PW10, on next day in the morning she came to know that Mukesh has been taken to the hospital and later on he expired.
With the permission of the Court, leading questions were put by the Ld. Addl. PP for the State during which she has admitted that there was illicit relation between Babbu @ Bharti (wife of accused Shanker) and Mukesh and that on the intervening night of 2223.08.2008 after hearing the noise when she came out, she saw accused Shanker giving beating to Mukesh with 'Pava' of Charpai (leg of cot) on the floor near the Nala. The witness has also admitted that when Shanker saw her then he threatened her not to disclose anything to anybody after which she went inside the jhuggi.
In her cross examination by Ld. Defence counsel, the witness has deposed that police had not recorded her statement. St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 16 of 84 According to her, she had seen the deceased Mukesh while coming and going to the jhuggi of Babbu @ Bharti but she had never seen them in a compromising position. She has denied the suggestion that she had not seen Mukesh while going and coming to the jhuggi of Babu @ Bharti. According to her, there are around 50/60 jhuggies in the locality but no other public person gathered in the night and she had not made any call to the 100 number in the night nor she reported the matter to the police on that night. She has also deposed that she had been read over her statement outside the court by the police officials and she has deposed accordingly but states that she had seen the incident. She has denied the suggestion that she had not seen the accused Shanker while giving blows to the deceased Mukesh with the help of paya.
PW12 Sh. Akash Lal is the cousin brother of the deceased who has proved that on 26.08.2008 he identified the dead body of Mukesh Kumar S/o Shyam Lal who was his cousin brother, in the LNJP Hospital mortuary vide his statement Ex.PW12/A and after the postmortem examination they received the dead body vide Ex.PW2/B. He has further deposed that on 27.08.2008 Ravi @ Sonu who is brother of deceased Mukesh had handed over to the Investigating officer, the blood stained Pajama of Mukesh which was seized by the Investigating officer vide seizure memo Ex.PW3/A. He St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 17 of 84 has correctly identified the case property i.e. Pajama of blue colour which is Ex.P.1.
In his cross examination by the Ld. Defence counsel the witness has denied the suggestion that no Pajama was handed over to the Investigating officer and he was deposing falsely in this regard. Medical witnesses/ evidence:
PW9 Dr. Gopal Krishna has deposed that on 23.08.2008 one Mukesh S/o Shyam Lal aged 38 years was brought to hospital by the police in unconscious state who was examined by Dr. Amir Alam, JR under her supervision and as per MLC Ex.PW9/A. According to him, on local examination there was multiple laceration over the left forearm near elbow joint, abrasion and swelling over the right forearm, swelling and abrasion over left and right partial region, abrasion over right shoulder joint and lower back. He has proved that thereafter the patient was referred to SR (Medicine, Surgery and Ortho) where patient was examined by Dr. Rajesh in Ortho department, Dr. Sunil SR Surgery and Dr. Aparam, SR Surgery after which the patient was referred to Trauma Center for further management.
In his cross examination by Ld. Defence counsel the witness has deposed that he has no personal knowledge about the examination carried out by Dr. Rajesh, Dr. Sunil and Dr. Aparam. St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 18 of 84 PW11 Dr. Bhim Singh has deposed that on 26.08.2008 he was posted as a Professor, Department of Forensic, MAMC, New Delhi and on that day he conducted the postmortem examination on the dead body of Mukesh S/o Shyam Lal age 38 years with alleged history of found in unconscious state near Sulabh Shauchalaya on 23.08.2008 admitted in BJRM Hospital. According to him, the body was received in mortuary on 25.8.2008 at 4.30PM and on external examination following external injuries were found on the body:
1. Blueish black contusion 5cm x 3cm over the frontotemporal area.
2. Brownish scabbed abrasion 2cm x 1cm over the back of right elbow.
3. Brownish scabbed abrasion 1.5cm x 1cm back of left elbow.
4. Brownish scabbed abrasion 2cm x 1 cm front of right knee joint.
The witness has further deposed that on internal examination of head effusion of blood was present over the left frontotemporal area with fissured fracture on left temporal bone; brain showed biffuse subarachnoid chnoid hemorrhage present in both cerebral hemisphere with contusion necrosys of naped temporal lobe and left side of cerebellar present; brain was edemetus, weight about 1300 gms. He has proved that in his opinion death in this case St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 19 of 84 was due to cranio cerebral damage consequent upon head injury and all the injuries were antimortem and could be caused by blunt force impact. The witness has further proved that time since death in this case was about 25 hours (wrongly typed as 45 whereas the postmortem report shows that it is 25 hours and hence the same is liable to be read as such) and after the postmortem the blood in gauze pieces was handed over to the Investigating officer of the case. The witness has proved having prepared his detailed report which is Ex.PW11/A. He has further deposed that on 26.09.2008 one sealed pulanda sealed with the seal of VKB was produced before him for giving the subsequent opinion on the weapon of offence. He has testified that the parcel was opened and it found contain one wooden leg of cot, weight about 2Kg, mud stained, sphere shaped hole in the upper part, uneven surface, lower part was circular, upper part flat then he prepared the sketch of the same and after examining the weapon office, he was of the opinion that injury no. 1,2,3 and 4 described by him in the postmortem report on the body of the deceased could be caused by the weapon produced before him which opinion is Ex.PW11/B. According to him after examination, the weapon was sealed with the seal of department. He has correctly identified the case property i.e. wooden paya of cot as the same which he had examined earlier which is Ex. P.2.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 20 of 84 In his cross examination by Ld. Defence counsel the witness has denied the suggestion that he had given the opinion at the instance of the Investigating Officer.
Police/ official witnesses:
PW4 W/HC Rajrani has deposed that on 25.8.2008 he was posted as Head Constable at Police Station Jahangir Puri and was working as Duty Officer from 9:00 AM to 5:00 PM. According to her, at about 12:40 PM he received a rukka from SI Charan Singh on the basis of which she dictated the contents of the FIR to the Computer Operator and the present FIR was got registered after which a computer print out was handed over the same to SI ram Charan for further investigations. She has proved that she also recorded DD No. 29A in this regard in the roznamcha and made an endorsement on the rukka which is Ex.PW4/A. She has also proved the copy of the FIR which is Ex.PW4/B. She has not been cross examined by the Ld. Defence Counsel.
PW6 Ct. Biran Yadav has brought the complaint register for the year 2007 which remained in his custody being reader of SHO during the course of his usual duties. According to him, in the said register against entry No.1383 receipt of a complaint from one Mukesh S/o Shyam Lal, R/o EE2708, Jahangirpuri Delhi pertaining to an incident of attempt to murder has been mentioned St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 21 of 84 which complaint was received in the police station vide DD No. 54B on 24.09.2007 and as per the register the complaint was marked to HC Uttam. He has placed on record the copy of the said relevant entry of the register which is Ex.PW6/A. In his cross examination by Ld. Defence counsel the witness has deposed that he has no personal knowledge about the receipt of the said complaint and he is not aware as to what happened during the course of inquiry or investigation on the said complaint.
PW13 HC Jitender Kumar is the MHCM who has deposed that on 26.8.2008 SI Charan Singh had deposited one parcel sealed with the seal of SKK along with the sample seal pursuant to which he made entry at serial no.3603 in register No. 19. He has further deposed that on 27.8.2008 SI Charan Singh had deposited one pullanda sealed with the seal of CS containing pajama of the deceased after which he made entry at serial no. 3607 in register no. 19. According to the witness on 29.8.2008 Inspector Vipin Bhatia had deposited two pullandas sealed with the seal of VKB containing earth control and blood stained earth and he made entry at S.No. 3612 in Register No. 19. The witness has also testified that on 1.9.2008 Inspector Vipin Bhatia had deposited two pullandas sealed with the seal of VKB containing clothes of the accused and one leg of the cot on which he made entry in this regard at serial no.3616. He has further proved that on 21.9.2008 personal search of the accused St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 22 of 84 Raman @ Shera was deposited vide entry at serial no. 3649. He has testified that on 15.09.2008 on the instruction of Investigating officer five sealed pulandas were sent to FSL Rohini through Ct. Sanjay who deposited the receipt with him vide RC No.142/21/08. According to him on 25.09.2008 on the instruction of the Investigating officer pulanda containing Pava of the cot was sent to the Forensic Department, MAMC, Delhi for taking opinion and thereafter the pulanda was redeposited with the seal of Forensic Department, MAMC, New Delhi on 03.10.2008. The witness has placed on record the copies of the said entries which are Ex.PW13/A collectively; copy of register no.21 which is collectively Ex.PW13/B and the copy of receipt which is Ex.PW13/C. He has proved that the case property remained intact during his custody and he did not interfere with them nor he allowed anybody to interfere with them. The said witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
PW14 ASI Mahavir Singh has in his examination in chief by way of affidavit which is Ex.PW14/A deposed that on 29.8.2008 he was posted as Duty Officer at Police Station Jahangir Puri when at about 12:10 PM ASI Surender Singh from AATS informed by telephone that accused Shanker @ Shera had been arrested vide DD No. 26B dated 29.8.2008 under Section 41.1 (A) St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 23 of 84 Cr.P.C. at Police Station Shalimar Bagh and the accused had confessed having injured one Mukesh on the night of 22/23.8.2008.
