Delhi District Court
State vs . : 1) Rohit Khatri @ Shiva on 15 November, 2018
IN THE COURT OF ASJ/PILOT COURT/NORTH DISTRICT, ROHINI
COURTS: DELHI
Sessions Case No:237/18
FIR No. : 1012/17
U/s : 302/201/120B/34 IPC
P.S. : Narela
State Vs. : 1) Rohit Khatri @ Shiva
S/o Sh. Rakesh Khatri
R/o Sanjay Colony, Gali No.9,
Safiabad Road, Narela, Delhi.
2) Sushil Kumar
S/o Sh. Nahar Singh
R/o H.No. 116, Nai Basti, Pana
Mamurpur, Narela, Delhi.
3) Gaurav Bhardwaj
S/o Sh. Virender Bhardwaj
R/o H.No.1507, Pana Mamurpur,
Narela, Delhi.
Offence complained of : 302/201/120B/34 IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of committal : 26.04.2018
Date of Judgment : 15.11.2018
JUDGMENT
1. On 30.12.2017 Hitesh along with his friends Arun and Dinesh reached at plot of Ram Kishan, grand father of State Vs. Rohit Khatri SC No. 237/18 :: 1 ::
Hitesh, situated near Sushil Nurshing School, Street no. 9, Gautam Colony, Narela at about 5.30p.m. on motorcycle No. DL 11B 6413. Ravinder was already present there and smoking Hukka. They also started smoking Hukka. Dinesh and Ravinder set on the chairs. Hitesh and Arun set on the cot. After some time Rohit and Sushil also reached there covering themselves with shawls. They started talking with each other. Suddenly Sushil and Rohit took out knives and started hitting on the head and neck of Dinesh. When Hitesh and Arun moved forward to catch them they fled away. Meanwhile Mohit also reached there. Arun made call at 100 no. Mohit and Arun removed Dinesh to the hospital where doctor declared him dead. On the complaint of Hitesh the FIR was lodged. During investigation accused Rohit, Sushil and Gaurav Bhardwaj were arrested. Weapon of offence i.e the knife and the wearing clothes of the accused were recovered. The conversation recorded in the mobile phone of Gaurav Bhardwaj was also retrieved. After completion of investigation the charge sheet against the accused persons was filed. The Ld. MM after compliance of provision U/s 208 Cr.P.C. committed the case to the Sessions Court as the offence punishable U/s 302 IPC is exclusively triable by the Sessions Court.
2. All the accused were charged for the offence State Vs. Rohit Khatri SC No. 237/18 :: 2 ::
punishable U/s 120B IPC for hatching conspiracy to murder Dinesh. Accused Rohit and Sushil were also charged U/s 302 R/w 120 B IPC for the offence of causing murder in pursuance to the conspiracy hatched with Gaurav Bhardwaj.
The accused persons pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
3. Prosecution in order to prove its case examined 33 witnesses. One court witness was also examined.
4. Hitesh was examined as PW-1. He deposed that on 30.12.2017 in the evening hours at about 5:30 or 6:00 pm he along with his friend Arun and Dinesh went to the plot of Ram Kishan situated in street No.9 near Sushila Nursing School, Gautam Colony, Delhi to smoke Hukka. They reached there on the splendor motorcycle owned by Arun. While they all were smoking hukka two more boys came there whom he was not knowning and they started talking with Dinesh about some money transaction. Those two boys took out the knives and stabbed Dinesh on his head and neck. They raised alarm. People gathered there. Both those boys fled away. One knife used in commission of crime was left on the spot. He and Arun removed Dinesh to SR HC Hospital on splendor motorcycle of Arun. Doctor examined Dinesh and declared him dead. Thereafter he along with Arun returned to the same plot on the motorcycle. While they were taking Dinesh State Vs. Rohit Khatri SC No. 237/18 :: 3 ::
to the hospital Arun also made a call at 100 number. After they reached the spot police arrived there. Police made inquiries from him and recorded his statement Ex.PW1/P1. Police also obtained his signatures on some documents. Police lifted the knife from the spot but he does not know what the police did with that knife. While the police was making inquiries on the spot Sushil and Rohit also reached there. Police also made inquires form them. He along with Arun was taken to police station Narela. They were kept in the police station for the next 10 to 12 days. Thereafter, they were produced in the court. His statement was recorded by the Judge Sahab in the chamber as told by police. Police asked him that they would falsely implicate them if they did not name Rohit and Sushil as the persons who stabbed Dinesh. Due to fear of police they falsely implicated them and named Rohit and Sushil. He identified Rohit and Sushil also.
5. The witness was cross examined by Ld. APP as he resiled from his earlier statement. He was confronted with his statement Ex.PW1/P1 but he did not support the prosecution case at all. However, he admitted that the case property was lifted from the spot and he had shown the place of occurrence to the police from where the blood stained Chilam, blood stained chair make Supreme, bunch of hair of deceased Dinesh, blood stained cemented floor, controlled State Vs. Rohit Khatri SC No. 237/18 :: 4 ::
sample of floor were taken by the police but he does not know if the samples were put in separate plastic containers. He denied the suggestion that blood stained glass and blood was lifted with gauze piece were also taken in possession after sealing with the seal of RM. He admitted that 7 parcels were prepared and exhibits were sized vide memo PW1/P2 having his signatures at point A. He was also confronted with statement Ex.PW1/P3. He was also confronted with print out of the conversation taken out from the mobile phone produced by Virender father of Gaurav or that he had gone through the conversation Ex.PW1/P4 and put his signature. However he admitted that it bears his signatures. He had also denied that on 08.01.2018 he had seen the CCTV footage of the system installed at Sushila Nursing School wherein he and Arun with Dinesh are visible going on a motorcycle or that Sushila and Rohit covering themselves with shawls are going towards his plot at 7:00 pm or that at 7:15 pm injured Dinesh was taken on motorcycle by Mohit and Arun as visible in the CCTV Footage. He denied the suggestion that DVR of Ajit Singh was sealed with the seal of RM and seized vide memo Ex.P5. He was confronted with his statement Ex.PW1/P6. He admitted that he handed over the photocopies of GPA, Agreement to sell and will in the name of his grandfather Ram Kishan along with Affidavit, State Vs. Rohit Khatri SC No. 237/18 :: 5 ::
receipt and possession letter and the original electricity bill of the property to the police who seized the same vide seizure memo Ex.PW1/P7. He identified the photocopies of the documents as Ex.PW1/P8 running into 8 pages. He also denied that he made the correct statement before Ld. MM on 09.01.2018 which is Ex.PW1/P9 or that he is deliberately not identifying the accused persons. He also denied the suggestion that no knife was found at the spot or that the accused persons ran away with the knives. The CD was played on the desktop but he was not able to identify any of the accused in the CCTV Footage.
6. During cross-examination by the Ld. Counsel for accused Sushil and Rohit he stated that there are 2 streets which comes in between Sushila Nursing School and scene of crime. The street in front of Sushila Nursing School goes towards J.K Farm and in between the same falls the place of incident. No question was put to the witness on behalf of accused Gaurav Bhardwaj.
7. Rohit was examined as PW-2. He also spoke on the lines as deposed by PW-1. He also stated that he along with Hitesh removed Dinesh to SRHC Hospital on Splender motorcycle. Thereafter, he along with Hitesh returned to the same plot on his motorcycle. He made call at 100 number before removing Dinesh to the hospital from his mobile State Vs. Rohit Khatri SC No. 237/18 :: 6 ::
phone NO:7827757342. When they returned police was present on the spot. Police made inquiries from him. His statement was also recorded by Ld. MM after 10-15 days of the incident. The statement before Ld. MM was given by him under the pressure of police and threat of false implication. Both Rohit Khatri and Sushil Kumar are correctly identified by him.
8. He was cross-examined by Ld. APP. He was confronted with his statement Ex.PW2/P9. He admitted that he handed over the motorcycle DL 11SB 6413 along with DL and copy of RC to the police who seized the same vide memo ExP10. He denied the suggestion that he was not tutored or threatened by the police before recording his statement by Ld. MM on 09.01.2018 or that statement Ex.PW2/P1 was true and correct statement as recorded by Ld. MM. No question was put to the witness on behalf of accused Gaurav Bhardwaj.
9. During cross-examination by Ld. Counsel for accused Rohit and Sushil. He admitted that his black lower/pyjama was stained with blood while removing injured Dinesh to the hospital and the same lower was taken by the police from him on the same very day.
10. Ravinder was examined as PW-3. He deposed that he is working as a taxi driver and owned Taxi i.e. Ertiga. He State Vs. Rohit Khatri SC No. 237/18 :: 7 ::
used to provide service to the employee of CSC Noida, Sector-62, UP. Saturday and Sunday were weekly off. On Saturday he used to go to the plot of his uncle Ram Kishan where he along with his friends used to smoke hukka. On 30.12.2017 his brother Mohit dropped him at the plot of Ram Kishan. After dropping him out side the plot Mohit left on the motorcycle. At about 6:00 /6:30 pm Arun, Hitesh and Dinesh reached the said plot on a motorcycle and they went inside the room situated on the plot. He lay down on the cot. All the three above named persons were drinking liquor. At that time two boys reached there covering themselves with shawls.
