Delhi District Court
State vs . (1) Sanjay Dhankad @ Nakli on 20 May, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 51/2013
Unique Case ID No.: 02404R0078652011
State Vs. (1) Sanjay Dhankad @ Nakli
S/o Sat Narain
R/o House No. 94,
Raj Pura Gur Mandi,
PS Model Town, Delhi
(Convicted)
(2) Bhagwan Sahai @ Chintu
S/o Narain Singh
R/o Jhuggi No. T84, 206,
Raj Pura Gur Mandi,
PS Model Town, Delhi
(Convicted)
(3) Mohan Singh @ Bunty
S/o Sh. Narender Singh
R/o 146, DTC Colony,
Rana Pratap Bagh, Delhi
(Convicted)
FIR No.: 440/2010
Police Station: Mukherjee Nagar
Under Sections: 302/325/34 Indian Penal Code
Date of committal to session court: 5.4.2011
Date on which orders were reserved: 7.5.2014
Date on which Judgment pronounced: 7.5.2014
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 1
JUDGMENT:
(1) As per allegations on 10.12.2010 at about 3:00 PM at Hudson lane, DDA Market, on the road all the three accused i.e. Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty in furtherance of their common intention assaulted Manoj @ Vicky and caused head injury to him as a result of which Manoj @ Vicky died due to shock and cranio cerebral damage on account of multiple fracture and head injury. BRIEF FACTS/ CASE OF THE PROSECUTION (2) The case of the prosecution is that on 10.12.2010 at 3:34 PM vide DD No. 25A an information regarding a quarrel at Hudson Lane Complex, DDA Market was received in the Police Station Mukherjee Nagar. At 3:55 PM DD No. 26A another information was received from PCR Call that a snatcher had been beaten by the police and he was bleeding. Both the said DDs were entrusted to SI Inderpal who along with Ct. Parmod reached near the place of incident i.e. Hudson Lane, DDA Market where they came to know that the PCR Van had taken the injured to BJRM Hospital and there was no eye witness at the spot. Thereafter SI Inderpal along with Ct. Parmod reached BJRM Hospital where they found the injured Manoj @ Vicky admitted and the doctor declared him fit for statement. SI Inderpal then recorded the statement of Manoj @ Vicky wherein he informed the police that on 10.12.2010 at about 3:00 PM he along with his friends Kapil Dagar and Anis Raj were standing on the road of Hudson Lane Complex St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 2 Market when Bhagwan Sahai @ Chintu and Sanjay @ Nakli came there and assaulted him with dandas on his forearms and legs after which the PCR shifted him to the BJRM Hospital. On the basis of the above statement of Manoj @ Vicky initially the FIR was registered under Section 325/34 IPC. (3) Thereafter on 10.12.2010 the accused Bhagwan Sahai and Sanjay Kumar were arrested and released on bail, the offences invoked being of bailable nature and search for third accused Mohan Singh @ Bunty was made but he was absconding. According to the prosecution on 15.10.2010 on receipt of medical opinion regarding nature of injuries from Shushrut Trauma Center Section 308 IPC was added, though as per record the accused were not again arrested thereafter on invocation of non bailable oand aggravated provisions. However, the injured Manoj @ Vicky succumbed to injuries and was declared dead on 18.12.2010 after which the provisions of Section 302 IPC were added. On 19.12.2010 postmortem examination on the dead body of the deceased Manoj @ Vicky was conducted at Mortuary, BJRM Hospital. Again on 21.12.2010 accused Sanjay Kumar and Bhagwan Sahai were arrested and remanded to Judicial Custody. During the course of investigations statement of witnesses Kapil Dagar, Anis Khan, Chandan Kumar, Rajender Singh, B.S. Mehta, Raju Mathur, Rajeev Saini and Devraj were recorded from which it was evident that accused Sanjay, Bhagwan Sahai and Mohan Singh had inflicted injuries to the deceased Manoj Kumar with dandas and flower pot as a result of which he succumbed to injuries. The accused Mohan Singh @ Bunty was St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 3 absconding and hence initially the charge sheet was filed against the accused Bhagwan Sahai @ Chintu and Sanjay @ Nakli.
(4) On 8.4.2011 the accused Mohan Singh @ Bunty surrendered before the Court of Ld. MM after which he was formally arrested in this case. Thereafter supplementary charge sheet was filed against the accused Mohan Singh @ Bunty in the Court.
CHARGE:
(5) Charges under Section 302 read with 34 Indian Penal Code were settled against the accused Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty to which they pleaded not guilty and claimed trial.
(6) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
Prosecution witnesses Sr. PW No. Name of the witness Details of the witness No.