he has proved having recorded the said information vide DD No. 28A copy of which is Ex.PW14/B. The said witness has not been cross examined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
PW15 Ct. Ravi V.R has in his examination in chief by way of affidavit deposed that on 26.8.2008 while he was posted at Police Station Jahangir Puri, he had gone to LNJP Hospital with SI Charan Singh for postmortem of the deceased Mukesh. According to him, after postmortem the dead body was handed over to the relatives vide Ex.PW2/B and he received one sealed envelope containing blood gauze of the deceased from the mortuary along with sample seal of SKK, which he handed over to SI Charan Singh who seized the same vide memo Ex.PW15/B. He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
PW16 Ct. Sanjay has in his examination in chief by way of affidavit Ex.PW16/A proved that on 25.9.2008 on the instructions of Inspector Vipin Kumar he had taken five sealed pullandas to the FSL vide RC No. 142/21/08 and after depositing the same at FSL he handed over the receipt to MHCM. He has proved that so long as the exhibits remained in his custody the same remained intact. The said St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 24 of 84 witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
PW17 Ct. Rajender has in his examination in chief by way of affidavit deposed that on 23.8.2008 he was posted as DD Writer at Police Station Jahangir Puri from 12:00 midnight to 8:00 AM. According to him, at about 6:51 AM a PCR call was received that "my brother was beaten and thrown near Jhuggi EEBlock, Jahangir Puri" which information he recorded vide DD No. 15B copy of which is Ex.PW17/B which DD was communicated to SI Charan Singh on telephone. He has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
PW18 HC Surender has in his examination in chief by way of affidavit which is Ex.PW18/A deposed that on 25.9.2008 on the instructions of Inspector Vipin Kumar he took one sealed cloth parcel sealed with the seal of VKB along with papers to Department of Forensic Medicine, MAMC (LNJP Hospital) and handed it over to the dealing clerk. According to him, he handed over the receipt RC to MHCM on 25.9.2008. He has proved that so long as the parcel was in his custody, the same remained intact. The said witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 25 of 84 PW19 SI Manohar Lal has in his examination in chief by way of affidavit Ex.PW19/A proved that on 21.10.2008 at the instance of Investigating Officer Inspector Vipin Kumar he inspected the scene of crime and took the measurements on the basis of which he prepared the scaled site plan which is Ex.PW19/B which he handed over to the Investigating Officer Inspector Vipin Kumar.
In his cross examination by Ld. Defence counsel the witness has deposed that at the time when he prepared the scaled site plan only the investigating officer Inspector Vipin Kumar was with him and no public person was present. He has denied the suggestion that he had prepared the site plan while sitting in his office or that he had never visited the site.
PW20 Sh. K.V. Singh, record clerk from Hindu Rao hospital has brought the summoned record pertaining to Bharti W/o Shankar who was admitted in Hindu Rao Hospital on 07.10.2007 and was discharged after delivery of the child on 09.10.2007 vide discharge slip which is Ex.PW20/A. The said witness has not been crossexamined by the Ld. Defence Counsel and his testimony has gone uncontroverted.
PW21 ASI Surender Singh has deposed that on 29.8.2008 he was posted as AATS/NW as ASI and on that day at about 7:15 AM he along with Ct. Dinesh Kumar and Ct. Satyawan St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 26 of 84 were on patrolling duty on Govt. CoEducation School Shalimar Village where he met secret informer who informed him that one boy by the name of Shankar, who had committed murder of Mukesh, was standing in front of Hanuman Mandir Shalimar Bagh. He has testified that he tried to stop 45 passerbyes and told them about the information and asked them to join the raiding party but they refused and went away without telling their name and address after which without wasting time he constituted a raiding party comprising of himself, Ct. Satyawan and HC Dinesh and went towards the Hanuman Mandir Shalimar Bagh where on the pointing out the secret informer they overpowered the accused Shankar. The witness has also deposed that the accused Shanker who was a resident of EE Block Jahangirpuri disclosed that his wife Madhu Bharti was having illicit relations with one person Mukesh due to which reason on the intervening night of 2223.8.2008 he remained in hiding in his Jhuggi and when Mukesh came to his jhuggi at night he picked up the paya of the Charpai and started beating Mukesh. PW21 has further deposed that Shanker had also disclosed that Mukesh started running but he followed him till the public toilet where Mukesh fell down and he inflicted number of blows with the said paya on the head of Mukesh and when he collapsed thinking that he was dead he came back in his Jhuggi and thereafter ran away from there. He has proved having recorded the disclosure statement of the accused Shankar which is St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 27 of 84 Ex.PW21/A and having prepared the Kalandra under Section 41.1 Cr.P.C. which is Ex.PW21/B. According to him, DD No. DD No. 36 B was got recorded regarding arrest of the PO which is Ex.PW21/C; the accused was arrested by him vide memo Ex.PW21/D and his personal search was conducted vide memo which is Ex.PW21/E after which he took the accused to the spot of the incident and on his pointing out prepared the memo Ex.PW21/F. He has testified that he took the accused to the court to produce him before the Ld. Illaqa Magistrate where Inspector Vipin Kumar came and formally arrested the accused in this case.
In his cross examination by Ld. Defence counsel the witness has deposed that they left the AATS office at about 8 AM and the departure entry was made by him but he does not remember its number. According to him, they left their office in a private vehicle make WagonR of white colour which was driven by Ct. Satyawan but he does not remember its number. He has testified that the secret informer gave him information separately. The witness has admitted that the place of receiving the secret information is a thickly populated area and that there are kacchi shops but he did not ask any shopkeeper to join the raiding party. According to the witness, he did not take any action against the public persons who refused to join the investigations and no action was taken against them. He has further St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 28 of 84 deposed that all writing work was done while sitting on a bench near the Mandir and all the memos were prepared by him in his own handwriting. The witness has denied the suggestion that the accused was apprehended from shop near Anand Vihar bus stand on 27.8.2008 or that no disclosure statement was made by the accused. He has also denied that accused was detained for two days in AATS office or that the accused has been falsely arrested in the present case or that or that he had deposing falsely.
PW22 HC Vikas Kumar has deposed that on 29.8.2008 he was posted as Head Constable at Police Station Jahangir Puri and on that day he was present along with Inspector Vipin Kumar in the investigations of the present case when he had gone to Rohini Court where the accused Shanker was produced before the court of Ld. MM Jahangir Puri since he had been apprehended by AATS officials wherein he had made a disclosure regarding his involvement in the present case. According to him, the accused was sent to judicial custody while he along with Inspector Vipin Kumar went to EE Block, House no. 2586, Jahangir Puri where Rajesh the brother of the deceased was residing after which Rajesh took them to the place i.e. EE Block, adjoining House no. 286061 where he had found his brother Mukesh in injured condition and pointed out the spot where Mukesh was found in an injured condition on 23.8.2008. The witness has further deposed that the Investigating Officer called a private St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 29 of 84 photographer and got the spot photographed. According to him, they also found the blood spots at the site and the IO lifted the earth control and a piece of concrete allegedly containing the blood stains of deceased Mukesh and put the same in two different containers and converted the same in to two different pullandas with the help of white cloth and sealed the same with the seal of VKB and thereafter seized vide memo Ex.PW2/C which seal after use was handed over to him. The witness has also deposed that Rajesh thereafter went to his house and got a copy of the complaint which he had already given to the local police and handed over the said copy to Investigating Officer who recorded the statement of the photographer and Rajesh at the spot. Thereafter the Investigating Officer went to the nearby Jhuggies and interrogated Manju and Meenu who were residing near the house of accused and their statements were recorded after which he returned to Police Station and deposited the pullandas in Malkhana. He has correctly identified the accused Shanker in the Court.
In his cross examination by Ld. Defence counsel the witness has deposed that he along with Investigating Officer reached the spot at about 3:30 PM on 29.8.2008 on motorcycle and remained there till 7:30/ 8:00 PM. According to him, he had returned the seal to the Investigating Officer on the same day after deposing the pullandas in the malkhana and his statement was recorded in the police station. He has denied the suggestion that he did not join the investigations or St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 30 of 84 that he had signed memo while sitting in the Police Station. He has also denied that no proceedings were conducted in his presence.
PW23 ASI Ranbir Singh has deposed that on 23.08.2008 he was posted as ASI in PCR Unit Delhi and was on night duty and in the intervening night of 22/23.08.2008 PCR van bearing no. Commander 34/PCR was stationed at Jahangir Puri. According to him, at about 6.50AM he received a call that one person was lying unconscious behind a jhuggi, EE Block, Jahangir Puri on which he reached the spot and found one person lying unconscious whose name he came to know as Mukesh from his brother who was also present at the spot after which he took him to B J R M Hospital and got admitted there.
In his cross examination by Ld. Defence Counsel the witness has deposed that he remained at the spot five to ten minutes and his statement was recorded at the PCR Van.
PW24 SI Randhir Singh has deposed that on 25.08.2008 he was posted as Duty Officer at Police Station Jahangir Puri from 03.50 PM to 12.00 PM (Night) and on that day Ct. Naresh, 764C, sent a telephonic messagefrom JPN Hospital at about 03.55 PM which he recorded vide DD No. 33A copy of which is Ex.PW24/A. This witness has not been crossexamined by the Ld. Defence Counsel.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 31 of 84 PW25 HC Kiran Pal has deposed that in the year 2008, he was posted as a Head Constable at Police Station Jahangir Puri and on 01.09.2008 he joined the investigations in this case along with Inspector Vipin Kumar Bhatia. He has proved that in his presence Investigating Officer interrogated the accused Shankar after which disclosure statement of accused Shankar was recorded by him on the direction of Investigating Officer. The witness has deposed that the accused Shankar had stated in his disclosure statement that his wife Babbu @ Bharti had illicit relations with deceased Mukesh, and that some quarrel had also taken place between Mukesh and him about one year back of this incident. He has proved the disclosure statement of the accused which is Ex.PW25/A and has deposed that the accused Shankar had pointed out the place of the incident vide pointing out Ex.PW25/B. According to him accused Shankar had got recovered one sky blue TShirt (having blood stains on the right side shoulder and its back and on the side of chest), one blue Jeans and wooden paya of the Cot, the pant and shirt were kept in one pullanda and the wooden paya was kept in another pullanda which were duly sealed with the seal of VKB and were seized by the IO vide seizure memo Ex.PW25/C and seal after use was handed over to him. He has deposed that after completion of the investigation, the case property was deposited with the MHC(M). He has also identified the case property i.e. wooden paya of the cot, having been got recovered at the St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 32 of 84 instance of the accused which is . Ex.P2, blood stained blue colored Tshirt and Jeans pant as the same having being recovered at the instance of accused which Tshirt is Ex.P3 and Pant is Ex.P4.