Those 2 boys were discussing with Dinesh regarding some money transaction for about 2-4 minutes. He heard the noise maar diya. He went to the place where Hitesh, Arun and Dinesh were present with those two persons. He saw Dinesh bleeding from his head. Those two boys ran away from the said plot. Arun and Hitesh were shouting. Dinesh was sitting on the plastic chair. He asked Arun to make call to the police at 100 number. He with the help of Hitesh and Arun brought Dinesh outside the plot where they had parked their motorcycle. In the meanwhile his brother Mohit also reached there on his motorcycle. His brother Mohit rode on the motorcycle of Arun and they made Dinesh to sit on motorcycle behind Mohit and Arun also sat on the same State Vs. Rohit Khatri SC No. 237/18 :: 8 ::
motorcycle. They took Dinesh to the hospital. He drove the motorcycle of his brother Mohit and Hitesh sat on the rear seat. They reached Sharda Hospital Narela where Dinesh was given medical aid and advised by the doctors to take Dinesh to some other Govt. Hospital. Dinesh was taken to SRHC Hospital where doctor declared him brought dead. In the hospital they met with police officials of PS: Narela. They along with police officials reached at the plot of Hitesh. Police made inquiries from them. He along with Hitesh and Arun were taken to PS: Narela where they were kept for one week. Hitesh and Arun informed them that Dinesh was stabbed by Rohit and Sushil. He had not seen the faces of the assailants. He cannot identify the assailants. His statement was also recorded by Ld. MM wherein he named Rohit and Sushil.
11. The witness was cross-examined by Ld. APP wherein he denied that Rohit and Sushil came there covering themselves with the shawls or that they stabbed on the head and neck of Dinesh. He was confronted with his statement Ex.PW3/P12. He denied the suggestion that he had witnessed the incident or that Hitesh and Arun had told the names of tha assailants. He also denied the suggestion that he made the true and voluntary statement Ex.PW3P13 before the Ld. MM. He denied the suggestion that on State Vs. Rohit Khatri SC No. 237/18 :: 9 ::
08.01.2018 he had seen the CCTV footage of Sushila Nursing School played by Ajeet Singh or that DVR of Ajeet Singh was seized vide memo Ex.PW1/P5. He was confronted with his statement Ex.PW3/P14. The CCTV footage was also played but he had failed to identify any person visible in the CCTV footage. No question was put to the witness during cross-examination by the defence.
12. ASI Vineet was examined as PW-4. He deposed that on 30.12.2017 after receiving DD No.55A regarding the fact that one female had been stabbed in street No.9, Sanjay Colony Narela, he along with SI jeet Singh reached scene of crime i.e. plot of Ram Kishan near Sushila Nursing School, Gautam Colony, street No.9. At the spot there was blood on the wall, on the ground and on the chair. Hair were also found lying on the spot hukka was also found on the spot. No eye witness was present. They came to know that injured has been removed to the hospital. He remained on the spot and SI Jeet Singh left for the hospital. The other beat staff of PS: Narela also reached there. After some time SI Jeet Singh along with Inspector Ram Manohar reached the spot. Mobile crime team also reached the spot. Officials of mobile crime team inspected the scene of crime. The photographer took the photographs of the scene of crime from different angles.
The complainant Hitesh came at the spot. Inspector Ram State Vs. Rohit Khatri SC No. 237/18 :: 10 ::
Manohar received the copy of FIR and original rukka from Ct. Bhupender. One blood stained hukka attached with chilam was lying there. The chilam of the hukka was wrapped with cello tape, thereafter, wrapped in a piece of cloth. It was sealed and was given sl.no.1. One blood stained chair make Supreme was wrapped in a piece of cloth, sealed with the seal of RM and was given sl.no.2. One blood stained plastic glass was put in a box, wrapped with doctor tape sealed with the seal of RM and was given sl.no.3. Hair found on the spot were lifted, put in a plastic container, sealed with the seal of RM and was given sl.no.4. Blood was lifted on a gauze piece, put in a plastic container sealed with the seal of RM and were given sl.no.5. Blood stained cemented earth was lifted, put in a plastic container sealed with the seal of RM and were given sl.no.6. Control portion of the cemented floor was lifted, put in a plastic container, sealed with the seal of RM and given sl.no.7, all the parcels were seized vide memo Ex.PW1/P2. IO prepared the site plan at the instance of complainant. He identified the Chilam of hukka as Ex.MO5, the chair as Ex.MO6. The plastic disposable glass as MO7. Bunch of hair as Ex.MO8. Gauze piece having blood stain as Ex.MO9. Cemented floor having blood stained as Ex.MO10 and the controlled sample of the floor as Ex.MO11.
13. During cross-examination by the Ld. Counsels for all State Vs. Rohit Khatri SC No. 237/18 :: 11 ::
the accused persons he deposed that 4 to 5 public persons gathered on the spot when they reached there. In his presence SI Jeet Singh made inquires about the injured. SI Jeet Singh had not examined the PCR caller. The name of the injured was told to them by the public persons from whom SI Jeet Singh had made inquires. SI Jeet Singh left the place of occurrence for the hospital at about 7:40 pm. SI Jeet Singh returned to the spot at about 9:45 pm along with Inspector Ram Manohar. Crime team reached the spot prior to the returning of SI Jeet Singh at the spot. Complainant Hitesh had accompanied SI Jeet Singh and Inspector Ram Manohar to the spot from the hospital. Exhibits from the spot were lifted in the presence of Hitesh. IO also obtained the signature of Hitesh on the memos. He denied the suggestion that place of incident was tampered by him or that signature of complainant were obtained on certain blank papers which were subsequently converted into various seizure memos. He denied the suggestion that one knife was found lying on the spot which was lifted by them and later on planted upon the accused.
14. SI Jeet Singh was examined as PW-5. He corroborated the testimony of PW-4 about reaching the spot and founding the blood on the wall, on the ground, on the chair, bunch of hair, hukka and cot. They came to know that State Vs. Rohit Khatri SC No. 237/18 :: 12 ::
injured had been removed to the hospital. ASI Vineet remained at the spot and he left for SRHC Hospital. The other beat staff also reached the hospital. In the hospital he collected MLC of injured Dinesh who was declared brought dead. In the hospital he met Hitesh and eye witnesses Arun, Ravinder and Mohit. He recorded statement of Hitesh Ex.PW1/P1. He moved application for preserving the dead body in the mortuary of BSA hospital and sent the body through Ct. Gaurav. He made endorsement Ex.PW5/P16 on the statement of Hitesh, prepared the rukka and sent the same to PS for registration of FIR through Ct. Bhupender. He also requested for sending the crime team to the spot. He along with Inspector Ram Manohar reached the spot. Crime team reached the spot. The crime team inspected the scene of crime. The photographer took the photographs. The complainant Hitesh was also present on the spot. He corroborated the testimony of PW4 regarding the lifting of exhibits from the spot and seizure of the same. IO prepared the site plan at the instance of complainant. Thereafter, they returned to the police station.
15. He along with Ram Manohar reached Dr. BSA Hospital where Manish and Sachin identified the dead body of Dinesh. IO prepared the inquest papers. Post mortem was conducted on the dead body. After the post mortem doctor State Vs. Rohit Khatri SC No. 237/18 :: 13 ::
handed over two boxes and three envelopes out of which two envelopes containing sample seal of viscera and blood on gauze which were seized by the IO vide Ex.P17.
16. On 31.12.2017 one secret informer came to the police station and informed that one person Rahul who had dropped Rohit and Sushil on his motorcycle at Singhu border after commission of crime is present at his house. He along with IO and Ct. Amit with secret informer left for Panna Mehmood Pur. On the pointing out of secret informer they reached the house of Rahul. Rahul was found at house. IO interrogated him. Thereafter, they came to the police station.
Rahul was interrogated and arrested. Rahul made disclosure statement Ex.PW5/18. He identified the case property and also accused Rahul.
17. During cross-examination by the Ld. Defence counsels for all the accused persons, he deposed that they reached the place of occurrence at about 7:30 pm. No PCR official met them at the spot. 3 to 4 public persons were present there. He had contacted the PCR caller on phone. On that day he had received two DD's, one regarding the occurrence and the second from the hospital. He reached SRHC Hospital at about 8:00 pm. No PCR official met him in the hospital. Inspector Ram Manohar reached SRHC Hospital at about 8:30 pm. He recorded the statement of State Vs. Rohit Khatri SC No. 237/18 :: 14 ::
complainant Hitesh in between 8:15 to 8:30 pm. He had not noticed if the clothes of the person who took injured to the hospital were stained with blood or not. He sent the rukka from the hospital at about 9:30 pm. He returned back to the spot along with Inspector Ram Manohar at about 10:00 pm. Crime team officials were present on the spot when they reached. After inspection Crime Team left the spot but he does not remember the time when they left. He denied the suggestion that knife was found lying on the spot which they had kept with them which they later on planted upon accused Rohit. He denied the suggestion that JCL Rahul had not made any such statement in his statement before IO.