1. PW1 Dr. Neeraj Mishra Witness from BJRM Hospital who has proved the MLC of victim
2. PW2 HC Arvind Kumar Police Witness - Duty Officer
3. PW3 W/ HC Ranjna Police Witness - Duty Officer
4. PW4 Dev Raj Public witness - an eye witness to the incident
5. PW5 Anis Raj Public witness - friend of the deceased and an eye witness to the incident St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 4
6. PW6 Kapil Dagar Public witness - friend of the deceased and an eye witness to the incident
7. PW7 B. S Mehta Public witness who has proved the incident but turned hostile on the identity of the accused
8. PW8 SI Prem Singh Police witness who has proved the record of PCR
9. PW9 W HC Parwati Police witness - PCR van incharge
10. PW10 SI Tarun Kumar Police witness who has proved the seizure of exhibits of the deceased
11. PW11 Insp. Mahesh Kumar Police witness Draftsman
12. PW12 SI Ranbir Singh Police witness who had joined investigations with the Investigating Officer
13. PW13 Dr. Satyendra Kumar Witness from Sushruta Trauma Center
14. PW14 Ajay Kumar Public witness - elder brother of the decease
15. PW15 Rajesh Patel Public witness - brother in law/ Jija of the deceased
16. PW16 Dr. V K Jha Autopsy Surgeon
17. PW17 Dr. R S Mishra Witness from BJRM Hospital
18. PW18 Ajay Kumar Public witness - friend of the deceased
19. PW19 Rajiv Saini Public witness - an eye witness to the incident
20. PW20 Raju Mathur Public witness who has turned hostile on the incident and identity of the accused
21. PW21 Chandan Kumar Public witness - friend of the deceased and an eye witness to the incident
22. PW22 Ct. Pramod Kumar Police witness who had joined investigations with SI Inderpal
23. PW23 Ct. Sanjay Police witness who had joined investigations with SI Inderpal
24. PW24 Insp. Rajesh Dahiya Investigating Officer of the case
25. PW25 Inspector Subash Police witness who had filed the charge sheet in the Court
26. PW26 SI Inderpal Singh Initial Investigating Officer
27. PW27 Sh. Rajender Singh Public witness who has turned hostile on the identity of the accused persons St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 5 List of documents exhibited Sr. Exhibit No. Details of document Proved by No.
1. PW1/A MLC of injured Manoj @ Vicky Dr. Neeraj Mishra
2. PW2/A Copy of FIR HC Arvind Kumar
3. PW2/B Endorsement on Rukka
4. PW3/A DD No. 25A W/HC Ranjana
5. PW3/B DD No. 26A
6. PW3/D1 DD No. 12A
7. PW3/D2 DD NO. 32A
8. PW4/D1 Statement u/s. 161 Cr.P.C. Dev Raj
9. PW5/A Site Plan Anis Raj
10. PW5/B Arrest memo of Bhagwan Sahai
11. PW5/C Personal search memo
12. PW5/D1 Statement u/s. 161 Cr.P.C.
13. PW6/A Disclosure statement of Sanjay Dhankad Kapil Dagar
14. PW6/D1 Statement u/s. 161 Cr.P.C.
15. PW7/A Statement u/s. 161 Cr.P.C. B. S Mehta
16. PW8/A PCR Form SI Prem Singh
17. PW8/B PCR Form
18. PW8/C PCR Form
19. PW8/D PCR Form
20. PW/1 Affidavit of evidence of W HC Parwati W/HC Parwati
21. PW10/1 Affidavit of evidence of SI Tarun Kumar SI Tarun Kumar
22. PW10/A Seizure memo of Exhibits of deceased
23. PW11/1 Affidavit of of evidence of Inspector Inspector Mahesh Mahesh Kumar Kumar
24. PW11/A Site plan
25. PW12/1 Affidavit of evidence of SI Ranbir Singh SI Ranbir Singh
26. PW12/A Arrest memo Bhagwan Sahai St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 6
27. PW12/B Personal Search memo
28. PW12/C Arrest memo of Sanjay
29. PW12/D Personal search memo
30. PW13/A Death Report Dr. Satyendra Kumar
31. PW13/B Death Summary
32. PW14/A Dead Body Identification Statement
33. PW14/B Dead Body handed over memo
34. PW14/DX1 Statement u/s. 161 Cr.P.C.
35. PW15/A Dead Body Identification Statement Rajesh Patel
36. PW16/A Postmortem Report Dr. V K Jha
37. PW17/A MLC No. 18767 Dr. R S Mishra
38. PW18/DX1 Statement u/s. 161 Cr.P.C. Ajay kumar
39. PW19/DX1 Statement u/s. 161 Cr.P.C. Rajiv Saini
40. PW20/DX1 Statement u/s. 161 Cr.P.C. Raju
41. PW21/DX1 Statement u/s. 161 Cr.P.C. Chander Kumar
42. PW22/A Statement of Manoj Kumar Ct. Pramod Kumar
43. PW22/B Endorsement on statement
44. PW22/C Disclosure statement of Bhagwan Sahai
45. PW22/DX1 Statement u/s. 161 Cr.P.C.
46. PW23/A Arrest memo of Sanjay Ct. Sanjay
47. PW23/B Personal search memo
48. PW23/C Memo of Surety bond
49. PW24/A Brief facts Insp. Rajesh Dahiya
50. PW24/B Form 25:35
51. PW24/C Request for Postmortem
52. PW24/D Arrest memo of Mohan Singh
53. PW24/E Personal search memo
54. PW24/F Disclosure statement
55. PW26/A Application to CMO for opinion SI Inderpal Singh
56. PW27/PX1 Confronted statement Rajender Singh St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 7 EVIDENCE:
(7) In order to prove its case the prosecution has examined as many as Twenty Seven witnesses as under:
Eye witnesses/ Public witnesses:
(8) PW4 Devraj, a resident of 41, Priyadarshani Vihar, is an eye witness to the incident. He has deposed that he is in the business of supply of readymade garments and he alongwith his friend Rajeev Saini frequently used to visit DDA Market, Hudson Lane in afternoon after finishing his work for taking tea or for smoking. He has also deposed that on 10.12.2010, at about 3.00 PM, he alongwith his friend Rajeev Saini was taking tea at Sainik Snacks, Hudson Lane, DDA Market where he saw that just in front of the Sainik Snacks shop, some hot talks were going on between some boys and thereafter, he saw that two boys started beating one boy with Dandas and that boy was trying to save himself from the Danda blows with his hands. According to the witness, two other boys were trying to rescue the said boy and the owner of Sainik Snacks and one more shopkeeper also tried to intervene. Meanwhile, one more associate of the assailants came there and he also joined his associates and started giving beatings to the said boys. The witness has further deposed that the persons, who were trying to intervene to rescue the said boy were threatened by the said three assailants and Dandas were shown to them, St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 8 as such none came forward and they all gave beatings to the said boy mercilessly. He has also deposed that the third boy, who had joined his associates later on, lifted a flower pot (Gamla) having a plant in it and hit the same on the head of the said boy, who after receiving number of Danda injuries was lying on the Road. According to him, someone informed the police and the said three boys (assailants) put the injured boy in a rickshaw and took him away, saying that he was trying to snatch their gold chain. Those three boys continued to give beatings to injured boy even after putting him in the rickshaw. He has testified that after some time, police arrived there and made inquiries. The witness has identified the accused Sanjay Dhankar and Bhagwan Sahai in the Court (by pointing out towards them) as the boys who were present at the spot from the very beginning and gave beatings to the injured, whose name later on he came to know as Vicky. He has also identified the accused Mohan Singh @ Bunty in the Court (by pointing out towards him) as the boy who had joined his associates later on and also given beatings to Vicky with Danda and struck the flower pot on his head. The witness has explained that the flower pot was made of cement and was big one.