In his cross examination by Ld. Defence counsel the witness has deposed that on 01.09.2008, he joined the investigations at 04.15 PM and the disclosure statement of the accused Shankar was recorded at the police station and it took about 15 minutes to record the disclosure statement. According to him, they went on foot from the police station to the place of pointing out but he does not recollect who had made the departure entry and states that the Roznamcha Munshi must have made the entry in the register the number of which DD he also does not remember. He has also testified that they were in uniform and reached at the house of accused around at 05.00 PM. He has admitted that the house of accused is situated in a thickly populated area. According to him one lady was called from the neighbour to join the investigation but he does not recollect the name of the said lady. The witness has further deposed that Ex.P2, Ex.P3 & Ex.P4 were recovered from under the bed but he does not remember if the site plan of the place of said recovery was prepared by the Investigating Officer or not. He has deposed that the writing work was done while sitting on a bench lying outside the house of the accused and they remained at the spot till 06.00 PM. PW25 has St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 33 of 84 denied the suggestion that no disclosure statement was made by the accused or that nothing was recovered at the instance of accused.
PW26 HC Anoop Singh has deposed that on 21.09.2008, he was posted at Police Station Jahangir Puri and on that day he along with the Investigating Officer remained in the investigation of the present case during which they went to Jhuggi No. 143, EEBlock, Jahangir Puri where Raman @ Shera @ Gujjar was interrogated by the Investigating Officer and his disclosure statement was recorded which is Ex.PW26/A. He has proved that the accused Raman was arrested vide arrest memo Ex.PW26/B and was personally searched vide memo Ex.PW26/C after which the accused pointed out the place of incident vide memo Ex.PW26/D. The witness has further deposed that on the night intervening 2122th September, 2008, the accused Vijender was apprehended from Ghantaghar, Near Hanuman Akhara at the instance of accused Raman and the disclosure statement of the accused was recorded which is Ex.PW26/E. He has proved that the accused Bijender was arrested vide arrest memo Ex.PW26/F and thereafter accused had pointed out the place of incident vide memo Ex.PW26/G. He has correctly identified both the accused Raman and Vijender in the Court.
In his cross examination by the Ld. Defence Counsel the witness has deposed that on 21.09.2008, they left the police station at St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 34 of 84 about 08.00 PM or 08.15 PM on foot and the departure entry was made by the Investigating Officer but he does not remember the DD Number. According to him, they reached the house of the accused Raman within fifteen minutes and the writing work was done while sitting outside the Jhuggi on a bench or a stool. He has also deposed that they remained at the house of accused Raman for about one hour and after completion of the investigation they came back at the Police station. He has admitted that the Jhuggi of accused was surrounded by other Jhuggies but has stated that no one from the neighbour came forward to join the investigations. He has denied the suggestion that accused Raman was lifted from the Jhuggi and falsely implicated in this case. According to him, they left police station for the search of accused Bijender at about 11.00 PM or 11.15 PM on the same night. He has denied the suggestion that accused Bijender was lifted from his house and has been falsely implicated in this case or that no pointing out of memo was prepared at the instance of accused Bijender.
PW27 SI Charan Singh has deposed that on the intervening night of 22/23.8.2008 he was posted as SI at Police Station Jahangir Puri and was on emergency duty with Ct. Anand Prakash then at about 6:51 AM he received DD No.15B which is Ex.PW17/B after which he along with Ct. Anand Prakash reached EE Block near Sulabh Shauchalya where he came to know that the injured St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 35 of 84 was removed to Babu Jagjeevan Ram Memorial Hospital. According to the witness, thereafter he along with Ct. Anand Prakash reached Babu Jagjeevan Ram Memorial hospital where the injured Mukesh was found admitted on which he collected his MLC and the patient was unconscious and was unfit for his statement and the doctor has referred the patient to LNJP Trauma Center. He has further deposed that he kept the DD No.15B pending and contacted the brother of Mukesh namely Rajesh on 24.8.2008 about the condition of Mukesh who informed him that injured Mukesh was still serious and unfit, therefore, he prepared rukka Ex.PW27/A which he produced before the then Duty Officer HC Raj Rani who recorded the FIR copy of which is Ex.PW4/B. The witness has further deposed that on 25.8.2008 he went to the house of injured Mukesh at House No. 2586, EE Jahangir Puri where Rajesh the brother of injured met him and informed that he had talked with his mother, Mukesh and another relative Bhopal upto 11:30 PM and that injured Mukesh had gone to take Biri towards Jhuggies. Rajesh further told him (SI Charan Singh) that the injured Mukesh was having illicit relations with Babbu W/o Shankar (the accused in the present case) and Shankar had beaten Mukesh as a result of which Mukesh sustained injuries on which he recorded the statement of Rajesh under Section 161 Cr.P.C. According to SI Charan Singh on 25.8.2008 he prepared the site plan Ex.PW27/B at the instance of Rajesh and came back in the police St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 36 of 84 station. He has deposed that he received DD No.33A Ex.PW24/A from LNJP Hospital by way of which Duty Constable Naresh informed that the injured Mukesh had expired after which on 26.8.2008 he along with Ct. Ravi went to LNJP Hospital where he recorded the statement of two persons namely Rajesh and Akash regarding identification of the dead body which statements are Ex.PW2/A & Ex.PW12/A after which he got the postmortem on the dead body conducted vide postmortem report Ex.PW11/A. The witness has further deposed that after postmortem the dead body was handed over to the relatives vide receipt Ex.PW2/B and the doctor kept the postmortem report for giving the cause of death. According to him, the doctor handed over the sealed parcel containing blood gauze duly sealed with the seal of SKK and sample seal to Ct. Ravi who handed over the same to him and he took the same into possession vide seizure memo Ex.PW15/B after which they came back to the police station where he recorded the statement of Ct. Ravi U/s 161 Cr. P. C and since the injured has expired therefore he added Section 304 IPC in the present case. The witness has testified that on 27.8.2008 he went to the house of deceased Mukesh where he recorded the statements of witnesses namely Sanno and Gopal and another brother of deceased namely Ravi had given one blood stained payjama stated to be worn by the deceased at the time of incident to St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 37 of 84 him on which he sealed the same with the seal of CS and took the same into possession vide memo Ex.PW3/A which seal he handed over to Akash Lal after use. He has proved having recorded the statements of Ravi Kumar and Akash Lal under Section 161 Cr.P.C. The witness has also deposed that thereafter he was transferred from the police station Jahangirpuri and therefore further investigation of this case was handed over some other Investigating officer. He has correctly identified the case property i.e. blood stained pajama as the same which was produced by Ravi belonging to the deceased which pajama is Ex.P1.
In his cross examination by Ld. Defence counsel the witness has deposed that he had reached the spot at about 6:55 AM after receiving the DD No.15B on motorcycle and immediately he left for Babu Jagjeevan Ram Memorial hospital. According to him, he prepared the rukka in the police station and handed over the same to the Duty Officer around 12:40 PM. He has further deposed that he went to the house of Mukesh alone on his motorcycle on 25.8.2008 at about 1:15 PM and recorded the statement of Rajesh only on 25.8.2008. He has testified that he remained at the house of Mukesh for about twenty to twenty five minutes. The witness has also deposed that on 26.8.2008 he along with Ct. Ravi reached LNJP Hospital at about 10:00 AM where he remained till 3:00 AM and on 27.8.2008 he went alone to the house of Shano and Gopal at about St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 38 of 84 11:00 AM where he there upto 1:30 PM and recorded their statements. According to him, Akash Lal returned his seal in the evening on 27.8.2008 in the police station but no memo of handing over and taking over of the seal was prepared by him. He has denied the suggestion that he wrongly recorded the statement of witnesses or that all the proceedings were conducted while sitting in the police station.