18. Ct. Amit was examined as PW-6. On 30.12.2017 he delivered the copy of FIR to the senior police officials and the area MM. He also deposed that on 31.12.2017 IO prepared the transcript of the conversation recorded in the mobile set. The print of the same is Ex.PW1/P4.
19. One secret informer came to the police station and informed about Rahul who dropped Rohit and Sushil on his motorcycle at Singhu Border after they had committed crime. He along with IO, SI Jeet Singh and secret informer reached at the house of Rahul at Pana Mehmood Pur. Rahul was found at home. Rahul was interrogated and arrested. Rahul made the disclosure statement Ex.PW5/18. He identified the State Vs. Rohit Khatri SC No. 237/18 :: 15 ::
mobile phone make intex and the memory card of Sandisk along with sim card as Ex.MO1. The data of MC1 is placed on MO3. He stated that it is the same file which he heard and the transcript of the same is Ex.PW1/P4.
20. During cross-examination by Ld. Defence counsel he deposed that they left the police station at about 10:30 pm. He does not remember the time when they returned to the police station. He denied the suggestion that Rahul was not arrested in the manner as deposed by him or that Rahul did not make any disclosure statement.
21. Ct. Bhupender was examined as PW-7. He deposed that on 30.12.17 on receipt of information regarding stabbing incident at plot of Ram Kishan he along with other staff reached SRHC Hospital. SI Jeet Singh met him there. SI Jeet Singh collected the MLC of Dinesh who was declared brought dead. The dead body was removed to the mortuary of Dr. BSA Hospital. SI Jeet Singh recorded statement of Hitesh in the hospital. Other eye witnesses Arun, Ravinder and Mohit were also present in the hospital. IO prepared the rukka and handed over to him at 9:30 pm. He went to the police station and handed over rukka to the duty officer. Duty officer registered the FIR and handed over the original rukka and copy of FIR to him to hand over the same to Inspector Ram Manohar. He reached the scene of crime and handed State Vs. Rohit Khatri SC No. 237/18 :: 16 ::
over the rukka and copy of FIR to the IO.
22. On 12.01.2018 he along with IO went to the Rohini Court complex. Accused Rohit Khatri, Sushil and Gaurav were produced by police official of special staff. IO with the permission of the court interrogated them and arrested them vide arrest memos Ex.PW7/P19, Ex.PW7/P20 & Ex.PW7/P21. Rohit Khatri made the disclosure statement Ex.PW7/P22. Police custody remand of all the accused were taken.
23. On 13.01.2018 all the accused were taken out from the lockup. They made the disclosure statements Ex.PW7/P23, Ex.PW7/P24 and Ex.PW7/P25 respectively. He along with IO Ct. Tilak raj and accused persons left the police station. Accused Sushil Khatri pointed out the place of occurrence vide pointing out memo Ex.PW7/P26. Accused Sushil pointed out the place of occurrence vide pointing out memo Ex.PW7/P27.
24. Accused Sushil led them to the way going to Singhu Village from NH-1 and from the bushes produced one black colour lower track pants having some blood stains and hair. The hair from the lower were lifted, put in a plastic container, sealed with the seal of RM and given sl.no.8. The lower was put in a polythene, wrapped in a piece of cloth, sealed with the seal of RM and given sl.no.9. Both the parcels were State Vs. Rohit Khatri SC No. 237/18 :: 17 ::
seized vide memo Ex.PW7/P28.
25. Accused Rohit led them on the way to NH-1 going to Singhu Village and from the bushes got recovered one knife, sketch of knife Ex.PW7/P29 was prepared. The knife was put in a plastic container, sealed with the seal of RM. It was given sl.no.10. The parcel was seized vide memo ExPW7/P30.
26. On 08.01.2018 he joined the investigation along with Inspector Ram Manohar. Hitesh and Ravinder came to the police station and accompanied them to Sushila Nursing School, Street No.9, Gautaum Colony , Narela. Ajeet Singh handed over the DVR to the IO. DVR was sealed with the seal of RM and seized vide memo Ex.PW1/P5. He correctly identified all the accused persons. He correctly identified the DVR as Ex.MO2, black colour lower of accused Sushil as MO12. The piece of cloth produced by accused Sushil as Ex.MO13 and the knife as Ex.MO14.
27. During cross-examination by the ld. Defenc counsel he deposed that Inspector Ram Manohar reached the hospital at about 8:35/8:40 pm. He does not rmemeber the time when SI Jeet Singh recorded the statement of Hitesh. Except DD No.8A no other information was received by him with regard to the present incident. SI Jeet and Inspector Ram Manohar were in the hospital when he left with rukka. State Vs. Rohit Khatri SC No. 237/18 :: 18 ::
He does not remember the time when they left the police station on 08.01.2018 for going to Sushila Nursing Home.
28. On 13.01.2018 the accused persons were taken out of the lockup at 10:00 am. They left the PS at about 11/11:30 am in private vehicle. They reached the place of incident at about 11:45 am. The place of incident was already in the knowledge of IO. No public person was joined at the time of pointing out. They remained at the scene of crime for about 30-35 minutes.
29. The way going to NH-1 from Singhu village is not crowded. No public person was joined at the time of recovery of clothe and knife. There was distance of 7-8 steps in between the places from where black colour lower and knife were recovered. Both those places were on the same side of NH-1. They reached the police station at about sunset time. The recovered articles were seized at the place of recovery itself.
30. HC Tilak Raj was examined as PW-8. He corroborated the testimony of PW-7 with respect to the investigation carried out on 13.01.2018 i.e. the pointing out by both the accused persons and the recoveries of the black colour lower and the knife. He identified the accused persons and also the case property.
31. During cross-examination by the Ld. Defence counsel State Vs. Rohit Khatri SC No. 237/18 :: 19 ::
for accused persons he deposed that they left the police station at about 9:30 am. The place of occurrence was already in their knowledge. They reached the place of recovery in noon hours. IO requested passersby to join investigation but none agreed. The distance between the place of recovery of lower and knife was 10 to 15 paces. The same were found lying on the same side of the road in the bushes.
32. SI Deepak was examined as PW-9. He deposed that on 30.12.2017 he was posted as Incharge of mobile crime team. On that day after receiving call from the control room, he reached at Gautam colony near Sushila School of Nursing. HC Vikas and other staff were also with him. On the spot SI Jeet and other staff of PS: Narela met them. He inspected the scene of crime. HC Vikas took the photographs of scene of crime. They remained on the spot from 9 pm to 10 pm. He prepared the crime scene report Ex.PW9/P31.
33. During cross-examination by the Ld. Counsel for the accused persons he deposed that he received the information about the incident at 8:15 pm from control room. Public persons were there during the examination of scene of crime but no body could tell anything about the incident during his stay there to the IO or to him. He denied the suggestion that he had not visited the scene of crime or that State Vs. Rohit Khatri SC No. 237/18 :: 20 ::
the contents of the report are not correct.
34. Ct. Naveen was examined as PW-10. He prepared the scaled site plan of the scene of crime Ex.PW10/P32 and proved the same.
35. During cross-examination by the Ld. Counsel nothing came on record to discredit the witness.
36. SI Sachin Mann was examined as PW-11. He deposed that on 11 January 2018 he was posted at Special Staff Rohini District. On that day at about 1:00 pm a secret informer came to the office and informed that 3 boys wanted in a murder case would come near park gate in front of Sector-A6 Narela. He discussed with Inspector Ajay Kumar who after consultation with senior officers directed him to conduct raid. He formed raiding party comprising ASI Jagdish, ASI Devender, ASI Nahar Singh, HC Shamsher, Ct. Vikas and Ct. Narender. They left the office in two private vehicles after recording DD No.7 Ex.PW11/P33. They reached the said place at about 2:30 pm. Public persons were requested to join raiding team but none agreed. They laid the trap. At about 3 pm 3 boys were seen coming from the side of Govt. malkhana. On the pointing out of secret informer they were apprehended. They were taken to the office of special staff. They revealed their names as Sushil Khatri, Shiva @ Rohit Khatri and Gaurav Bhardwaj. They State Vs. Rohit Khatri SC No. 237/18 :: 21 ::
were arrested vide arrest memos Ex.PW11/P34, P35 and P36 respectively. Their personal search were conducted vide memos Ex.PW11/P37, P38 & P39 respectively. They made the disclosure statements Ex.PW11/P40, P41 & P42 respectively. He lodged DD No.12 Ex.PW11/P43. He accordingly informed PS: Narela regarding arrest of three accused persons who disclosed about the murder of Dinesh. He prepared kalandra u/s 41.1 (a) Cr.PC Ex.PW11/P44. He identified all the three accused correctly.