He has testified that later on he came to know through news channel that the said Vicky had expired, as the photograph of deceased was shown on the TV and he recognized him.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 9 (9) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he is residing at 41, Priyadarshini Vihar, for the last 29 years and he purchased the readymade garments from Gandhi Nagar and also from China and supplied it all over Delhi. According to the witness, he is having his office at A/1213, Sardar Nagar and it takes about ten minutes on foot to reach his office from his residence. He has further deposed that the goods are supplied from his office itself and he himself supplies the garments. The witness has also deposed that on 10.12.2010, he was in his office and his friend Rajeev was also with him and he had not gone anywhere from his office upto 3.00 PM on 10.12.2010. He has testified that he is having mobile phone no. 8447631113 and he manage his entire business from the said mobile phone and no landline number is installed at his office. When asked whether he had taken his lunch on 10.12.2010, the witness has explained that he is not taking lunch for the last thirteen years. (10) The witness has also deposed that he and his friend were sitting outside Sainik Snacks, Hudson Lane, DDA Market, while taking tea and some students were there, but he cannot tell how many students were there. He has further deposed that large number of persons were there and the distance between the Sainik Snacks shop and the place where the quarrel was going on was about 30 feet. According to him, the place of incident was clearly visible from the place where he was sitting and there was no person, stall or tree obstructing his vision to the incident. When asked whether he tried to intervene or run towards the place of incident, the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 10 witness has replied that there was no need since one elderly man had gone to intervene but he was abused and Danda was shown to him, due to which he remained standing there and did not intervene (Jaane Ki Jaroorat Nahin Padi, Ek Uncle Ji Chhudwane Ke Liye Gaye). Further, when asked whether till the time some tried to intervene, he himself moved towards the spot or not, to which the witness replied that he had just moved, but that Uncle Ji was very close to the place of incident and seeing his fate, he did not move. He has further stated that the Uncle Ji intervened when the injured sustained three of four Danda blows. According to him, he saw the Dandas in the hands of assailants, when he noticed the quarrel first time. He is not known to the said Uncle Ji who moved forward to rescue the said boy, but states that he can identify him if brought before him. When asked whether he had seen that Uncle Ji before or after the incident, the witness replied that he did not pay attention (Kabhi Gaur Nahin Kiya). He has also deposed that the place of incident was not surrounded by the public persons and the persons were standing in the DDA Market.
(11) Further, when asked whether there was anybody came in between him and the place of incident, till the quarrel continued, the witness denied. Also, when asked whether he had seen the third boy picking up the pot (Gamla), the witness has explained that the third boy that picked up the pot, which was lying on the right side of the place of incident, outside a house. He does not remember, if the pot broke into pieces, after the hit. He has explained that it was a cemented pot, width was about 1½ St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 11 feet and the height was about 2 feet and there was a small plant in that pot. The witness has been asked whether he remained on the spot till the arrival of police, on which the witness replied that he is not aware when police arrived (Police Pata Nahin Kab Aayi) and he left the spot after the accused persons took away that boy in a cycle rickshaw.
(12) The witness has further testified that police did not arrive on the spot in his presence and stated that he remained at the spot for about 15 minutes. He does not remember, if he had consumed tea or not. According to him, there is one more tea stall near the Sainik Snacks situated at a distance of about 1015 feet and the quarrel had not taken place in between the two tea shops, but it occurred in front of Sainik Snacks. He has further deposed that his mobile phone was with him and his friend Rajeev Saini also carried a mobile phone having No. 9810796404. He has also deposed that from the spot, he and Rajeev first went to the office of one of their friend and thereafter he went back home. According to him, neither him nor Rajeev made any call at 100 number about this incident. He has explained that it takes about 1015 minutes to reach the spot from his residence. The witness has further testified that on the date of incident also, they had reached the spot on two wheeler scooter. He has explained that Rajeev is his old friend and he also visits his residence. The witness has further deposed that after many days of the incident, he was sitting at the same tea shop when SHO and ACP were making inquiries and then he told that he and his friend witnessed the incident after which he called Rajeev St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 12 also on mobile but he does not recollect, if it was after 7 days, 15 days or one month of the incident. The witness has also deposed that their telephone number and addresses were noted down by the SHO and ACP. According to him, thereafter, they received a call from Police Station Mukherjee Nagar on the next date and thereafter, he and Rajeev Saini went to Police Station Mukherjee Nagar. He has testified that the police was making inquiries from the shopkeepers as to whether they had witnessed the incident, or whether the shop was opened at that time and then he said that he and his friend witnessed the incident. According to him, the police made inquiries from the Washerman (Dhobi) and the from the shopkeeper of Sainik Snacks but he did not overhear the conversation between the shopkeeper of Sainik Snacks, Washerman and the police and has explained that the police was making inquiries at a distances of about 8 feet from him and he was able to hear what the police was inquiring. The witness has testified that he and Rajeev Saini reached Police Station Mukherjee Nagar at about 3.00 PM and his statement was recorded by him as dictated by him but statement of Rajeev was not recorded in his presence. He has further deposed that after recording of his statement, he left the Police Station. According to the witness, he was not knowing the names of assailants and also of the deceased and has voluntarily explained that he came to know the name of deceased in the news. He has also deposed that he watched the news of that boy on the TV Channel Aaj Tak, but he does not remember the date, on which he watched that news. He has admitted that he had not seen the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 13 accused persons before the incident, or after the incident, before he identified them in the Court. He has testified that he had not seen the accused persons in the Police Station on the date of recording his statement and the photographs of the accused persons were also not shown to him by the police.