PW28 Inspector Vipin Kumar is the subsequent Investigating Officer who has deposed that on 28.8.2008 he was working as Inspector investigation at Police Station Jahangirpuri and on that day, further investigations of this case was handed over to him on which he received the case file from MHC(R) on 29.8.2008 and perused the same. According to him, he visited the spot and the place of incident was photographed through Anil Kumar a private photographer which photographs are Ex.PW5/A1 to Ex.PW5/A4. He has proved having lifted the blood stained floor and the pieces without blood stains and kept the same into separate plastic containers and sealed the same with the seal of VKB which were taken into possession vide memo Ex.PW2/C. The witness has testified that on the same day ASI Surender Singh lodged a DD entry regarding apprehension of accused Shanker and regarding his involvement in the present case. Witness has further deposed that the accused Shanker was produced before the Link Magistrate and was sent to judicial St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 39 of 84 custody for 1.9.2008 to be produced before the concerned court. He has proved having collected the copy of Kalandra which is Ex.PW21/B prepared by ASI Surender Singh by which accused Shanker was produced before Ld. link MM. According to PW28 on 1.9.2008, the accused Shanker was produced before Ld. MM when he was formally arrested vide memo Ex.PW28/A. The witness has further deposed that he obtained the police remand for one day of accused Shanker when he interrogated him (accused Shanker) thoroughly and his disclosure statement was recorded which is Ex.PW25/A, pursuant to which the accused took him and HC Kiran Pal at Jhuggi no. 150, EE Block, Jahangirpuri where he had beaten the deceased with a 'paya' of cot and also at house no. EE 2860 Jahangirpuri, where he threw the deceased after beating him. He has proved having prepared the pointing out memo vide Ex.PW25/B. PW28 has further deposed that the accused Shanker got recovered one sky blue, Tshirt, one blue jeans pant and one paya of the cot on which he prepared the pullanda of the clothes and another parcel of paya and sealed the same with the same seal which he took into possession vide seizure memo Ex.PW25/C. The witness has also proved having collected the postmortem report of the deceased vide memo Ex.PW11/A and having deposited the case property in the police station and recorded the statements of witnesses. He has testified that St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 40 of 84 on 12.9.2008 Babbu Bharti wife of the accused Shanker met him after which he examined her and recorded her statement under Section 161 Cr.PC. According to the witness, on 15.9.2008, the statement of Babbu Bharti was got recorded under Section 164 Cr.P.C. by Ld. MM vide Ex.PW28/C (wrongly written as PW28/C since the statement of Babbu Bharti had already been exhibited as Ex.PW8/A and hence the same should be read as such) in which she has alleged the involvement of coaccused Vijender @ Kuchi and Raman @ Shera @ Gujjar, the cousin of accused Shanker. The witness has also deposed that he sent the exhibits of this case to FSL Rohini through Ct. Sanjay vide RC no. 142/21/08 dated 15.9.2008. He has proved having seized the complaint Ex.PW2/D given by Mukesh (deceased) in the police station against accused Shanker vide DD No. 54 B dated 24.9.2007 and also having collected the discharged slip of Babbu Bharti from Hindu Rao Hospital vide discharged slip No. 32132 dated 7.10.2007 which is Ex.PW20/A. According to the witness, he moved an application for seeking opinion on the postmortem report regarding weapon of offence to which Dr. Bhim Singh, Assistant Professor Forensic Medicine MAM, New Delhi has given his report already Ex.PW11/B. The witness PW28 has proved having collected the PCR form vide Ex.PW28/B in which he has opined that injury no. 1 to 4 on the body of the deceased could be caused by the weapon St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 41 of 84 examined. According to him, the witness has deposed that on 21.9.2008 he arrested the coaccused Raman Shera @ Gujjar from his house vide memo Ex.PW26/B and personally searched vide memo Ex.PW26/C and interrogated and whatever he had stated was recorded separately vide Ex.PW6/A. The witness has also deposed that the accused also took the police party at Jhuggi No.150, EE Block Jahangirpuri and house no. 286061 EE Block Jahangirpuri as the places where he along with his coaccused Shanker and Vijender had beaten the deceased Mukesh and threw him and a memo to this effect was prepared which is Ex.PW26/D. According to him, on the same night, the coaccused Vijender @ Kuchi was also apprehended on the pointing out of Raman Shera from the house of his sister Seetu from Hanuman Akhara, Roop Nagar, Delhi and arrested vide memo Ex.PW26/A and personally search vide memo Ex.PW26/G after which the accused was thoroughly interrogated and his disclosure statement was recorded vide Ex.PW26/E. The witness has testified that the accused Vijender led the police party aforesaid two places and a pointing out memo to this effect was prepared which is Ex.PW26/G. PW28 has also deposed that on 21.10.2008 he called SI Manohar Lal to the spot who lifted the rough notes and measurement at his instance and thereafter SI Manohar Lal prepared scaled site plan vide Ex.PW19/B which he received later on. He has proved having St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 42 of 84 collected the FSL result Ex.PW28/D (running into two pages) vide forwarding letter Ex.PW28/E and having prepared the charge sheet after necessary investigation. He has correctly identified all the accused in the Court as well as the case property i.e. blood soaked cemented floor which is Ex.P5, earth control which is Ex.P6, T shirt which is Ex.P3; pant which is Ex.P4, wooden paya of the cot as the same having been got recovered at the instance of the accused which is Ex.P2.
In his cross examination by Ld. Defence counsel the witness has deposed that on 29.8.2008 he reached the spot at about 3:30 PM and had taken about half an hour in lifting the exhibits from the spot. According to him, he recorded the statements of HC Dinesh Kumar and ASI Surender Singh in Rohini Court premises on 19.8.2008. The witness has further deposed that the accused Shanker was interrogated in the Police Station where his disclosure statement was also recorded. He has admitted that the police station is surrounded by residential premises and shops but no public persons were called at the time of interrogation of the accused Shankar and recording his disclosure statement. PW28 has further deposed that on 1.9.2008 he went to Jhuggi no. 150, EE Block, Jahangir Puri along with accused and HC Kiran Pal on foot and reached there at about 5:00 PM and the case property i.e. paya, Tshirt and pant were St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 43 of 84 recovered from under the bed lying in the Jhuggi of the accused Shanker. He has admitted that the Jhuggi of the accused is situated in a thickly populated area and has stated that he called nearby public persons to join the investigations but nobody turned up. However, he does not remember the names and address of the public persons to whom he had asked to join the investigations and states that no site plan was prepared at the place of recovery of the articles. According to him, the jhuggi of the accused was found open and no lock was there on the door nor any person was there in the Jhuggi. He has also deposed that all the writing work was done by him outside the jhuggi of accused Shanker while sitting on a bench and he remained there upto 6:00 PM. According to the witness he recorded the statement of HC Kiran Pal in the police station and after completing the proceedings he locked the jhuggi and handed over the key of jhuggi to the sister of accused Shanker pursuant to the directions of the Hon'ble Court but he does not remember the exact date. The witness PW28 has also deposed that on 12.9.2008 wife of accused Shanker namely Babbu Bharti came to police station around 12 noon to 1:00 PM along with her minor son and remained in the police station till 2:30 PM. He has denied the suggestion that he himself recorded the statement of Smt. Babbu Bharti to strengthen the case or that he tutored Smt. Babbu Bharti to depose before the Ld. MM against the accused persons. He has also denied that all the documents have been St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 44 of 84 fabricated later on to prove the case of prosecution or that the doctor had given the opinion on the weapon of offence at his instance. The witness has further deposed that he arrested the accused Raman on 21.9.2008 and accused Vijender @ Kuchi on 22.9.2008. The witness has denied the suggestion that prosecution witnesses Meenu and Manju are illiterate or that no disclosure statement was made by the accused persons. He has also denied that nothing was recovered at the instance of accused Shanker or that he did not conduct the fair investigation in this case.
Statement of the accused/ defence evidence:
After completion of prosecution evidence the statement of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. The accused Shanker has stated that he is innocent and has been falsely implicated in this case by the police. According to him, he was arrested by AATS team from in front of Anand Vihar Bus Stop near Hanuman Mandir and later on he was implicated in this case. He has stated that he was mercilessly beaten by the police officials who forced him to sign certain blank papers. The accused has denied having made any disclosure statement and having got recovered his clothes and paya of the cot. According to the accused, his wife Babbu Bharti as forced to make a statement before the Ld. MM at the St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 45 of 84 instance of police officials.
The accused Raman Shera has stated that he is innocent and has been falsely implicated. According to him on the date of incident he was on night duty in Delhi Metro. He has denied having made any disclosure statement to the police.
Similarly the accused Vijender @ Kucchi has stated that he is innocent and has been falsely implicated in the present case. According to him, he was not arrested on the pointing out of co accused Raman and in fact he was lifted from his sister's house for interrogation but later on he has been falsely implicated in this case. He has denied having made any disclosure statement or having led the police party to anywhere.
However, the accused have preferred not to led any evidence in their defence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. Public Prosecutor for the State and the Ld. Defence Counsel. I have also gone through the written synopsis/ memorandum of arguments filed on behalf of the parties and the evidence on record. First I propose to deal with all the allegations/ averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 46 of 84 Sr. Name of the Details of deposition No. witness PUBLIC WITNESSES
1. Smt. Shanno Devi She is the mother of the deceased who has deposed (PW1) on the following aspects:
1. That Mukesh (deceased) was unmarried and was a driver by profession.
2. That Babbu is the wife of accused Shankar and about one and half year prior to the incident her son was maintaining illicit relations with Babbu due to which reason accused Shankar and his son Mukesh had quarreled on several occasions but they had not reported the same to the police.
3. That she had advised Mukesh several times to stop this liaison but he did not give any heed to her advice and kept maintaining the relations with wife of accused Shanker and often asked her for money for giving to Babbu.
4. That on 22.08.2008 she was present in her house and her sons Rajesh, Mukesh and her nephew Gopal were sitting outside and were gossiping when at about 11:30 PM Mukesh went to get a biri.
5. That on 23.08.2008 she came to know that Mukesh was lying in an unconscious condition near the Sulab Shauchalya and was taken to the hospital by her other son Rajesh.
6. That she had waited for her son throughout the night but he did not return.
7. That her son expired on 25.08.2008 during treatment due to the injuries received on the night of 22.08.2008 and she suspected that accused Shankar was responsible for the death of her son.
She has proved her statement given to the police which is Ex.PW1/A where she had put her thumb impression and has correctly identified the accused Shanker in the Court.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 47 of 84
2. Rajesh Kumar He is the brother of the deceased who has deposed on (PW2) the following lines:
1. That deceased Mukesh was his elder brother and was having illicit relations with Babbu, wife of accused Shankar who was residing in EE block, Jhuggi No. 150, Jahangirpuri, Delhi.
2. That he was having knowledge of the illicit relations of this brother for about one and a half year prior to the incident and made efforts to make his brother understand that his actions were not good for him as Babbu was already married and accused Shanker was a criminal of the area.
3. That some quarrel had also taken place between his brother and accused Shanker on this ground and in the intervening night of 22/23.08.08 at about 11:30 PM his brother Mukesh told him that he was going to purchase "bidi" and went towards jhuggi of EE block.
4. That they waited for his brother but he did not turn up and thereafter he went to sleep and in the morning when he went for a morning walk he saw a crowd near Shulab Sachochalya and when he went inside the crowd he found that his brother was lying in an injured and in an unconscious condition.
5. That he informed to PCR at 100 number after which PCR van came there and took his brother to BJRM hospital where his brother was referred to LNJP hospital.
6. On 25.08.2008 his brother expired in the hospital after which postmortem examination of his brother was got conducted and he identified the dead body of his brother on 26.08.2008 in mortuary vide statement Ex.PW2/A.
7. That he received the dead body of the deceased vide receipt Ex.PW2/B.
8. That they suspected accused Shankar as his brother was having illicit relations with the wife of Shanker and since his brother was not having St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 48 of 84 any enmity with anyone else.
9. That once the accused had quarreled at their house and his brother gave the application in the police station against the accused Shankar.