37. During cross-examination by ld. Counsel for all the accused persons. He deposed that the secret informer did not disclose the parentage and residential address of accused persons. The arrest memos were prepared at the office of special staff. Accused persons tried to resist their arrest but they were overpowered. The place of arrest is not populated area/ crowded area. Prior to the arrest of the accused persons he was aware regarding the case FIR No.101/17 PS: Narela as disclosed to him by the IO when contacted over phone. He denied the suggestion that accused persons were detained by police officials of PS:
Narela 3 days prior to their arrest by him in the kalandra proceedings or that he prepared the false kalandra in collusion with the police of PS: Narela.
38. HC Vikas was examined as PW-12. He was the State Vs. Rohit Khatri SC No. 237/18 :: 22 ::
member of the crime team which visited the scene of crime. He took 8 photographs of the scene of crime and proved the same as Ex.PW12/P45 to Ex.P52. He proved the certificate u/s 65B Evidence Act as Ex.PW12/P53. He also proved the CD containing the photograph as Ex.MO1.
39. During cross-examination by the Ld. Counsels for accused persons he deposed that some public persons were standing away from the scene of crime. He denied the suggestion that scene of crime was manipulated or that only thereafter the photographs were taken.
40. ASI Nahar Singh was examined as PW-13. He was also posted in the special staff and he corroborated the testimony of PW-11 regarding the arrest of all the three accused persons and their making the disclosure statements. He also identified all the three accused persons.
41. During cross-examination by the Ld. Defence counsels for all the accused persons he stated that secret informer did not disclose the parentage and residential address of accused persons. He denied the suggestion that accused persons were detained by the police officials of PS:
Narela 3 days prior to their arrest in the Kalandra or that the accused persons have been shown to arrested in false Kalandra in collusion with the police officials of PS: Narela.
42. Sh. Geetesh Patel, Asstt. Chemical Examiner Physics, State Vs. Rohit Khatri SC No. 237/18 :: 23 ::
FSL Rohini, Delhi was examined as PW-14. He deposed that on 16.07.2018 he received one sealed parcel duly sealed in computer forensic unit of FSL. The seals were intact and tallied with the specimen seal. He examined the CDR of the moser bear and gave detail report Ex.PW14/P54. On 17 July 2018 one another sealed parcel was received in the computer forensic unit of the FSL. The seals were intact and tallied with the specimen seal. He examined the DVDR of Sony and gave detailed report Ex.PW14/P55. The requisite photograph of the frame images are Ex. P1 to P5. The testimony of the witness has gone unchallenged and uncontroverted.
43. Sh. Ajay Kumar Senior Scientific Assistant (document) was examined as PW-15. He examined the Intex make mobile phone marked as MP1 with one sim card mark SC1 and one Sandisk make memory card of 4 GB capacity marked as MC1. The relevant data i.e. the audio files which could be retrieved from the exhibit marked MC1 are enclosed in one CD marked as CD1 with folder name DATA of MC1. No relevant date audio files could be retrieved from the exhibit mark SC1. The exhibit mark MP1 is not responding with the universal forensic extraction device version 7.5.0.845 of M/s. Celebrite Mobile Syncronisation Ltd. Israiel and Hardware/Software tools available in this laboratory as State Vs. Rohit Khatri SC No. 237/18 :: 24 ::
no such data could be retrieved from MP1. One additional copy of CD marked CD1 sealed with the seal of DOC. FSL was internally forwarded to the physics division of this laboratory for further examination. He examined the same and gave his report as Ex.PW15/P6. He also issued the certificate u/s 65B Evidence Act which is Ex.PW15/P57. Another sealed parcel having seal of RM was received. He examined the Hike Vision make DVR machine marked as DVR1 with one hard disk drive of 1 TB capacity marked as HDD1. The requiste data of channel No.3 dated 30.12.2017 from 18:10:04 to 19:26:49 and channel No.02 dt.30.12.2017 from 17:58:19 to 19:15:04 were retrieved from the Exhibit marked HDD1 enclosed here with one DVD marked as DVD1 with folder name D88 of HDD1 one additional copy of DVD mark DVD1 sealed with the seal of DOC.FSL has been internally forwarded. He prepared the detailed report Ex.PW15/P58 and issued the certificate u/s 65B Evidence Act Ex.PW15/P59. He also identified the mobile phone along with the Sim card and the memory card as Ex.MO1 collectively. He identified the Hike vision DVR as Ex.MO2. He also identified the CD Ex.1 referred as CD1 as Ex.MO3 the DVD as Ex.MO4. Nothing material came on record to discredit the witness during cross-examination by the Ld. Counsel for the accused persons.
State Vs. Rohit Khatri SC No. 237/18 :: 25 ::
44. Sh. Saurabh Pathak, Jr. Forensic Chemical Examiner Biology was examined as PW-16. He examined the exhibits in the FSL and gave his detailed report as Ex.PW16/P60 running into 3 pages. The testimony of the witness has gone unchallenged and uncontroverted.
45. Ms. Kavita Goel, Asstt. Director Chemistry, FSL was examined as PW-17. She conducted the examination on the exhibits received and gave her detailed report Ex.PW17/P61.
The testimony of the witness has gone unchallenged and uncontroverted.
46. Dr. Vijay Dhankar was examined as PW-18. He has been deputed by the M.S to depose on behalf of Dr. Kuldeep Kumar the then M.D Forensic Medicine. He had seen Dr. Kuldeep Kumar signing and writing and conversant with his handwriting and signature. He has seen the post mortem report No.1003/17 dt. 31.12.2017 of deceased Dinesh Kumar. This report is in the handwriting of Dr. Kuldeep Kumar and bears his signature at point A. Same is Ex.PW19/P62. As per the post mortem report the cause of death of Dinesh Kumar is cranio cerebral damage and its complication consequent upon chopped wounds on the head caused by heavy edged weapon. As per post mortem report, all the injuries were ante mortem in nature, recent in duration, homicidal in manner and injury No.1 was State Vs. Rohit Khatri SC No. 237/18 :: 26 ::
individually sufficient to cause death in ordinary course of nature. Dr. Kuldeep also preserved viscera, clothes of deceased, blood in gauze of deceased and after sealing the same handed over to the police along with the sample seal. The testimony of witness has gone unchallenged and uncontroverted.
47. Sh. Ajit Singh was examined as PW-19. He deposed that he is director of Sushila Nursing School situated in street No.9 plot No.109, Gautam Colony, Narela. Inspector Ram Manohar and some other public persons and police officers reached Sushila Nursing School they asked for watching CCTV footage of 31.12.2017. He had installed cameras outside the Sushila Nursing School. There was CCTV footage. After watching the CCTV footage they requested to hand over the DVR as required by them. On the request of police officials he handed over the DVR Hike vision containing the recording of 13.12.2017. The DVR was wrapped in a piece of cloth, sealed and seized vide seizure memo Ex.PW1/P5. He identified the DVR as Ex.MO2. The DVD Ex.1 was played having the footage of 30.12.2017 of Channel No.3 and also the footage of camera No.2 in which two persons are seen. But he was not able to identify those persons and that he had never seen those persons. Both those persons were coming from the side of Safiabad and State Vs. Rohit Khatri SC No. 237/18 :: 27 ::
were going towards Gautam Colony and were coming out of Gautam Colony going towards Safiabad road.
48. During cross-examination by the Ld. Defence Counsel for accused persons he stated that in front of their school Safiabad road connect to the main road and on the side of main road there are some streets and lanes on both sides of the road. Ajit Singh was recalled on the request of Ld. APP for further examination and he proved the certificate u/s 65B Evidence Act as Ex.PW21/P68.
49. During cross-examination by the Ld. Defence counsels he denied the suggestion that he had not given any such certificate or that IO has manipulated the certificate.
50. SI Vijay Kumar was examined as PW20. He deposed that on 13.12.2017 on the directions of SHO and IO inspector Ram Manohar he went in search of accused persons. They reached at H.No.1507 Pana Mammur Pur Narela Delhi. Father of Gaurav met them who informed that his son is not at home. Virender accompanied them to police station. He along with VIrender appeared before the IO who made inquiries from Virender. Virender told that a friend of his son handed over a black colour Intex mobile ECO105 to him. The friend told that Gaurav had given this mobile to him for handing over the same to Virender. Public witness Hitesh and Ct. Amit also joined the investigation with IO. Virender State Vs. Rohit Khatri SC No. 237/18 :: 28 ::
handed over the said mobile phone to the IO. There was an auto call recorder app in the mobile phone. In the folder there was recording of various conversations between Sushil, Shiva and Mota etc. IO heard the conversations between the above named persons. Virender recognized the voice of his son and his friend. Witness Hitesh also recognized the voice of Rohit, Sushil and Gaurav etc. IO picked up the transcript of the conversation dated 13.12.2017 among the above named persons. He obtained the computer generated print out of the conversation running into seven pages Ex.PW1/P4. He identified the mobile phone along with the SIM card and the memory card as Ex.MO1. The MO3 that is the CDI data of MCI is played on the deskdop and he identified that it is the same conversation which he heard on the mobile phone.