(13) The witness has further deposed that the boy started bleeding, after being hit with the pot on his head. He does not remember, if that was still bleeding, when he was taken away from the spot in cycle rickshaw. He has testified that the boy was lying on the ground, when he was hit with the pot on his head. When asked whether the injured/ deceased was lying without any movement on the ground, before as per his version, he was hit by a pot (Gamla) on his head, or he stopped making any movements thereafter, on which the witness replied that before the said boy was hit with the pot on his head, he was making very slow movements and after he was hit with the pot on his head, he did not make any movement. He has further deposed that the accused wearing red and white stripes shirt called the rickshaw puller saying "Is Ladke Ko Police Station Lekar Jaana Hai", on which a rickshaw puller came. The witness has pointed towards accused Sanjay Dhankar, as the person, who called the rickshaw. According to him, the said boy (injured) was not put on the seat of the rickshaw but was put on the footrest, in front of the rear seat of the cycle rickshaw. He has also deposed that the accused persons did not sit on the rickshaw and they kept giving him Danda blows, even after putting him in cycle rickshaw. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 14 The witness has further deposed that he saw them (assailants) giving Danda blows to the deceased till the rickshaw disappeared on a turn. He has also deposed that only the three accused persons, present in the Court, accompanied the cycle rickshaw. According to him, the accused persons were not talking softly and were abusing, which was clearly audible to him. He has explained that the accused persons were also saying, "Is Ladke Ne Humari Chain Todi Hai". He has also deposed that in his presence, accused persons also made a call to the police and told the police that, "Ek Ladka Humari Chain Cheen Raha Tha, Use Humne Pakad Liya Hai" and has voluntarily added that "Us Ladke Ne Aisa Nahin Kiya Tha". He has denied the suggestion that on that day, he had not gone to Hudson Lane for taking tea or that he was at his home alongwith his friend Rajeev Saini at 3.00 PM. The witness has also denied the suggestion that this incident had not taken place in front of Sainik Snacks or that he did not witness this incident. He has further denied the suggestion that he is deposing falsely at the instance of the family members of the deceased and his friends. (14) The witness has further deposed that he is not known to any person by the name of Kapil Dagar, Anis Raj, Chandan or Ajay S/o Bali Ram and states that he did not tell the names of the friends of the deceased to the police. However, when confronted with his statement Ex.PW4/D1, the names of the friends of deceased were found so mentioned. According to the witness, he did not tell the names of the assailants in his statement. When confronted with his statement Ex.PW4/D1, the names of the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 15 assailants are found mentioned. He has testified that he was not knowing about the enmity between the deceased and the accused persons. The witness has also deposed that he did not tell the police about the enmity between the deceased and the accused persons. When confronted with his statement Ex.PW4/D1, the above fact was found so recorded. According to the witness, he was not aware about the date of death of Vicky/ deceased, but states that from the news he came to know that he died in Trauma Center and he did not tell the police the date of death of Vicky. However, when confronted with his statement Ex.PW4/D1, the above fact was found recorded. He has denied the suggestion that the pot/ Gamla was lying in the street and not in front of the house and has voluntarily explained that it was a corner house. According to the witness, he did not tell the police that the pot was picked up from the street, or in front of the house but when confronted with his statement Ex.PW4/D1, the word Gali was found so mentioned. He has further deposed that he had told the police in his statement that the pot was of cement and was a big one with a plant in that pot. However, when confronted with his statement Ex.PW4/D1 the above fact was not found so recorded. He does not remember, if he had told the police that the injured tried to save himself with his hands. He is not aware of the name of the owner of Sainik Snacks nor does he aware of the name of the owner of other tea shop. According to the witness, he is not aware of any shop in the name of Kaveri Delicious Food nor any person by the name of D.S. Mehta. The witness has also deposed that some boys were making St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 16 call to the police and therefore, he told before the Court that somebody had informed the police. He has stated that he cannot identify the boy who informed the police even if he were to come before him. The witness has testified that he did not tell the police that police did not arrive the spot in his presence, as it was never inquired from him. However, when confronted with his statement Ex.PW4/D1, it is found mentioned that police arrived after some time and made inquiries about this incident. He has denied the suggestion that he is friendly with the family members of the deceased and also with the friends namely Kapil Dagar, Anis Raj, Chandan and Ajay S/o Bali Ram, who are their common friends and for this reason, he is making a false statement before the Court. He has also denied the suggestion that accused Sanjay Dhankar was not present on the spot or that he (witness) was not present on the spot and for this reason, he has not been able to narrate correctly as to what had happened on the spot, if at all. (15) The witness has testified that he came in touch with Rajeev through his friend Sameer, who used to reside in the house of Rajeev as tenant. According to him, the house of Rajeev is at distance of five/ seven minutes by scooter from his office. He has also deposed that he has to go from the inner lane, he has to pass in front of house of Rajeev Saini for reaching Hudson Lane from his house since if he used the outer lane, then he would not pass in front of house of Rajeev Saini and has voluntairly explained that he generally use the outer lane. According to him, usually he left his residence in the morning at about 10.3011.00 AM and returned St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 17 home at about 8.30 PM. He has denied the suggestion that on the date of incident, from his house, first he went to the house of Rajeev to take him and thereafter, they reached at Hudson Lane. According to the witness, they parked the two wheeler scooter just by the side of the shop in the parking space, in front of the staircase where other motorcycle, scooters were also parked. He has testified that it is not a big market and only one side of the said market is open. The witness has also deposed that it takes about 1520 minutes to reach the spot from Ramjas College on scooter. He is unable to tell the distance in kilometers between Ramjas College and the spot. He has stated that it takes about 1012 minutes on bike to reach