10. That on 29.08.08 he remained in the investigations of this case alongwith investigating officer/ Inspector Vipin Kumar Bhatia when the Investigating Officer lifted blood stained earth from the spot where dead body of his brother was found which were put up into a pullanda and sealed with the sealed of VKB and seized vide memo Ex.PW2/C.
11. That he handed over to the investigating officer a copy of the complaint which was given by his brother against the accused at police station Jahangirpuri which was registered vide DD No. 54B dated 24.09.07 which is Ex.PW2/D.
3. Ravi Kumar He is the younger brother of deceased who has (PW3) deposed as under:
1. That on 23.08.08 his elder brother Mukesh was got admitted by his brother Rajesh in BJRM hospital in injured and unconscious condition who was later on referred to LNJP hospital and he also reached in the hospital later on.
2. That his brother was wearing a pajama of blue color when he was admitted in the hospital and it was having some blood stained.
3. That on 25.08.08 his brother was expired and doctor had asked him to remove the pajama from his brother which pajama he had kept at their house.
4. That on 27.08.208 he handed over the pajama to police which was put up into pullanda and sealed with the seal of CS and seized vide memo Ex.PW3/A. He has correctly identified the pajama belonging to his brother which is Ex.P1.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 49 of 84
4. Anil Sharma He is a private photographer who has proved having (PW5) taken the photographs at the spot with his digital camera which are Ex.PW5/A1 to Ex.PW5/A4 which he handed over to investigating officer Insp. Vipin Bhatia.
5. Smt. Manju (PW7) She is the neighbour of the accused and has deposed on the following aspects:
1. That all the three accused persons are residing in EE block Jhuggies and Bharti @ Babbu is the wife of Shankar.
2. That deceased Mukesh used to visit the jhuggi of accused Shankar to meet his wife in the absence of accused Shankar but she is not aware as to what kind of relations were there between Mukesh and the wife of accused Shanker.
3. That about two years ago when she was washing his face suddenly some hue and cry was raised in the jhuggies and she saw that behind the toilet Mukesh was lying unconscious.
4. That some family members of Mukesh rang up the police at number 100 and a large number of persons from the jhuggies were gathered over there but she is not aware as to under what circumstances Mukesh was lying in injured and unconscious condition over there.
5. That later on the persons in the gali and the wife of accused Shanker both were stating that Shanker had given beating to Mukesh but she was not any eye witness to the said incident
6. That accused Shanker had many times gone to jail and that accused Shankar used to quarrel with neighbourers and threatened them and once he had quarreled with her husband.
7. That relations between Bharti @ Babbu, the wife of accused and accused were not good and on the date of incident i.e. 23.08.08 Bharti @ Babbu told her that Shanker had given beatings to Mukesh with paya of cot (charpai) because he St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 50 of 84 had come to meet Babbu in the night at around 11:30/12PM.
8. That the toilet is situated near the house of accused Shankar.
She has also correctly identified all the accused in the Court.
6. Babbu Bharti She is the wife of the accused and has turned totally (PW8) hostile. She has admitted having made a statement before the Ld. MM under Section 164 Cr.P.C. which is Ex.PW8/A but according to her, she had made the said statement under the pressure of police wherein she has stated
1. That her husband was having a criminal background and remained in jail.
2. That she had an affair with Mukesh and even bore a female child from him who expired.
3. That on the intervening night of 22/23 August 2008, she was standing in front of her Jhuggi at about 11:30 pm/ 12:00 night and Mukesh was also standing in a kirana shop which is just in front of their jhuggi.
4. That Mukesh was giving some indication to her and her husband who was sitting inside the jhuggi came out all of sudden.
5. That her husband ran and caught hold Mukesh and dragged him to their jhuggi and took him to the back side of the jhuggi where he started beating Mukesh with legs, fists and with one paya of bed.
6. That she cried and went to call her jeth Gujjar @ Raman and Dever Kuchi @ Vijender so that they could stop Shanker from beating Mukesh as her husband was in the habit of taking drugs (smack) and was under the influence of liquor and had lost senses.
7. That her Dever and Jeth did not stop Mukesh rather they both also started beating Mukesh. Her jeth Gujjar caught her mouth so that she should St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 51 of 84 not cry again.
8. That all of three kept on beating Mukesh and he was almost dead and injured from various spots seriously.
9. That thereafter all of the three dragged Mukesh and threw him near the toilets which is in the gali itself.
7. Smt. Meenu She is the star witness of the prosecution being an eye (PW10) witness. She has deposed on the following lines:
1. That she knew accused Shanker as he reside in the neighbourhood in the adjoining jhuggi along with his wife Smt. Babbu Bharti.
2. That the relations between Shanker and his wife were not cordial and Shanker used to quarrel with his wife.
3. That she also knew Mukesh who used to visit the jhuggi of Bharti @ Babbu and on night of 22/23.08.2008 she was sleeping in her jhuggi along with her children when she heard noise on which she came out when he saw that Shanker was quarreling with Mukesh.
4. That she saw accused Shanker giving beating to Mukesh with 'Pava' of Charpai (leg of cot) on the floor near the Nala.
5. That when Shanker saw her then he threatened her not to disclose anything to anybody after which she went inside the jhuggi.
6. That this incident was around 1.30 AM/ 2.00 AM and thereafter she went inside her jjhuggi and had gone to sleep.
7. That on next day in the morning she came to know that Mukesh has been taken to the hospital and later on he was expired.
8. Akash Lal (PW12) He is the cousin brother of the deceased who has proved the following apsects:
1. That on 26.08.2008 he identified the dead body of Mukesh Kumar S/o Shyam Lal who was his cousin brother, in the LNJP Hospital mortuary St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 52 of 84 vide his statement Ex.PW12/A and after the postmortem examination they received the dead body vide Ex.PW2/B.
2. That on 27.08.2008 Ravi @ Sonu who is brother of deceased Mukesh had handed over to the Investigating officer, the blood stained Pajama of Mukesh which was seized by the Investigating officer vide seizure memo Ex.PW3/A. He has correctly identified the case property i.e. Pajama of blue colour which is Ex.P.1.
MEDICAL EVIDENCE/ WITNESSES
9. Dr. Gopal Krishna This witness has deposed that on 23.08.2008 one (PW9) Mukesh S/o Shyam Lal aged 38 years was brought to hospital by the police in unconscious state who was examined by Dr. Amir Alam, JR under her supervision and as per MLC Ex.PW9/A. He has proved that on local examination there was multiple laceration over the left forearm near elbow joint, abrasion and swelling over the right forearm, swelling and abrasion over left and right partial region, abrasion over right shoulder joint and lower back.
10. Dr. Bhim Singh This witness has proved having conducted the (PW11) postmortem examination on the dead body of Mukesh S/o Shyam Lal on 26.08.2008 vide Ex.PW11/A. He has also proved that in his opinion death in this case was due to cranio cerebral damage consequent upon head injury and all the injuries were antimortem and could be caused by blunt force impact. The witness has further proved that time since death in this case was about 25 hours.
He has further proved that on 26.09.2008 one sealed pulanda sealed with the seal of VKB was produced before him for giving the subsequent opinion on the weapon of offence and on opening the same, it found contain one wooden leg of cot, weight about 2Kg, mud stained, sphere shaped hole in the upper part, St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 53 of 84 uneven surface, lower part was circular, upper part flat then he prepared the sketch of the same and after examining the weapon office, he was of the opinion that injury no. 1,2,3 and 4 described by him in the postmortem report on the body of the deceased could be caused by the weapon produced before him which opinion is Ex.PW11/B. He has correctly identified the case property i.e. wooden paya of cot as the same which he had examined earlier which is Ex. P.2.
POLICE/ OFFICIAL WITNESSES
11. W/HC Raj Rani She is a formal witness being the Duty Officer who (PW4) has proved her endorsement on the rukka which is Ex.PW4/A and the copy of FIR which is Ex.PW4/B.
12. Ct. Biran Yadav This witness has proved the DD No. 54B dated (PW6) 24.9.2007 regarding a complaint from one Mukesh S/o Shyam Lal, R/o EE2708, Jahangirpuri Delhi pertaining to an incident of attempt to murder, copy of which is Ex.PW6/A.
13. HC Jitender He is a formal witness who has placed on record the Kumar (PW13) copies of the relevant entries of register no. 19 which are Ex.PW13/A collectively; copy of register no.21 which are collectively Ex.PW13/B and the copy of receipt which is Ex.PW13/C.
14. ASI Mahavir He is also a formal witness who has proved the DD Singh (PW14) No. 28A regarding arrest of accused Shankar under Section 41.1 (A) Cr.P.C. at Police Station Shalimar Bagh and the accused had confessed having injured one Mukesh on the night of 22/23.8.2008, copy of which is Ex.PW14/B.
15. Ct. Ravi V.R. He has proved that after postmortem the dead body (PW15) was handed over to the relatives vide Ex.PW2/B and he received one sealed envelope containing blood gauze of the deceased from the mortuary along with sample seal of SKK, which he handed over to SI Charan Singh who seized it vide memo Ex.PW15/B. St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 54 of 84
16. Ct. Sanjay (PW16) This witness has proved that on 25.9.2008 on the instructions of Inspector Vipin Kumar he had taken five sealed pullandas to the FSL vide RC No. 142/21/08 and after depositing the same at FSL he handed over the receipt to MHCM. He has also proved that so long as the exhibits remained in his custody the same remained intact.
17. Ct. Rajender This witness has proved the DD No.15B copy of (PW17) which is Ex.PW17/B which DD was communicated to SI Charan Singh on telephone.
18. HC Surender He has proved that on 25.9.2008 on the instructions (PW8) of Inspector Vipin Kumar he took one sealed cloth parcel sealed with the seal of VKB along with papers to Department of Forensic Medicine, MAMC (LNJP Hospital) and handed it over to the dealing clerk. According to him, he handed over the receipt RC to MHCM on 25.9.2008. He has proved that so long as the parcel was in his custody, the same remained intact.