51. During cross examination by the Ld. Defence counsels for accused persons he admitted that he had not made any statement to the IO in this case on 30.12.2017. No statement of Virender was recorded in his presence by the IO. He had not told the IO in his statement that Virender told him that friend of his son handed over him black colour mobile Intex mobile ECO105 to him or that friend of Gaurav told Virender that Gaurav had given this mobile phone for handing over the same to Virender. He did not tell the IO in his statement that State Vs. Rohit Khatri SC No. 237/18 :: 29 ::
Virender recognized the voice of his son and his friends and Mukesh recognized the voice of the persons which was found recorded in the mobile phone. He denied the suggestion that Virender and Hitesh had not identified the voices as deposed by him.
52. Inspector Ram Manohar was examined as PW-21. He deposed that on 30.12.2017 vide DD No.60A Ex.PW21/P63 he got information that Dinesh was admitted in the hospital by his friend Arun and doctor had declared him brought dead. He reached Raja Harish Chander Hospital. SI Jeet Ct. Gaurav and Ct. Bhupender met him there. He was informed by SI Jeet that Dinesh has been stabbed at plot of Ram Kishan near Sushila Nursing School, Gautam Colony, Street No.9 Delhi. SI Jeet directed Ct. Gaurav to deposit the dead body in the mortuary of Dr. BSA Hospital. SI Jeet recorded the statement of Hitesh and prepared rukka. Rukka was handed over to Ct. Bhupender at 9:30 pm who left for the police station. He along with SI Jeet complainant Arun and Ravinder reached at the scene of crime. At the spot there was blood on the ground and on the chair. Hair were also found lying on the spot. Hukka and cot were also lying. PSI Punit was on the spot. Mobile crime team reached the spot. Officials of mobile crime team inspected the scene of crime. The photographer took the photographs. Ct. Bhupender State Vs. Rohit Khatri SC No. 237/18 :: 30 ::
came on the spot and handed over the copy of FIR and original rukka to him.
53. The chilam of the hukka was wrapped in the clothe, sealed with the seal of RM. It was given sl.no.1. One blood stained chair make Supreme was found on the spot. It was wrapped in a piece of cloth, sealed with the seal of RM and was given sl.no.2. One blood stained plastic glass was found on the spot. It was wrapped in a piece of cloth, sealed with the seal of RM and was given sl.no.3. Hair found on the spot were lifted, put in a plastic container, sealed with the seal of RM and were given sl.no.4. Blood was lifted in gauze piece, put in a plastic container, sealed with the seal of RM and were given sl.no.5. Blood stained cement was lifted from the spot, put in a plastic container, sealed with the seal of RM and were given sl.no.7. Plain cemented floor was lifted form the spot, put in a plastic container, sealed with the seal of RM and were given sl.no.7. All the seven parcels were seized vide seizure memo ExP2. He prepared the site plan Ex.PW21/P64 at the instance of complainant. He recorded the statement of witnesses. They returned to the police station and he deposited the case property with the MHC(M).
54. On 30.12.2017 on his direction SI Vijay went to the house of Gaurav. SI Vijay returned alongwith Virender, father of Gaurav. He made inquiries from Virender who told that a State Vs. Rohit Khatri SC No. 237/18 :: 31 ::
friend of his son had handed over him one mobile phone make Intex and also told that Gaurav had given him this mobile phone to hand over to Virender. Public witness Hitesh and Ct. Amit also joined the investigation. There was an auto call recording app in the phone. Virender recognized the voice of his son and his friends in the audio files of mobile phone. Hitesh also recognized the voices of Rohit, Sushil and Gaurav etc. Transcript of the same was prepared. The computer print out of the transcript is Ex.PW1/P4. The mobile phone was put in a plastic container sealed with the seal of RM and was seized vide memo Ex.PW1/P2.
55. On 31.12.2017 he went to the mortuary. He prepared the inquest papers Ex.PW21/P65. The dead body was identified by Manish and Sachin. He moved application Ex.PW21/P66 for conducting post mortem. After the post mortem the dead body was handed over to the relatives of the deceased vide memo Ex.PW21/P67. After the post mortem doctor handed over the exhibits along with sample seal to him which he seized vide memo Ex.PW5/P17.
56. On 31.12.2017 a secret informer came to the police station and informed that accused Rahul who had dropped Rohit and Sushil on his motorcycle at Singhu Border after committing the crime is present at his house. He along with SI Jeet, Ct. Amit and secret informer left for Panna Mamur State Vs. Rohit Khatri SC No. 237/18 :: 32 ::
Pur, Narela, Delhi. He corroborated the testimony of PW5 regarding the statement made by Rahul who was found to be juvenile.
57. On 08.01.2018 he along with Ct. Upender, Bhupender and Ravinder went towards the scene of crime. They reached Sushila Nursing School where they met Ajeet Singh Director of the school. They found CCTV installed there. The CCTV was played. There they found that 3 boys riding on a motorcycle going towards the plot of Ram Kishan. They also had seen them coming on the motorcycle after some time. In CCTV footage of another camera two accused persons are visible and identified by Hitesh and Ravinder. After watching the CCTV footage Ajeet Singh was requested to hand over the DVR. Ajeet Singh handed over the DVR. It was wrapped in a cloth, sealed with the seal of RM and seized vide memo Ex.PW1/P5. Ajeet Singh gave the certificate u/s 65 B Evidence Act which is Ex.PW21/P68. Complainant gave the document regarding ownership of the plot which is in the name of Ram Kishan. He seized those documents Ex.PW1/P8 vide memo Ex.PW1/P7.
58. On 09.01.2018 he along with Hitesh Ravinder and Arun came to the court of Ld. MM Sh. Sachin Gupta. He moved application Ex.PW21/P69 for recording the statement of witnesses u/s 164 Cr.PC. Ld. MM recorded the statements State Vs. Rohit Khatri SC No. 237/18 :: 33 ::
of the witnesses which are Ex.PW3/P13, Ex.PW2/P11 and Ex.PW1/P9. He moved application Ex.PW21/P70 for obtaining the copies of statements recorded u/s 164 Cr.PC which was allowed. He obtained the copies of the statements recorded.
59. On 11.01.2018 he received information that all the three accused that is Sushil, Rohit and Gaurav have been arrested by special staff Rohini District by SI Sachin Mann. He collected the copies of the Kalandra. On 12.01.2018 he along with Ct. Bhupender went to Rohini Court Complex where accused Rohit, Satvir, Sushil Kumar and Gaurav were produced. He interrogated the accused persons with the permission of the court and arrested them vide arrest memos Ex.PW7/P19. Ex.PW7/P20 and Ex.PW7/P21 respectively. Accused Rohit made the disclosure statement Ex.PW7/P22. Police custody remand of accused persons was taken. The accused persons made disclosure statements Ex.PW7/P23, P24 and P25. Accused Sushil Khatri led them to the scene of crime and pointed out the same vide memo Ex.PW7/P26. Accused Rohit pointed out the scene of crime vide pointing out memo Ex.PW7/P27. He also corroborated the testimony of PW-7 & PW-8 regarding the recoveries got effected by accused Sushil and Rohit Khatri. He prepared the site plan of the place of recovery of the knife which is Ex.PW21/P71. He State Vs. Rohit Khatri SC No. 237/18 :: 34 ::
handed over his seal of RM after use to Ct. Upender vide memo Ex.PW21/P72. Ct. Bhupender handed over the seal to him vide memo Ex.PW21/P73.
60. On 15.01.2018 the accused persons were produced before the court of Ld. MM and were sent to J/C.
61. On 01.02.2018 he along with Ct. Naveen went to the scene of crime where Ct. Naveen took the measurements and prepared rough notes. On 12.02.2018 Ct. Naveen prepared the scale site plan Ex.PW10/P-32 which he placed on the record.
62. On 21.03.2018 he moved application Ex.PW21/P-73 for taking the voice samples of the accused Sushil, Rohit and Gaurav but the accused persons refused to give their voice samples.
63. On 04.04.2018 witness Arun came to the police station and produced his motorcycle No. DL 11SB 6413 along with the key and copy of RC which was seized vide seizure memo Ex.PW2/P10. He also collected the copy of kalandra Ex.PW11/P44. He also collected the FSL results along with the certificate already Ex.PW14/P54, P55, P56, P57, P58, P59 & Ex.PW16/P60 and Ex.PW17/P61.