Police Station Mukherjee Nagar from the spot, from main road. According to him, there is no particular time of his visit to Hudson Lane but generally, he visits Hudson Lane twice or thrice in a day. He has admitted that there is a park situated near the shop and it falls on the left hand of the person standing facing the shop. The witness has further deposed that he had visited that park and had entered in that park from the main gate, situated on the main road and sat on the bench, situated on the left side of the entry. He is not aware about any other gate or details of that park beyond that. He has testified that on that date, they remained at the spot for about 2030 minutes, but he does not remember exactly. He has denied the suggestion that the distance between the place of incident and the place where they were taking tea, was about 50 feet. According to the witness the accused persons did not say anything to the boy, except that the two accused called him and started St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 18 beating him. He has also deposed that he did not notice as to how many steps Uncle Ji moved backward after he was shown a Danda by the accused persons. The witness has also deposed that so far as he remember, Manoj @ Vicky was wearing a jeans, but he does not remember what he was wearing on the upper portion of his body. He has denied the suggestion that no Uncle Ji tried to save the deceased or that the accused persons were not present at the spot.
(16) PW5 Anis Raj who is a friend of the deceased is an eye witness to the incident. He has deposed that earlier he used to reside at 169B, Old Gupta Colony, Delhi and deceased Manoj Kumar @ Vicky was a student of 1st year at that time where as he (witness) was a student of B. Com. 3rd year and deceased Manoj Kumar was known to him being his junior. Witness has further deposed that on 10.12.2010, at about 3.00 PM, he alongwith Manoj Kumar @ Vicky, Kapil Dagar and Chandan reached at DDA Market, Hudson Lane to take tea and after taking the tea, Chandan received a call on his mobile phone and as such, he went towards the gate to receive the call in privacy whereas he, Kapil Dagar and Manoj were standing on the road. According to the witness, when they were about to leave, accused Sanjay Dhankad and Chintu whose full name is Bhagwan Sahai who were known to him earlier also, came there and both accused Sanjay Dhankad and Bhagwan Sahai, whom the witness has correctly identified in the Court, started arguing with Manoj @ Vicky. He has testified that both the accused told him, "Bahut Bar Pehle Bhi Tum Chhoot St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 19 Chuke Ho, Aaj Tumhein Nahin Chhodenge". Witness has further deposed that Vicky was requesting them to leave him, but they did not permit him to go and started beating him with fists, due to which Vicky fell down and meanwhile, first accused Bhagwan Sahai @ Chintu took a Danda from the nearby stall (Thiya) of a Washerman (Dhobi), who used to iron clothes there and started giving Danda blows on the person of Manoj @ Vicky. According to the witness accused Sanjay Dhankad also brought a Danda from the same stall and at that time, there was none present at the said stall and both accused Sanjay Dhankad and Bhagwan Sahai started giving Danda blows to Manoj @ Vicky. The witness has also deposed that Manoj was saving his head from the blows of Danda given by both the abovesaid accused, with his both hands. He has testified that he, Kapil Dagar and some other persons, who had collected there when tried to save Manoj, both the accused extended threats to face dire consequences to them and shown Dandas to them, if they tried to rescue Manoj. He has further testified that they (assailants) also slapped one old shopkeeper, who tried to intervene to save Manoj and Manoj @ Vicky who was lying on the road became unconscious. The witness has also deposed that meanwhile, one Mohan Singh @ Bunty, whom the witness has identified in the Court, who was also known to him prior to the incident, also came there and picked up a big flower pot made of cement, which was lying there and hit that pot (Gamla) on the head of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 20 Manoj, who was lying unconscious on the road. According to the witness the pot was broken into pieces and even after hitting the pot on the head of Manoj, all the three accused gave beatings to Manoj. Witness has further deposed that one boy, whom he was not knowing earlier, also arrived on the spot alongwith Mohan @ Bunty. He has further deposed that he came to know the name of the said boy as Satish later who also gave kick blows to Manoj @ Vicky alongwith the three accused persons, while Manoj was lying on the road. He has also deposed that Satish lifted Manoj @ Vicky from the road, threw him in a cycle rickshaw and they all moved from there, saying that they are taking Manoj to the police station as he had tried to snatch their gold chain. He has testified that prior to hitting the pot on the head of Manoj @ Vicky by accused Mohan Singh @ Bunty, Chandan had also reached there who dialed number 100. According to the witness he alongwith Kapil Dagar reached at Police Station Maurice Nagar to inform the police but the officials of Police station Maurice Nagar told them that the place of incident does not fall within their local jurisdiction and asked them to go to Police Station Mukherjee Nagar. Witness has further testified that when they reached again at the spot, PCR was present near NDPL Office and they called their other friends and thereafter, they all reached at Police Station Mukherjee Nagar where they came to know that Manoj @ Vicky had already been shifted to BJRM Hospital by the police. He has testified that at Police Station Mukherjee Nagar they saw that accused Bhagwan Sahai @ Chintu giving his statement to the Investigating St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 21 officer SI Inderpal Singh to the effect that Manoj @ Vicky alongwith his associates attempted to snatch his gold chain. Witness has further deposed that they also narrated the facts of the case to SI Inderpal Singh and identified accused Bhagwan Sahai @ Chintu, who was present there and thereafter, he, Chandan, Kapil Dagar, brother of Manoj and some other boys reached at BJRM Hospital. According to the witness, when they reached at the hospital, at that time, the doctors were putting plaster on both the forearms of Manoj @ Vicky and at that time, Manoj was only blinking his eyes and was not responding properly and even not able to talk properly. He has further deposed that after about 3045 minutes of their reaching the hospital, Manoj @ Vicky became unconscious. He has also deposed that the Investigating Officer recorded his statement and also the statements of Kapil Dagar and Chandan after which he along with the Investigating officer reached at the spot where Investigating Officer prepared site plan at his instance which is Ex.PW5/A. According to him accused Bhagwan Sahai @ Chintu was arrested vide arrest memo Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/C. According to him he alongwith police also reached at the house of Sanjay, but the same was found locked at that time.