19. SI Manohar Lal This witness has proved having prepared the scaled (PW19) site plan which is Ex.PW19/B which he handed over to the Investigating Officer Inspector Vipin Kumar.
20. Sh. K.V. Singh He is the record clerk from Hindu Rao hospital and (PW20) has placed on record the discharge slip which is Ex.PW20/A.
21. ASI Surender He has proved having arrested the accused Shanker Singh (PW21) under Section 41.1 Cr.P.C. and has proved the following documents:
Ex.PW21/A Disclosure statement of the accused Ex.PW21/B Kalandra under Section 41.1. Cr.P.C.
Ex.PW21/C DD No. 36B
Ex.PW21/D Arrest memo of the accused
Ex.PW21/E Personal search memo of accused
Ex.PW21/F Pointing out memo
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 55 of 84
22. HC Vikas Kumar This witness has joined investigations with Inspector (PW22) Vipin Kumar Bhatia. He has proved having gone to the house of accused and the spot of incident where photographs were taken and the IO lifted the various samples. He has also proved that the IO also met the neighbours Manju and Meenu and recorded their statements.
23. ASI Ranbir Singh He is a formal witness being posed at PCR on (PW23) 23.08.2008. He has proved that at about 6.50AM he received a call that one person was lying unconscious behind a jhuggi, EE Block, Jahangir Puri on which he reached the spot and found one person lying unconscious whose name he came to know as Mukesh from his brother who was also present at the spot after which he took him to BJRM Hospital and got the injured admitted there.
24. SI Randhir Singh He is a formal witness being Duty Officer who has (PW24) proved that on 25.08.2008 Ct. Naresh sent a telephonic message from JPN Hospital at about 03.55 PM which he recorded vide DD No. 33A copy of which is Ex.PW24/A.
25. HC Kiran Pal This witness has joined the investigations with the IO (PW25) on 1.9.2008 and has proved the following documents:
Ex.PW25/A Disclosure statement of accused
Shanker
Ex.PW25/B Pointing out memo
Ex.PW25/C Seizure memo of one sky blue TShirt
(having blood stains on the right side
shoulder and its back and on the side
of chest), one blue Jeans and wooden
paya of the Cot,
26. HC Anoop Singh This witness has also joined investigations with the (PW26) Investigating Officer on 21.9.2008 when the accused Raman Shera and Vijender @ Kuchhi were arrested.
He has proved the following documents:
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 56 of 84 Ex.PW26/A Disclosure statement of accused Raman Shera Ex.PW26/B Arrest memo of accused Raman Shera Ex.PW26/C Personal search memo of accused Raman Shera Ex.PW26/D Pointing out memo by accused Raman Shera Ex.PW26/E Disclosure statement of accused Vijender Ex.PW26/F Arrest memo of accused Vijender Ex.PW26/G Pointing out memo by accused Vijender
27. SI Charan Singh He is the initial Investigating Officer who had gone to (PW27) the spot of incident. Apart from the documents proved by the above witness, he has proved the following documents:
Ex.PW27/A Rukka
Ex.PW27/B Site plan
28. Inspector Vipin He is the subsequent Investigating Officer who has
Bhatia (PW28) proved the various investigation proceedings
conducted by him and also the following documents which were prepared by him:
Ex.PW28/A Formal arrest of accused Shankar
Ex.PW28/B Memo of pointing out by accused
Shankar
Ex.PW28/D FSL Result
Ex.PW28/E Forwarding letter
Coming now to the microscopic evaluation of evidence against the accused persons. My findings are as under:
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 57 of 84 Identity of the accused:
In so far as the identity of the accused is concerned there is no dispute because they have been previously known to the deceased being residing in the same area and have been correctly identified by the mother of the deceased namely Shanno Devi (PW1) and brother of the decease namely Rajesh Kumar (PW2). Further, the accused Shanker has been correctly identified by Babbu Bharti the wife of accused Shanker who states that Shanker is still her husband whereas the accused Raman Shera and Vijender @ Kuchchi are his relatives. He has also been identified by PW7 Smt. Manju and PW10 Smt. Meenu who are residents of the same area and neighbours of the accused Shanker. In fact, PW10 Smt. Meenu has identified him as the person who was quarreling with the deceased and had inflicted the paya blows on the deceased. Therefore I hold that the identity of the accused stands established.
Motive:
The case of the prosecution is that the accused Shanker is a Bad Character of the area and was involved in a number of cases due to which reason he often remained in jail for long period and his wife Babbu Bharti had developed illicit relations with one Mukesh (deceased) a resident of the same area which was not liked and objected to by Shanker. Therefore, there was a quarrel between Shanker and Mukesh and accused Shanker had beaten Mukesh to St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 58 of 84 death with the help of paya of the charpai (leg of a cot) on the floor near nala. Before proceeding to analyse the evidence on record, I may observe that it is a settled law that the motive has to be gathered from the surrounding circumstances and such evident should form one of the links to the chain of circumstantial evidence. The proof of motive only strengthens 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.
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 St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 59 of 84 hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence.
Applying the settled principles of law to the facts of the present case, I may observe that mother of the deceased namely Shanno Devi (PW1) and his brother Rajesh Kumar (PW2) have both supported the case of the prosecution and have stated that deceased Mukesh aged about 38 years who was a driver by profession and unmarried, was maintaining illicit relations with Babbu Bharti the wife of the accused Shanker due to which reason Shanker and Mukesh often quarreled on various occasions but the same was never reported to the police. The relevant portion of the testimony of PW1 Shanno Devi is as under:
.... About one and half year prior to his death, my son was maintaining illicit relations with above said Babbu. On account of this reason, accused Shanker and my son Mukesh had quarreled on several occasions but we had not reported the same to the police. I had advised Mukesh several times to stop this liaison but he did not pay any heed to my advice and kept maintaining the relations with wife of accused Shanker. He often ask me for money for giving to Babbu.....
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 60 of 84 Rajesh Kumar (PW2) the brother of the deceased has also in his testimony before this Court corroborated the testimony of his mother on this aspect. The relevant portion of his testimony is reproduced as under:
......Deceased Mukesh was my elder brother and he was having illicit relations with Babbu, wife of accused Shanker present in the court today, who was residing in EE Block, Jhuggi no. 150, Jahangir Puri, Delhi. I was having knowledge of his illicit relations for about 1½ years prior to this incident. I make efforts to make my brother understand that this activity is not good for him as Babbu is already married and accused Shanker is a criminal of the area. Some quarrel has also taken place between my brother and accused shanker on this ground....
Further, Smt. Manju W/o Sh. Shami (PW7) a resident of the same area has similarly deposed that the wife of accused Shanker that is Babbu Bharti and the deceased Mukesh were on visiting terms and Mukesh used to meet Babbu Bharti in the absence of Shanker. In her crossexamination by the Ld. Addl. PP for the State she has stated St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 61 of 84 that the relations between the accused Shanker and Babbu Bharti were not good and that Shanker had gone to jail many times . Smt. Meenu (PW10) another resident of the same area has very specifically testified that the relations between accused Shanker and his wife Babbu Bharti were not cordial and Shanker often quarreled with her.
She has admitted that there were illicit relations between Babbu and Mukesh though she has admitted in her crossexamination that she has never seen them in compromising position but she had seen the deceased Mukesh while coming and going to the Jhuggi of Babbu Bharti.
All these witnesses have been exhaustively cross examined and there is nothing to shake the credibility of their statements. When the accused was specifically asked with regard to the illicit relations of his wife with the deceased Mukesh and the fact that even previously he had quarreled with Mukesh, he simply denied the same as incorrect. No mother worth the name would make allegations against her own deceased son with regard to his illicit relations with a married woman who is a wife of another. Further the residents of the area namely Manju (PW7) and Meenu (PW10) who are independent witnesses have also corroborated and confirmed this aspect. It also stands established from the testimony of Shanno Devi (PW1) and Rajesh Kumar (PW2) the mother and brother of the deceased that they had previously warned Mukesh to stop this liaison St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 62 of 84 with the wife of the accused but the deceased did not pay any heed to the advice of his family members. In fact in her crossexamination the mother of the deceased Shanno Devi (PW1) has specifically stated that it was his son who had told her about his illicit relations with Babbu on which she also advised Babbu not to maintain any relations her son. Similarly, Rajesh Kumar (PW2) has stated that he had never seen Mukesh and Babbu in compromising position but Babbu had many times visited their house and his borther had many time asked him to accompany him to meet Babbu. In fact he has proved that even earlier there was a quarrel between Mukesh and Shanker where Shanker had tried to assault Mukesh on which Mukesh had made a complaint to Police Station Jahangir Puri which was registered vide DD No. 54B dated 24.9.2007 copy of which has been placed on record which is Ex.PW2/D. The signatures of the deceased Mukesh have been duly identified by Rajesh Kumar (PW2) on the said complaint at point A which aspect has gone unrebutted. Therefore, it stands established from the record that the deceased Mukesh was having illicit relations with Babbu Bharti the wife of accused Shanker due to which reason even earlier to the incident there had been a quarrel between the accused and the deceased where the accused had assaulted him and caused injuries to him and had threatened him to leave their house or else he would be killed which complaint was given to the police on 24.9.2007 as evident from Ex.PW2/D. The St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 63 of 84 motive for the crime is this objection of the accused Shanker to the illicit relation of his wife and the deceased Mukesh. Ocular Evidence:
Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborates each other on material aspect connected with the offence, there is no reason to reject their testimonies. In the present case PW10 Smt. Meenu a resident of the same area having her Jhuggi adjoining to the Jhuggi of Shanker is the most material witness of the prosecution who has identified the accused Shanker as the person who was giving beatings to Mukesh with the paya on the floor near the toilet and when Shanker saw her, he also threatened her not to raise her voice. The relevant portion of her testimony is as under:
"..... I know accused Shanker present in the court today as he resides in the neighbourhood in the adjoining jhuggi along with his wife. Smt. Babbu Bharti. The relation between Shanker and his wife were not cordial and Shanker used to quarrel with St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 64 of 84 her.