64. On 20.07.2018 he moved application for subsequent opinion about the weapon of offence. The autopsy surgeon gave the opinion Ex.PW21/P74. The photograph of the State Vs. Rohit Khatri SC No. 237/18 :: 35 ::
weapon of offence is Ex.PW21/P75. He placed the same on the record. He identified the accused persons and also the case property.
65. On 02.08.2018 he recorded statement of Yogesh Bhardwaj and Bharat Bhardwaj regarding the mobile number used by the accused persons. He also collected the copies of customer application form, CDR of the relevant phone numbers. He prepared the supplementary charge sheet and filed the same.
66. During cross examination by the Ld. Counsels for the accused persons he deposed that he reached hospital at about 8:30 pm. He remained in the hospital for about an hour. He made inquiries from the public persons present in the hospital. He left the hospital at about 9:35 pm. He reached the spot at about 9:45 pm. He denied the suggestion that knife was found on the spot which was later on planted upon the accused persons to falsely implicate them in the present case. He denied the suggestion that he did not prepare site plan at the instance of Hitesh or that signature of Hitesh were obtained on the blank papers which were later on converted into various false documents. He denied the suggestion that the case property seized from the spot was tampered.
67. The clothes of deceased were blood stained but he State Vs. Rohit Khatri SC No. 237/18 :: 36 ::
cannot say whether the clothes of witness who removed the deceased to hospital were stained with blood or not. The clothes of those persons were not seized or sent to FSL for comparison.
68. They came to know that Rahul is juvenile on 02/03 January 2018. He did not visit the house of Virender Bhardwaj. SI Vijay visited the house of Virender Bhardwaj. SI Vijay did not prepared any handing over memo of the mobile phone which was handed over by Virender Bhardwaj. No statement of Virender Bhardwaj was recorded with respect to handing over his mobile phone. No assistance from any specialist was taken as the conversation was in Hindi. He admitted that in the charge sheet it is not mentioned that conversation was listen by Virender Bhardwaj who recognized the voices. He denied the suggestion that the voices were not recognized by Hitesh, Arun and Ravinder or that they were not present at the time of seizure of the DVR. He admitted that the area covered by the CCTV camera is about 20 to 25 feet from the place of occurrence. There are few streets connecting the main street which are not in the frame of the CCTV camera. He does not know if there is any GYM situated in that street.
69. On 13.01.2018 they left the police station at around 11:00 or 12:00 am. Ct. Bhupender Ct. Tilak Raj were also State Vs. Rohit Khatri SC No. 237/18 :: 37 ::
with him along with two accused Sushil and Rohit. He admitted that Gaurav Bhardwaj remained in the police station during this time and was neither taken to the scene of crime nor Singhu village. They were in private car owned by him. They reached the scene of crime at about 12:00 noon. They remained on the spot for about 30 minutes. He prepared the pointing out memo separately at the instance of accused persons.
70. They reached near Singhu village turning at about 3:30 pm. No public person stopped there. Public persons were passing from the road. He asked the public persons to join but none agreed. He denied the suggestion that black colour lower shown to have been recovered at the instance of accused is that of witness Arun who removed the injured Dinesh to the hospital or that Arun handed over his lower to him on the day of incident itself. There were blood stains on the knife and the lower. The sketch of knife was prepared after keeping it on paper. He admitted that no blood stains or dust came on the paper. He denied the suggestion that the case property was tampered or that he pressurized Bharat Bhardwaj or Yogesh Bhardwaj to depose against the accused persons.
71. ASI Mahipal Singh was examined as PW-22. On 30.12.2017 he was working as duty officer at PS: Narela. On State Vs. Rohit Khatri SC No. 237/18 :: 38 ::
that day at 9:50 pm Ct. Bhupender brought the rukka sent by SI Ajeet Singh. He got entered the rukka in the computer and proved the copy of FIR as Ex.PW22/P77. He made endorsement regarding registration of FIR on the rukka Ex.PW22/P76. He proved the certificate u/s 65B Evidence Act as Ex.PW22/P78. Nothing material came on record to discredit the witness during the cross examination by the Ld. Defence counsels.
72. HC Palvinder Singh was examined as PW-23. He was working as MHC(M). He proved the entries in register No.19 as Ex.PW23/P79 to Ex.P23/P84. He proved the entries in register No.21 as Ex.PW23/P85, Ex.PW23/P87, Ex.PW23/P88, Ex.PW23/P89. He proved the acknowledgment of FSL as Ex.PW23/P86, Ex.PW23/P90, Ex.PW23/P91 and Ex.PW23/P92. He deposed that the during the period exhibits remained in his possession no one tempered the same in any manner.
73. During cross examination by the Ld. Defence counsel nothing came on record to discredit the witness.
74. Ct. Amit was examined as PW-24. He deposed that on 28.02.2018 on the direction of IO & SHO he received 14 sealed parcels along with sample seal from HC Palvinder for depositing the same in FSL vide RC's No.99/21/18, 100/21/18 & 101/21/18 Ex.PW23/P87, Ex.PW23/P88 & State Vs. Rohit Khatri SC No. 237/18 :: 39 ::
Ex.PW23/P89. He deposited the same in FSL and obtained the acknowledgments. He returned to the police station and handed over the copies of RC and acknowledgement to the MHC(M). During the period exhibits remained in his possession no one tampered with the same in any manner.
75. Nothing material came on record to discredit the witness during cross examination by the Ld. Defence counsels.
76. Dr. Deepak Prakash was examined as PW-25. He deposed that on 20.07.2018 a request was received from the IO to give subsequent opinion with respect to weapon of offence. One sealed parcel having seal of FSL SP Delhi was received along with the request. The seals were intact. The parcel was opened. It was found containing one knife. He took the photograph of the same which is Ex.PW21/P75.
After perusal of the post mortem report and the knife he opined that the injuries mentioned on the P.M Report Ex.PW19/P62 could be possible by the weapon examined. He proved the report as Ex.PW21/P74. The testimony of the witness has gone unchallenged and uncontroveted.
77. Dr. Ashish Chaudhary from Sharda Hospital was examined as PW-26. He deposed that he does not know why he has been called. He was cross examined by Ld. APP wherein he deposed that he does not remember if any State Vs. Rohit Khatri SC No. 237/18 :: 40 ::
person by the name of Dinesh was brought to their hospital on 30.12.2017 or that he gave first aid to him and then referred to SRHC Hospital. The testimony of witness has gone unchallenged and uncontroverted.
78. Ct. Amit Kumar was examined as PW-27. He deposed that on 26.02.2018 he collected one sealed parcel from MHC(M) on the direction of IO vide RC No.91/21/18. He deposited the parcel in the FSL and obtained the acknowledgement. On return to the police station he handed over the acknowledgement to the MHC(M). The photocopy of the RC is Ex.PW23/P85. The photocopy of the acknowledgement is Ex.PW23/P86. Nobody tampered with the case property till it remained in his possession. The testimony of the witness has gone unchallenged and uncontroverted.
79. Sh. Pawan Singh, Nodal Officer Vodafone Idea was examined as PW-28. He proved the record of mobile phone No.9654184905. According to the record it was issued in the name of Dinesh Kumar s/o Sh. Krishan Kumar R/o H.No.67, Behind Hari Narayan Mandir Pana Mamur pur. He proved the computer generated copy of customer application form as Ex.PW28/P93. The call detail record of this number for the period 25.12.2017 to 10.01.18 is proved as Ex.PW28/P94. The certificate u/s 65B Evidence Act is proved as State Vs. Rohit Khatri SC No. 237/18 :: 41 ::
Ex.PW28/P95. The testimony of witness has gone unchallenged and uncontroverted.
80. Israr Babu, alternate Nodal Officer was examined as PW-29. He proved the record of mobile phone No.9643120097. According to the customer application form this number was issued in the name of Sushil Khatri S/o Sh. Nahar Singh R/o H.No.116 Nai Basti, Panna Mamur Pur, near Hanuman Mandir, Narela Delhi. The computer generated copy of the customer application form is proved as Ex.PW29/P96. The call detail record of this number for the period 25.12.2017 to 10.01.2018 is proved as Ex.PW29/P97. The certificate u/s 65B Evidence Act is proved as Ex.PW29P98.
81. He has also proved the record of mobile phone number 9711723754. As per the customer application form this number was issued in the name of Bharat Bhardwaj S/o Raj Bahadur r/o H.No.43 Nai Basti Panna Mamur Pur near Hanuman Mandir Narela Delhi. The photocopy of the customer application form is proved as Ex.PW29/P99. Photocopy of driving licence annexed with the customer application form is proved as Ex.PW29/P100. The call detail record of this number for the period 25.12.2017 to 10.01.2018 is proved as Ex.PW29/P101. The certificate u/s 65B Evidence Act is proved as Ex.PW29/P102. State Vs. Rohit Khatri SC No. 237/18 :: 42 ::
82. He has also proved the record of mobile phone No:9643120097 as per the customer application form this number was issued in the name of Sushil Khatri S/o Sh.