(17) In his cross examination by Ld. Defence counsels, witness has deposed that on 10.12.2010, he was a student of Ramjas College and Kapil Dagar and Chandan were not the student of Ramjas College. He is not aware what exactly Kapil Dagar was doing at that time and states that St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 22 Chandan was a student of Satyawati College in 2nd year. He has explained that he came to know about Kapil Dagar, while he was a student of 2 nd year and he knew Chandan from his first year as they reside in the same area. According to the witness, he attended his classes on 10.12.2010 and generally, the schedule of classes is from 8.40 AM to 12.20 PM. He has testified that on 10.12.2010, he attended one class at 11.30 AM to 12.20 PM. Witness has further deposed that after attending his class, he went to the Canteen of Ramjas College where he remained for about an hour and Chandan was alongwith him in the Canteen and from the Canteen, he and Chandan started moving towards the gate of Ramjas College. According to the witness when they reached at the gate of Ramjas College where Kapil Dagar and Manoj @ Vicky met them and from there, they all four went to Law Faculty where they remained there for 45 minutes to one hour and thereafter, they went to Hudson Lane, DDA Market, to take tea. Witness has also deposed that they were on two bikes, one with him and one of Kapil Dagar. He does not remember the registration number of the bike of Kapil Dagar and states that it was of Hero Honda and his bike was having registration no. DL5SR9153 make Honda which is in the name of Govind Kumar, his junior student of Satyawati College who might be at his residence at that time. According to the witness, there was a parking space just in front of DDA Market where they parked the bikes which was about 25 feet away from the place of incident. Witness has further deposed that the tea shop was just near the place, where they parked their bikes. He has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 23 testified that they had tea at the tea shop at about 3.00 PM. According to him, it was not a famous tea stall and has voluntarily explained that was their friends place and everything is available there. Witness has further deposed that they used to visit that tea stall once in three/ four days. He is not aware who was the owner of that tea stall nor is he aware of the boys, who served tea at that tea stall. He has also deposed that the distance between the tea stall and spot was about 25 feet. He is unable to tell if any person from the tea stall also reached the spot and has voluntarily added that there was a crowd and therefore, he is unable to tell particularly and he was also frightened. Witness has denied the suggestion that on that day, he did not visit the tea stall, or did not reach the spot. Witness has further deposed that mobile number 9899535266 is in his name, which he had told to the police in his statement and he was having his mobile phone with him at the time of incident. He has also deposed that the mobile phone was made of Samsung in which video recording facility was not available. When asked whether he tried to save Manoj @ Vicky, the witness replied that he moved forward saying "Bhaiya Chhod De; Chhod De" but the accused persons showed him the Danda and extended threats "Hat Ja Tu Yahaan Se, Verna Tujhe Maar Denge. Tu Bhi Pitega. Apne Kaam Se Kaam Rakh". According to him, the accused Sanjay Dhankad extended these threats but he does not remember exactly, if accused Bhagwan Sahai extended any threats to him at that time, when he moved forward to save Manoj @ Vicky. The witness has further deposed that he did not try to save Manoj, when Mohan @ Bunty St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 24 arrived on the spot since he was afraid and was crying standing on the side. According to him immediately, after the accused persons took away Manoj @ Vicky in a cycle rickshaw, he alongwith his friends left for Police Station Maurice Nagar on the bike of Kapil Dagar whereas Chandan remained at the spot and did not accompany them to Police Station Maurice Nagar. He has testified that they did not enter the Police Station Maurice Nagar and one Constable met them at the gate of the Police Station to whom they told that three/ four persons are giving beatings to their friend at Hudson Lane on which he (Constable) directed them to go to Police Station Mukherjee Nagar. Witness has further deposed that from Police Station Maurice Nagar, they did not go to Police Station Mukherjee Nagar directly and immediately after the Constable asked them to go to Police Station Mukherjee Nagar, they reached NDPL office, where PCR van was found parked and Chandan was already present near the PCR Van and was talking with them. Witness has further testified that it took them only ten minutes to reach NDPL Office near PCR Van after leaving the spot. He has explained that there were three male police officials in that PCR Van and PCR official was writing something when Chandan was telling them what had happened. Witness has further deposed that they asked them to reach Police Station Mukherjee Nagar on which he, Chandan, Kapil Dagar and his other friends went inside Police Station Mukherjee Nagar and his friends Saurav, Vicky, Govind, Amit, Akaash and many others were with them when they reached Police station Mukherjee Nagar. He has testified that all St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 25 these friends collected near PCR Van. According to him, from there they all went to Police station Mukherjee Nagar and while SI Inderpal was recording the statement of Bhagwan Sahai @ Chintu, one more police officer was there. He has also deposed that he is not known to Ct. Pramod of Police Station