I know Mukesh who used to visit the Jhuggi of Bharti @ babbu. On night of 22/23.8.2008 I was sleeping in my Jhuggi along with my children.
I heard noise. I came out and Shanker was quarreling with Mukesh and thereafter I went inside. This incident was around 1.30 AM/ 2:00 AM. Thereafter I went inside my jhuggi and had gone to sleep.
On next day in the morning I came to know that Mukesh has been taken to hospital and later on he had expired.
She has further admitted as correct that there was illicit relation between Babbu @ Bharti (wife of accused Shanker) and Mukesh. She has also admitted that on the intervening night of 22/23.8.2008 after hearing the noise when she came out she saw accused Shanker was giving beating to Mukesh with 'Pava' of Charpai (leg of cot) on the floor near the Nala and that when Shanker saw her he threatened her not to disclose anything to anybody on which she went inside the jhuggi.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 65 of 84 It is evident from the aforesaid that the wife of accused Shanker namely Babbu Bharti was having illicit relations with Mukesh to which Shanker had been objecting. On the intervening night of 22/23.8.2008 Meenu (PW10) has seen Shanker causing beatings to Mukesh with a paya of cot near the nala. She has not been crossexamined at all on the aforesaid aspect. On the next day morning the deceased was found near the public toilet situated near the Jhuggi of Shanker in an injured condition on which he was rushed to BJRM Hospital by PCR as he was unconscious at that time. The family members of the deceased immediately raised their suspicions on Shanker since they were aware of the illicit relations on account of which even previously Shanker and Mukesh had a quarrel with each other and in this regard the deceased had even made a complaint to the police on DD No. 54B dated 24.9.2007 copy of which has been placed on record which is Ex.PW2/D. I may further observe that the wife of the accused Shanker namely Babbu Bharti who has expired during the course of trial as appeared before this Court and turned hostile on the allegations against the accused but has admitted having made a statement to the Ld. MM under Section 164 Cr.P.C. which is Ex.PW8/A wherein she had implicated Shanker as the person who on the date of incident had given paya blows to the deceased Mukesh. The relevant portion of her statement is as under: St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 66 of 84 "..... On the intervening night of 22/23 august 2008, I was standing in front of my Jhuggi at about 11:30 pm/ 12:00 night and Mukesh was also standing in a kirana shop which is just in front of their jhuggi. He was giving some indication to me as I was in love with him and I had also one daughter from Mukesh who expired just after her birth. My husband was sitting inside the jhuggi and he came out all of sudden. When he saw that Mukesh was calling me he ran and caught hold Mukesh and dragged him to our jhuggi and took him to the back side of the jhuggi where he started beating him with legs, with fists and with one paya of bed. On seeing that my husband Shanker was beating Mukesh I cried and went to call my jeth Gujjar @ Raman and my Dever Kuchi @ Vijender so that they could stop Shanker from beating Mukesh as my husband was in the habit of taking drugs (smack) and was under the influence of liquor and had lost senses. My Dever and jeth did not stop Mukesh rather they both also started beating Mukesh. My jeth Gujjar caught my mouth St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 67 of 84 so that I should not cry again. All of three kept on beating Mukesh and he was almost dead and injured from various spots seriously. Then all of the three dragged Mukesh and threw him near the toilets which is in the gali itself. The accused Shanker has given threats to me that if I made the statement then I will also have to suffer same consequences as of Mukesh...
I may observe that that the above proceedings conducted by the Ld. MM Sh. S. S. Malhotra have been admitted by the accused and in this regard a statement has been made by the Ld. Amicus Curiae on the instructions of the accused on account of which the Ld. MM was never called for examination and therefore, under these circumstances, there is no reason to doubt the same. The Ld. Addl. PP for the State has put a specific suggestion to the accused namely Babbu Bharti (PW8) that she was under the instructions of the accused and her family members, that she was making an incorrect statement and whatever she had stated to the Ld. MM was her correct statement which she denied. This was only natural because earlier before the Ld. MM she admitted her illicit relations with the deceased Mukesh and also the fact that a female child was born to her out of Mukesh who had expired and therefore on the date of her deposition, St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 68 of 84 Babbu @ Bharti being still in relations with Shanker her husband and staying with his family. She would never depose of something which would be prejudicial to her husband. The only explanation she had given was that she was under the pressure of the police on account of which she had made this statement to the Ld. MM. However, when confronted she admitted that there was no police officer in the Court Room when her statement was recorded and she was made to sit on a chair on the dias itself besides the chair of the Judge and the Ld. MM had specifically asked her if she had any kind of fear or pressure for making this kind of statement which she refused and she specifically told him that she was under no pressure or threat from anybody and it was only thereafter that her statement was readout to her and she affirmed having made the same. In fact PW7 Smt. Manju another resident of the same area and a friend of Babbu Bharti has also testified that Mukesh was on visiting terms with Babbu Bharti in the absence of her husband Shanker. She is not an eye witness to the incident but states that she has been told by Babbu Bharti that Shanker had given beatings to Mukesh. Though the statement of Manju (PW7) is based upon hearsay and cannot be relied upon yet it can always be used for corroborating the testimony of the main witness (Babbu Bharti) who had told Manju (PW7) about Shanker having given beatings to Mukesh. In so far as witness Meenu (PW10) is concerned, there is no reason to disbelieve her since she is St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 69 of 84 a natural witness who is residing in the adjoining Jhuggi next to the Jhuggi of the accused Shanker and naturally when the incident took place wherein Shanker and Mukesh were fighting, she would have come out being alarmed and could have witnessed the same. She has specifically deposed about the incident when she had seen Shanker causing beatings to Mukesh with the paya (leg of the cot) and thereafter when Shanker saw her, he threatened her to keep her mouth shut. Meenu has been exhaustively crossexamined but she has stood her grounds and has denied the suggestion that she had never seen Shanker giving any blows to Mukesh. This being the background I hereby hold that it is Shanker who had inflicted fatal blows on the deceased.
Medical Evidence:
The case of the prosecution is that the deceased had been found unconscious behind the public toilet and was rushed to the BJRM hospital by PCR. His MLC has been duly proved by PW9 Dr. Gopal Krishna. It has been proved that the injured was examined by Dr. Amir Alam under the supervision of Dr. Gopal Krishna and as per the MLC Ex.PW9/A there were multiple laceration over the left fore arm near elbow joint; abrasion and swelling over the right forearm; swelling and abrasion over left and right parietal region; abrasion over right shoulder joint and lower back was found on account of which he St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 70 of 84 was referred to Senior Resident (Medicine, surgery and ortho) and thereafter referred to Trauma Center for further management. On 25.8.2008 the injured Mukesh had expired after which his postmortem was conducted at Maulana Azad Medical College. Dr. Bhim Singh (PW11) has proved that he had observed the following injuries on the body of the deceased:
1. Blueish black contusion 5cm x 3cm over the frontotemporal area.
2. Brownish scabbed abrasion 2cm x 1cm over the back of right elbow.
3. Brownish scabbed abrasion 1.5cm x 1cm back of left elbow.
4. Brownish scabbed abrasion 2cm x 1 cm front of right knee joint.
He has further proved that on internal examination of head effusion of blood was present over the left frontotemporal area with fissured fracture on left temporal bone; brain showed biffuse subarachnoid chnoid hemorrhage present in both cerebral hemisphere with contusion necrosys of naped temporal lobe and left side of cerebellar present; brain was edemetus, weight about 1300 gms.
Dr. Bhim Singh has also proved that on 26.9.2008 one sealed parcel was produced before him which parcel was containing one wooden leg of cot about 2 kg which was having mud stains and St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 71 of 84 the upper part was having , sphere shaped hole with uneven surface and lower part was circular with upper part flat. The witness has proved having prepared the sketch of the same and after examining the weapon of offence he had opined that the injury no. 1, 2, 3 and 4 described by him in the postmortem report of the deceased, could be caused by this weapon produced before him. He has duly proved that the cause was death in the case was due to cranio cerebral damage consequent upon head injury that is head injury (injury no. 1); all the injuries were antemortem in nature and had been caused by blunt force impact and the time since death was 25 hours.
Recovery of the weapon of offence:
The case of the prosecution is that after the arrest of the accused Shanker (who was already having many criminal cases from the same area) he had made a disclosure to the effect that his wife was having illicit relations with Manoj due to which reason on the intervening night of 22/23.8.2008 he was hiding and when Mukesh came to his Jhuggi to meet his wife, he picked up a paya (leg of a cot) and started beating him on which Mukesh started running towards the public toilet but he (accused) ran after the deceased and inflicted a number of blows to him with the said paya on which Mukesh collapsed and thinking that Mukesh was dead, he came back to his St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 72 of 84 Jhuggi and thereafter run away. Pursuant to the said disclosure the accused Shanker not only pointed out towards the place of incident but also got recovered the weapon of offence that is paya (leg of the cot). Here I may observe that the accused Shanker had been apprehended by ASI Surender Singh with AATS Staff and after he was formally arrested in the present case by Inspector Vipin Kumar (PW28) he was interrogated thoroughly on which he made a disclosure statement Ex.PW25/A pursuant to which the accused led the police to his Jhuggi Bearing No. 150, EE Block, Jahangirpuri where he had beaten the deceased Mukesh and also behind the public toilet and in front of Jhuggi no. 2861 where he threw the deceased after beating him and thereafter got recovered the paya (leg of the cot) with which he had beaten Mukesh Kumar and the sky blue Tshirt & blue jeans which were seized vide memo Ex.PW25/C. 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 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 St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 73 of 84 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.