Nahar Singh R/o H.No.116 Nai Basti Panna Mamur Pur near Hanuman Mandir Narela Delhi. He proved the photocopy of the customer application form as Ex.PW29/P103. The photocopy of the Aadhar card annexed with the customer application form is proved as Ex.PW29/P104. The call detail record of this number for the period 25.12.2017 to 10.01.2018 is proved as Ex.PW29/P105. The certificate u/s 65B Evidence Act is proved as Ex.PW29/P106. The testimony of witness had gone unchallenged and uncontroverted.
83. Sh. Chander Shekhar Nodal Officer, Bharti Airtel Ltd., was examined as PW-30. He proved the record of mobile phone number 9958558382. As per the customer application form this number was issued in the name of Sushil S/o Sh. Nahar Singh R/o H.No.116 Nai Basti Pana Mamur Pur near Hanuman Mandir Narela. The photocopy of the customer application form is proved as Ex.PW30/P107. The photocopy of the passport annexed with the customer application form is proved as Ex.PW30/P108. The call detail record of the above said number for the period 25.12.2017 to 10.01.2018 is proved as Ex.PW30/P109. The computer generated copy State Vs. Rohit Khatri SC No. 237/18 :: 43 ::
of the cell ID chart is proved as Ex.PW30/P110. The certificate u/s 65B Evidence Act is proved as Ex.PW30/P111. The testimony of the witness has gone unchallenged and uncontroverted.
84. HC Ram Avtar was examined as PW-31. He deposed that on 30.12.2017 he was working on extension No.136 in CPCR PHQ. On that day at 19:09:38 hours a call was received from mobile phone No.7827757342 that, "Gali No.9 at Kids School ke paas, Sanjay Colony Narela ek lady ko chaaku maar diya". He entered this data in PCR form and flashed the message at 19:13:53 hours. He proved the computer generated copy of PCR form as Ex.PW31/P112. The testimony of witness has gone unchallenged and uncontroverted.
85. Sh Bharat Bhardwaj was examined as PW-32. He deposed that he purchased the SIM of mobile No.9711723754 from Vodafone Company. He got it converted into post paid to prepaid and used the same for some time. Thereafter, his SIM was misplaced. He purchased this SIM vide customer application form Ex.PW29/P99 having his photograph at point X and his signature at point B. The photocopy of his driving licence annexed with the customer application form is Ex.PW29/P100.
State Vs. Rohit Khatri SC No. 237/18 :: 44 ::
86. He was cross examined by Ld. APP as he resiled from his earlier statement recorded by the police.
87. During cross examination he admitted that accused Gaurav Bhardwaj S/o Sh. Virender Bhardwaj is a resident of village Narela. He also correctly identified him. He denied the suggestion that Gaurav Bhardwaj is his child hood friend. He also denied the suggestion that Gaurav Bhardwaj was using his sim having mobile phone number 9711723754. He had denied the suggestion that he also knew accused Rohit Khatri @ Shiva and Sushil Kumar who are friends of Gaurav Bhardwaj. He admitted that he did not lodged any complaint that his SIM card has been misplaced.
88. No question was put to the witness by the Ld. Defence counsel.
Court question was put to him: As to what mobile phone number was he using after the above said mobile phone number was misplaced?
Ans. He deposed that after this number was misplaced for a long time he did not use any mobile phone number. Later on he started using mobile phone No.9870444833.
89. Sh. Yogesh Bhardwaj was examined as PW-33. He deposed that his brother Mudit Bhardwaj had purchased SIM of mobile No.7982140950 of JIO company by using his ID. The customer application form of the JIO is Ex.PW33/P113 State Vs. Rohit Khatri SC No. 237/18 :: 45 ::
having photograph of his younger brother Mudit Bhardwaj at point X. His younger brother Mudit is studying in Banglore. He does not know who is using the above said mobile phone number.
90. Ld.APP cross examined the witness as he resiled from his earlier statement.
91. During cross examination by Ld. APP he denied the suggestion that accused Rohit Khatri is friend of his younger brother Mudit Bhardwaj or that this mobile number was used by Rohit Khatri. No question was put to witness by the defence in the cross examination.
92. Sh. Mudit Bhardwaj called as court witness and was examined as CW-1. He deposed that he had not purchased the SIM of mobile phone No.7982140950 of JIO company by using his ID. The customer application form of JIO Ex.PW13/P113 is having his photograph at point X.
93. During cross examination by APP for the State he deposed that he knew Rohit Khatri by face he is his co- villager. He does not know if Rohit Khatri is using mobile No.7982140950. He had not handed over his mobile phone number to Rohit Khatri. He denied the suggestion that Rohit Khatri is his friend or that the above mentioned mobile phone number was used by Rohit Khatri. No question was put to the witness by defence.
State Vs. Rohit Khatri SC No. 237/18 :: 46 ::
94. Thereafter, prosecution evidence was closed. Statement of accused persons were recorded u/s 313 Cr.PC wherein they denied the entire evidence. They did not wish to lead evidence in defence and thereafter the case was fixed for final arguments.
95. I have heard the Ld. APP for the state, Ld. Defence counsels for accused persons and perused the record.
96. Present case is based upon the eye witness and also circumstantial evidence. Firstly I take up the case based upon the eye witnesses. As per the story Hitesh PW1, Arun PW2 and Ravinder PW3 were present in the room at the time of incident. Dinesh was attacked in their presence. Hitesh and Arun deposed that Dinesh was attacked in their presence but both of them stated that the accused persons i.e. Rohit Khatri and Sushil did not attack Dinesh in their presence rather PW1 stated that Rohit and Sushil reached at the place of incident later on. PW3 Ravinder deposed that he was sitting in the Varanda and the incident took place in the room. On hearing the cry "mar diya" he reached inside. He also could not identify the assailants. Eye witnesses PW1, PW2 and PW3 were cross examined by Ld. Addl. PP but they did not support the prosecution case at all. The accused persons were also pointed out to them that they assaulted Dinesh with the knives but they did not support State Vs. Rohit Khatri SC No. 237/18 :: 47 ::
the prosecution case. Keeping in view the testimony of PW1, PW2 and PW3 in my opinion the prosecution has failed to prove and establish the guilt of the accused persons. There is no other eye witness of the case. As per the prosecution case Mohit reached the spot after the incident had already taken place and he only removed the injured to the hospital.
97. It is settled law that a person can be held guilty and convicted even in the absence of eye witness on the basis of circumstantial evidence. The Hon'ble Supreme Court of India in the case titled as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 had laid down the following principles:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully 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 a 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 State Vs. Rohit Khatri SC No. 237/18 :: 48 ::
with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
98. In the present case prosecution intends to establish the guilt of the accused by proving the following circumstances:-
i). Circumstance of recovery of knife.
ii). Circumstance of recovery of blood stained lower
of accused Sushil.
iii). CCTV footage
99. I take up all the circumstances one by one. Circumstance of recovery of knife:
100. In this case as per story of prosecution the assailants assaulted Dinesh with knives and then fled away. When accused persons were apprehended the accused Rohit made disclosure statement Ex. PW7/P23 that he can get recovered the knife used in the commission of offence. Rohit got recovered the knife vide memo Ex. PW7/P30. The knife has been identified as Ex. MO14 by the witness as the same knife which the accused Rohit Khatri got recovered. The sketch of the knife is proved on record as Ex. PW7/P29. The witnesses examined by the prosecution to prove this recovery have fully corroborated and supported each other but the eye witnesses i.e. PW1 and PW2 specifically stated State Vs. Rohit Khatri SC No. 237/18 :: 49 ::
in their examination in chief that one of the knife was left on the spot by the assailants while fleeing from there. No doubt this fact is not mentioned in the statement of Hitesh Ex. PW1 on the basis of which FIR was registered. The statement of Hitesh was recorded U/s 161 Cr.P.C. and same is Ex. PW1/P12. In that statement also Hitesh has mentioned that when the assailants were fleeing one knife was dropped on the scene of crime. This statement clearly shows that this fact introduced by the witness while deposing before the Ld. MM. The prosecution is silent about knife which was dropped by the assailants on the spot while fleeing from the spot. Under the circumstance the alleged recovery of knife at the instance of accused Rohit Khatri itself becomes doubtful. Knife was also sent to FSL for analysis. Report Ex. PW16/P60 shows that blood was detected on the knife but it is not clear whether the blood is of human origin or not. DNA could not isolated from the blood found on the knife and therefore it cannot be said with certainty that this knife was used in commission of crime. Keeping in view the above discussion that firstly recovery itself is doubtful secondly the blood is not detected on the knife in my opinion prosecution has failed to prove and establish the circumstance. Circumstance of recovery of blood stained lower of accused Sushil.