Mukherjee Nagar. Witness has also deposed that Manoj was not present in Police Station Mukherjee Nagar, when the statement of accused Bhagwan Sahai was recorded. He has testified that he was told by SI Inderpal that Manoj had already been sent to hospital and SI Inderpal also made inquiries from him. According to the witness, he along with his friends told SI Inderpal about the incident. He does not remember if SI Inderpal asked him and his friends about the incident specifically or he only put a general question from all. He has further deposed that SI Inderpal did not put specific question to specific person in the Police Station and has voluntarily added that it was general inquiry and they all told the facts to SI Inderpal and no other boy was present with Chintu when they reached at the Police Station. The witness has also deposed that he and his friends remained in the Police Station for about 2030 minutes. He has stated that SI Inderpal remained in the Police Station, till they remained there. He does not remember, at what time, he met Manoj @ Vicky in the hospital and states that it might be around 6:00 PM, when he met Manoj @ Vicky in the hospital. He has testified that the doctors were putting plaster on his arms, when he met Manoj @ Vicky. According to the witness SI Inderpal also met him in the hospital at about 8.00 PM and remained in the hospital till St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 26 9.00 PM. The witness has further deposed that his statement was recorded in the hospital at about 8.30 PM and SI Inderpal did not record the statement of Manoj @ Vicky in his presence, before recording his statement. He has further deposed that Manoj @ Vicky was not conscious, while his statement was being recorded by his bed side. Witness has also deposed that Manoj @ Vicky was not conscious, when he was thrown in the cycle rickshaw and he went to meet Manoj @ Vicky in the hospital after 10.12.2010 also, but could not meet him, as he was not conscious. He has testified that from the hospital, he reached the spot on his bike and police reached there in their own vehicle. According to the witness, he did not point out the place of parking of his bike to the police, as the police did not inquire about the same. He has also deposed that they only inquired as to where the incident had taken place. He has testified that he had shown the place, from where Mohan @ Bunty lifted the pot but he had not shown the tea shop where they took tea to the police and has voluntarily added that he had only shown the place of incident. He does not remember if police inquired from him as to where they had taken tea or if he had shown that stall to the police, from where the accused persons took the Dandas. Witness has further deposed that after Manoj was hit on his head with the pot, he did not sustain any bleeding injury. He does not remember if any plant was planted in that pot which was hit on the head of Manoj @ Vicky. On being asked about the size of that pot to which the witness gave the size with his hands, which is approximately one feet.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 27 (18) The witness has further deposed that Bunty hit the pot on the head of Manoj @ Vicky and it struck against the head of Manoj @ Vicky after which the pot was broken into pieces. He has also deposed that Manoj @ Vicky was not unconscious before he was hit with the pot on his head and he talked with Manoj after the incident in the hospital, but he only said, "Thik Hai, Thik Hai". Witness has denied the suggestion that he was not present on the spot at the time of incident or that he did not visit Police Station Maurice Nagar or that he did not reach PCR Van from Police station Maurice Nagar. Witness has further denied the suggestion that he did not visit Police Station Mukherjee Nagar on 10.12.2010 or that he did not visit BJRM Hospital on 10.12.2010 or that he did not visit Sushrut Trauma Centre. Witness has also denied the suggestion that his statement was not recorded on 10.12.2010 or that police did not prepare any site plan on his pointing out. He has admitted that Manoj and Sanjay Dhankad were having previous enmity. He is not aware if there was any case registered at any Police Station against Manoj @ Vicky at the instance of accused Sanjay Dhankad, but states that he knew that two or three cases are registered at Police Station Model Town against accused Sanjay Dhankad. He has also deposed that he met Manoj @ Vicky in the month of August, 2010 and states that sometime he and Manoj used to meet everyday and sometime, once in a week. He is not aware if in the month of August 2010, Manoj @ Vicky had any quarrel with any person nor is he aware if somebody hit on the head of Manoj @ Vicky in August, 2010. According to the witness, he St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 28 is not known to any person by the name of Soni Sonkar, Ranjeet Thakur and Pappu but states that he is known to the other friends of Manoj @ Vicky who are Vicky, Manjeet, Govind, Saurav, Bam etc. Witness has further deposed that none of them is a student of Ramjas College, except Saurav and only that they reside in the nearby localities. He has testified that Manoj was not having any enmity with any other person, except Sanjay Dhankad and Bhagwan Sahai @ Chintu. He is not aware if Manoj got registered any FIR No.278/2010, dated 05.08.2010 at Police Station Model Town. He has denied the suggestion that he has no knowledge about the friends and enemies of Manoj @ Vicky, or that he was not even meeting Manoj @ Vicky in the month of August, September or October, 2010 or even thereafter. Witness has further deposed that he changed his address less than one month ago and at the earlier address, he was residing alongwith his friend and mother.