Since the accused Shanker was under the control of police when he made the disclosure statement, he having been detained and Inspector Vipin Bhatia (PW28) had interrogated him thoroughly. In case, if a person voluntarily going to the police and makes a confessional statement and gives information envisaged by Section 27 of Evidence Act he comes in the custody of the police officer as soon as the incriminating statement is made by him. Therefore, the disclosure statement of the accused Shanker Ex.PW25/A, to the extent it relates to the fact that the certain articles had been kept by him that is paya (leg of the cot) is admissible in evidence under Section 27 of Evidence Act. Forensic Evidence:
The earth control lifted from the spot containing the blood stains of the deceased and the clothes worn by the accused Shanker at the time of the incident handed over by him to the Investigating Officer had been sent to FSL for examination and it is evident from the record that though the Tshirt of the accused shows the presence of human blood but there was no reaction with it was specifically tested for blood group whereas no human blood could be St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 74 of 84 detected on the pants of the accused and therefore under these circumstances I hold that the forensic report does not assist the prosecution in any manner.
Role of accused Raman Shera and Vijender @ Kucchi:
The case of the prosecution is that both the accused Raman Shera and Vijender @ Kucchi had assisted the accused Shanker in committing the murder of Mukesh. The only evidence against the accused Raman Shera and Vijender @ Kucchi who are the brothers of accused Shanker, is the statement made by the wife of the accused Shanker namely Babbu Bharti to the Ld. Metropolitan Magistrate under Section 164 Cr.P.C. wherein she had told the Ld. MM that on the date of the incident she was standing in front of her Jhuggi at about 11:30 PM/ 12:00 PM and Mukesh was also standing in Kirana shop which is just in front of their Jhutti and was giving some indications to her as she was in love with him. She had further told the Ld. MM that her husband Shanker who was sitting inside the Jhuggi, came outside all of a sudden and caught hold Mukesh and dragged him to their Jhuggi where he started beating Mukesh with legs, fists and a paya of the cot. On seeing the same, she cried and went to call his jeth Gujjar @ Raman and Devar Vijender @ Kucchi so that they can stop Shanker since he was in a habit of taking drugs (smack) and was under the influence of liquor but rather than St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 75 of 84 stopping Shanker they both also started beating Mukesh and while Gujjar caught hold of her mouth so that she should not cry, all the three kept on beating Mukesh who was almost dead and thereafter they all dragged Mukesh and threw him near the toilets which is in the gali itself and left him there.
However, when Babbu Bharti came to the Court for deposition she did not support the prosecution case and had turned hostile. Rather, when her statement under Section 164 Cr.P.C. was put to her she has stated that she had made this statement under the influence of police as they had threatened her. She has denied the suggestion that Raman Shera and Vijender @ Kuchhi had given beatings to Mukesh. Here, I may observe that the testimony of Babbu Bharti (PW8) made before this Court is a clear attempt to save her husband from penal consequences. I may further observe that PW8 Babbu Bharti is reportedly expired during the course of trial. The eye witness namely Smt. Meenu (PW10) the most material witness of the prosecution only implicated the accused Shanker and had deposed that she had seen the accused Shanker causing beatings to Mukesh and she does not implicate the accused Raman Shera and Vijender @ Kuchhi. Therefore, under these circumstances the statement of Babbu Bharti under Section 164 Cr.P.C. made to the Ld. MM already being a very weak piece of evidence, finding no corroboration from any other source and it would not be safe to rely upon the statement made by St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 76 of 84 Babbu Bharti before the Ld. MM without any independent reliable corroboration forthcoming. I hereby hold that the prosecution has not been able to prove and substantiate the allegations made against the accused Raman Shera and Vijender @ Kuchhi.
Intention and knowledge of the accused Shanker to cause such bodily injury as is likely to cause death:
The Ld. Amicus Curiae appearing on behalf of the accused has vehemently argued that assuming that the deceased was having illicit relations with the wife of the accused, there is nothing on record to prove that the accused Shanker had any premeditation or planned to cause murder of Mukesh and hence his case would fall within the Exception 1 of Section 300 Indian Penal Code which provides that culpable homicide is not murder if the offender, whilst deprived of the power of selfcontrol by grave and sudden provocation, causes the death of the person who grave the provocation or causes the death of any other person by mistake or accident. She submits that there was no premeditation and having seen Mukesh standing outside her Jhuggi and making indications to his wife, the accused become aggressive. Ld. Addl. PP for the State on the other hand has argued that the accused Shanker is a person with criminal background and has been involved in a large number of cases and even previously had been threatened the deceased and therefore it cannot be said that the accused was motivated by sudden and grave St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 77 of 84 provocation consequent to which he had inflicted injuries upon the deceased.
I have considered the rival contentions. I may observe that Firstly the aspect regarding the deceased Mukesh having illicit relations with the wife of accused Shanker namely Babbu Bharti stand established. Secondly it also stands established that the said relations were not approved by the accused Shanker and also by the family members of the deceased Mukesh. Thirdly it stands established that on account of the aforesaid there were frequent quarrel between the accused Shanker and Mukesh even previously on 24.9.2007 that is almost one year prior to the incident, wherein the accused Shanker had threatened to kill Mukesh and had asked him to vacate his house and to shift from the area in respect of which Mukesh had even lodged a complaint to Police Station Jahangir Puri vide DD No. 54B which is Ex.PW2/D which aspect has gone unrebutted. Lastly the material on record show that Mukesh had gone to the market to purchase biri and there is nothing on record to show that he had entered the house of Shanker to meet his wife as a result of which the accused was deprived of the power of selfcontrol.
Rather, the long history of disputes between the accused and the deceased shows that the accused was already aware of the illicit relations between his wife and Mukesh and had been objecting to the St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 78 of 84 same and perhaps it is for this reason that previously he had threatened the deceased to either shift from his house or else he would be kill and it is this what reflects the intention so attributed to the accused.
This Court would have agreed with the proposition put forward by the Ld. Defence Counsel but for the complaint made by the deceased to the local police which is Ex.PW2/D proving that the deceased had been previously threatened by the accused Shanker to vacate his house or else he would pay for it by his life and and it is this previous complaint filed by the deceased lodged with Police Station Jahangir Puri which has compelled this Court to think otherwise because it proves that the accused Shanker had been harbouring a grudge against the deceased for the reason whatsoever and had been entertaining an intention to finish the deceased, in case if he did not shift from the area. The wife of the accused Babbu Bharti being the reason for this fight between the accused and the deceased would be immaterial and cannot persuade this Court to bring this case within the Exception 1 of Section 300 Indian Penal Code. Hence, I hereby hold that the accused Shanker by inflicting paya blows on the head of the deceased, had caused the said injuries with the intention of causing these injuries as he knew was likely to cause death of Mukesh.
St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 79 of 84 FINAL CONCLUSIONS:
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;
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 St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 80 of 84 probability the act must have been done by the accused.
Applying the settled principles of law to the facts of the present case, it is evident that the identity of all the accused Shanker, Raman Shera and Vijender @ Kucchi stands established. The accused Shanker is a Bad Character of the area and is involved in number of case and the accused Raman Shera and Vijender @ Kucchi are his brothers. It stands established that the accused Shanker used to remain in jail for long periods in connection with other cases during which his wife Babbu Bharti made illicit relations with Mukesh a resident of the same area. It has also been established that the said relations between Mukesh and Babbu Bharti were not approved by the accused Shanker and the family of Mukesh and there were frequent quarrels between the accused Shanker and Mukesh which incidents were not reported to the police. The prosecution has duly proved that even previously on 24.9.2007 there was a quarrel between the accused Shanker and Mukesh wherein the accused threatened Mukesh to either vacate the house or else he would be killed pursuant to which a complaint was lodged by Mukesh with Police Station Jahangir Puri vide DD No. 54B. It stands established that on the intervening night of 22/23.8.2008 there was a quarrel between the accused Shanker and Mukesh (deceased) wherein the St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 81 of 84 accused gave beatings to Mukesh with the help of a paya (leg of the cot) and dragged him to the public toilet where he threw Mukesh thinking him dead. It has been established that the the head injury that is bluish black contusion 5 cm X 3 cm over the front temporal area is sufficient to cause death in ordinary course of nature.
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.
In view of the aforesaid I hereby hold that the prosecution has proved that the accused Shanker had given paya blows on the head of the deceased with the intention of causing bodily injury as as he knew to be likely to cause death of Mukesh and hence, the accused Shanker has been held guilty of the offence under Section 300 (2) Indian Penal Code punishable under Section 302 Indian St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 82 of 84 Penal Code and convicted him accordingly. However, the prosecution has not been able to prove the aspect of criminal conspiracy and destruction of evidence due to which reason the accused Shanker is acquitted of the charge under Sections 120B and 201 IPC.
However, it does not stand establish that the accused Raman Shera and Vijender @ Kucchi had in any manner assisted the accused Shanker in committing the murder of Mukesh, the only evidence against them being the statement of the wife of accused Shanker namely Babbu Bharti made to the Ld. MM under Section 164 Cr.P.C. I hereby hold that the circumstances reflected from the material on record do not stand conclusively established. The facts are also are not consistent only with the hypothesis of the guilt of the accused. The chain of evidence is not so much complete so as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused persons. The materials brought on record by the prosecution are insufficient to hold that each of the accused Raman Shera and Vijender @ Kucchi was guilty beyond reasonable doubt. Further, each circumstance has not been proved beyond reasonable doubt. The prosecution has also not established a conclusive link connecting each individual circumstance with the other, and the accused namely Raman Shera and Vijender @ Kucchi. Crucially, the materials and evident on the record do not bridge the St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 83 of 84 gap between "may be true" and must be true" so essential for a court to cross, while finding the guilty of an accused, particularly in cases based on circumstances evidence. Therefore, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Raman Shera and Vijender @ Kucchi beyond reasonable doubt and hence, benefit of doubt is being given to them who are acquitted of the charges under Sections 302/201/120B Indian Penal Code.
Case be listed for arguments on sentence against the convict Shanker on 29.11.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 22.11.2011 ASJII(NW)/ ROHINI St. Vs. Shankar Etc., FIR No. 434/08, PS Jahangir Puri Page No. 84 of 84