State Vs. Rohit Khatri SC No. 237/18 :: 50 ::
101. Ld. PP submits that as the injuries on the person of Dinesh were caused with knives therefore the wearing clothes of the accused persons were stained with blood. Accused Sushil led the police team to the road leading to Singhu village from National Highway 1 and from the bushes got recovered one black colour lower of the track pant Ex.M4/12. This lower was wrapped in cloth sealed with the seal of RM and seized vide memo Ex. PW7/P28. Prosecution in order to prove this recovery examined Ct. Bhupender as PW7, Ct. Tilak Raj as PW8 and Inspector Ram Manohar as PW 21. All the three witnesses have fully supported and corroborated each other. Ld. PP submits that efforts were made to join the public witnesses but none agreed. Ld. PP submits that despite efforts no public witness could be joined, therefore merely due to this reason the testimony of the witnesses cannot be discard. Even otherwise they are reliable, trustworthy and inspire confidence. Ld. PP further submits that as all the three witnesses are consistent therefore so far as recovery of lower is concerned that circumstance stands established. Ld. PP submits that this recovery proves the guilt of accused as there was blood stain and also linked him with the commission of offence.
102. Ld. Defence counsel submits that no such recovery State Vs. Rohit Khatri SC No. 237/18 :: 51 ::
was effected. It was planted upon the accused that is why no public person was joined at the time of alleged recovery. Ld. Counsel further submits that according to the prosecution case the lower was having blood stains. The lower was sent to the FSL for biological and DNA examination. The report has been proved on record as Ex. PW16/P60. In the report the lower has been referred as Ex. 9. As per the biological examination blood could not be detected on the lower which clearly shows that this lower was not used or worn by the accused at the time of commission of offence. No detection of blood itself shows that even if this recovery is believed that does not link the accused with the commission of offence. Ld. Counsel prayed that the onus which was on the prosecution has not been discharged, therefore the benefit be given to the accused.
103. After hearing the arguments and going through the record, I found that the prosecution has examined three witnesses i.e. PW7, PW8 and PW21 to prove the recovery. All the three witnesses are consistent and also corroborated each other. They also deposed that efforts were made to join the public witnesses but none agreed. At the same time the testimony of PW2 is also to be taken into consideration who during the cross examination by the defence has stated that "it is correct that my black lower / pyjama stained with State Vs. Rohit Khatri SC No. 237/18 :: 52 ::
blood while taking injured Dinesh to the hospital and lower was taken by the police on the same very day".
104. If testimony of PW2 is to be believed then police had taken the lower of PW2 on the day of incident. As per FSL report Ex. PW16/P60 there are only two lowers one lower was handed over to the IO by the doctor after postmortem sealed in parcel with the seal of Dept of FM. The BSAH of GOVT. OF DELHI. The second lower is referred as Ex. 9 in this report. There is no third lower sent to FSL. According to the investigation and testimony of PW2 there should have been three lowers if PW2 is to be believed that is the lower of PW Arun, lower got recovered by Sushil and the lower of deceased. But the record does not support the same meaning thereby that the recovery allegedly at the instance of Sushil is doubtful.
105. Even otherwise according to the prosecution case there were blood stains on this lower. The lower was examined by the biological department of FSL and no blood was detected on the lower. Therefore in my opinion even if the recovery of the lower at the instance of Sushil is believed for the sake of arguments even then it does not link him with the commission of offence. The onus was on the prosecution not only to prove the recovery but also that it links him with the commission of offence which the prosecution has failed. State Vs. Rohit Khatri SC No. 237/18 :: 53 ::
The onus which was on the prosecution is not discharged and the circumstance is not established.
CCTV footage
106. In this case prosecution has seized the DVR of the cameras installed outside Sushila Nurshing School vide memo Ex. PW1/P5. Prosecution has examined Ajit Singh, the Director of the Sushila Nursing School as PW19, Ct. Bhupender PW7, Hitesh PW1, Devender PW3 and the IO as PW21 to prove the recovery. Ajit Singh statd that he handed over the DVR. It is also proved on record by FSL report Ex. PW15/P58 and PW14/P55 that the video files are continuous footage of CCTV recordings. There is no indication of alteration in continuous footages on the basis of frame by frame analysis using Video Analysis System. The onus was upon the prosecution firstly to establish that the person visible in the CCTV footage are accused Rohit and Sushil. The two important witnesses examined by prosecution in his case are PW1 Hitesh and PW3 Ravinder both these witnesses failed to identify the persons visible in the CCTV footage. Even Ajit Singh PW19 also failed to identify the persons visible in the CCTV footage. Onus was upon the prosecution to prove that the persons visible in CCTV footage are none but Rohit and Sushil Kumar only. The prosecution has failed to prove this fact. It is already in the State Vs. Rohit Khatri SC No. 237/18 :: 54 ::
evidence that from the place where two persons are visible in the CCTV footage at the place of incident in between there are two more streets bifurcating from that street. Therefore it is not necessary that the persons visible in that CCTV footage would only reach the place of incident under the circumstance in my opinion this CCTV footage does not point or link the accused persons with the commission of offence. In view of above discussion in my opinion the circumstance is not proved.
107. So far as the evidence for the consipiracy hatched between Rohit Khatri, Sushil Kumar and Gaurav Bhardwaj is concerned prosecution heavily relied upon the conversation recorded in the Mobile, Phone Make Intex Ex.MO1. According to the prosecution, mobile no. 9711723754 was used in this phone. The onus was upon the prosecution to prove that this number was used by Gaurav Bhardwaj. Prosecution in order to prove and establish this fact examined Bharat Bhardwaj as PW-32. Mobile No. 9711723754 was issued in his name by Vodaphone vide customer application form Ex.PW29/P99. He stated that sim was misplaced. He was cross-examined by Ld. Add. PP that he has handed over his sim to Gaurav Bhardwaj but he denied the suggestion. There is no other witness to show that this number was used by Gaurav Bhardwaj, hence, I State Vs. Rohit Khatri SC No. 237/18 :: 55 ::
found that it is not established.
108. Prosecution further alleged that on this number the other two accused talked with Gaurav and conversation between them was recorded in the mobile phone as there was auto record App in the mobile phone. The onus was upon prosecution that the conversation was only of Gaurav, Sushil and Rohit Khatri. According to the prosecution case when the conversation as heard at that time Hitesh identified that these are voices of the accused persons but he did not support the prosecution. Voice samples of the accused persons could not be taken for comparison. The other witness who recognized the voices was Virender, father of the Gaurav Bhardwaj. He has not been cited as witness. Under the circumstances, in my opinion the prosecution has failed to prove and establish that the conversation was only between the accused persons only. Even otherwise after considering the entire conversation transcript which is proved on record as Ex.PW1/P4.
109. The incriminating portion in the entire transcript as pointed out by Ld. PP is as follows:
Sushil - ho gaya kaam aur khule main kati sabke samne hoa hai karva.
Gaurav - Kit se.
Sushil - Motercycle ka jugad kar State Vs. Rohit Khatri SC No. 237/18 :: 56 ::
Gaurav - Theek hai theek hai.
110. Even if, this is considered as conversation between accused Sushil and Gaurav from this it cannot be inferred that they are talking about murder only. Therefore, keeping in view the fact that there is no evidence that this conversation is only between the accused persons and from this it is also not clear that they agreed to commit murder of Dinesh. In my opinion, the prosecution has failed to prove that there was any conspiracy hatched between accused persons. There is no other evidence to prove on record that there was any conspiracy hatched.
111. Besides the above circumstances and the evidence, there is also evidence that accused Rohit and Sushil pointed out the place of occurrence. The place of occurrence was already in the knowledge of the police before it was pointed out by the accused persons. The accused are also resident of the same village. Therefore, merely because they pointed out the place of occurrence does not by itself show that they have special knowledge of place of occurrence because they committed the offence. Therefore, in my opinion, this pointing out of the place of occurrence by the accused persons is of no help to the prosecution.
112. Keeping in view the above discussion on various circumstances, as the circumstances are not proved and State Vs. Rohit Khatri SC No. 237/18 :: 57 ::
established, the chain is not complete and the prosecution has failed to establish any circumstance pointing towards the guilt of the accused, the accused persons are acquitted of the charge. They be released on furnishing bail bound of Rs. 30,000/- with one surety each in the like amount under Section 437 A Cr.PC for a period of 6 months. File be consigned to record room.
VIRENDER Digitally signed
by VIRENDER
KUMAR KUMAR BANSAL
Date: 2018.11.15
Announced in the open court BANSAL 16:14:10 +0530
today on 15th November' 2018 (VIRENDER KUMAR BANSAL)
ASJ/Pilot Court/North District
Rohini Courts/New Delhi.
State Vs. Rohit Khatri SC No. 237/18 :: 58 ::