(19) According to the witness, he had told the police in his statement that he reside at the address alongwith his family. He does not remember, if he told the police that he was student of 3rd year and Manoj was his junior. When asked if he had told the police in his statement that Chandan also reached alongwith him at tea stall, to which the witness has replied that Police did not ask him about this fact. He has further deposed that he did not tell the police in his statement that after they had taken tea, Chandan received a call and he went to receive the call in privacy. He has further deposed that he told the police that after taking the tea, they were about to St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 29 leave and that is why they were standing on the road, however when confronted with his statement U/s.161 Cr.P.C. which is Ex.PW5/D1 the above fact not found so mentioned. He does not remember whether he told the police in his statement that "Tum Pehle Bhi Bahut Bar Bach Chuke Ho; Aaj Tumhein Nahin Chhodenge". When confronted with his statement Ex.PW5/D1 wherein the above fact was not found so mentioned in verbatim, but it is mentioned that "Aaj Tujhe Batata Hoon, Pehle Bhi Tu Humse Bach Chuka Hai". He does not remember if he told the police in his statement that Vicky requested them to leave him, but they did not permit him to go. When confronted with his Ex.PW5/D1 the above fact was not found so recorded, but it is mentioned in so many words that the accused persons gave beatings to Manoj @ Vicky with Dandas. He also does not remember, if he told the police that nobody was present at the stall, when the accused persons drew Dandas from there. However, when confronted with his statement Ex.PW5/D1, it was not found so recorded but it is mentioned that they drew the Dandas from the stall. According to the witness perhaps, he has told that injured was protecting his head with his both hands, when the accused persons were giving beatings to him with Dandas. He also does not remember, if he told the police that the accused persons also slapped one old shopkeeper, who tried to intervene to save Manoj. When confronted with his statement Ex.PW5/D1 the above facts were found not so recorded but it is mentioned that they slapped the old St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 30 man. Witness has further deposed that he had told the police that Manoj was lying unconscious on the road but when confronted with his statement Ex.PW5/D1 it was not mentioned that he became unconscious. He does not remember, if he told the police that Mohan @ Bunty picked up a big cement pot. When confronted with his statement Ex.PW5/D1 the words 'big' and 'cemented' was not found mentioned. He has also deposed that he told the police that cement pot was broken into pieces but when confronted with his statement Ex.PW5/D1 this fact was not found so mentioned. He does not remember if he had told the police that Satish also arrived the spot alongwith Mohan @ Bunty, also gave kick blows to Manoj @ Vicky and thereafter, threw him in a cycle rickshaw. However, when confronted with his statement Ex.PW5/D1 the above facts were not found so recorded. Witness has further deposed that he did not tell the police in his statement that he alongwith Kapil Dagar went to Police Station Maurice Nagar nor did he tell the Investigating Officer that at Police Station Maurice Nagar, he informed one police personnel about the quarrel and he told them that the place of incident falls under the jurisdiction of Police Station Mukherjee Nagar and asked them to go there. He does not remember if he told the police that from Police Station Maurice Nagar, they reached near NDPL Office, but when confronted with his statement Ex.PW5/D1 the above fact was not found so recorded. Witness has further deposed that he did not tell the Investigating Officer that he informed his friends, whom came near NDPL Office and from there, they went to Police Station Mukherjee Nagar, St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 31 where they came to know that Manoj @ Vicky had already been taken to BJRM Hospital and has voluntarily added that as they all were there, hence, there was no need to tell this fact. He has testified that the fact that Manoj @ Vicky had been shifted to BJRM Hospital, had been told to them by the Investigating Officer himself. Witness has further deposed that he did not tell the police in his statement that when he alongwith his friends reached Police Station Mukherjee Nagar, he found Bhagwan Sahai @ Chintu already present in the Police Station, who was lodging the complaint nor did he tell the police that when he reached the hospital alongwith Chandan, Kapil Dagar, brother of Manoj and some other boys, doctor was putting plaster on both the forearms of Manoj and at that time Manoj was blinking his eyes and was not responding properly. Witness has further deposed that he did not tell the Investigating Officer that Manoj @ Vicky was not even able to talk properly and after about 3040 minutes of their reaching the hospital, he became unconscious and has voluntarily added that the Investigating Officer was already in the hospital. The witness has also deposed that Kapil Dagar was with him, when his statement was recorded by the police and has clarified that he was not continuously standing along his side and according to him, Kapil was coming and going and Chandan was also present in the hospital but he does not remember, if the statements of Chandan and Kapil Dagar were recorded on the same day in the hospital. Witness has denied the suggestion that no statement of him was recorded on 10.12.2010. Witness has further deposed that he remained on the spot for about 1015 St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 32 minutes alongwith police and from the spot, he went home. He does not remember how many of his statements were recorded by the police and he has no knowledge, if he signed any document in the Police Station on 10.12.2010.
(20) The witness Anis Raj has further deposed that he did not make any call at 100 number from his mobile phone. He has testified that SI Inderpal was not present near PCR Van, when he reached there. He has denied the suggestion that the injured from the place of incident were removed by the PCR Van, or that the story that he narrated is false. Witness has also denied the suggestion that he was deposing falsely, being friend of the deceased. Witness has admitted that Ex.PW2/A bears his signature at point B, however, his name in the bracket is not in his handwriting. Witness has further deposed that two persons sat in the same cycle rickshaw in which Manoj @ Vicky was thrown and the two accused went alongwith the said cycle rickshaw. He does not remember, who were those two accused who sat on the rickshaw and who went alongwith rickshaw on foot. The witness has deposed that he cannot identify the rickshaw puller, in whose rickshaw, the accused persons took away Manoj @ Vicky nor can he give the description of the Rickshaw puller. According to the witness he met Kapil Dagar through Manoj @ Vicky and he became his friend. He has testified that he came to know about Manoj from the first year and earlier he was residing at Gud Mandi, later on he shifted to Mukand Pur, Burari and he visited the house of Manoj @ Vicky only once. Witness has further St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 33 deposed that the distance between his house and the house of Manoj @ Vicky was about 500 meters, while he was residing at Gud Mandi. According to him, the distance between the spot and his present residence is about 11 ½ Kms. Witness has further deposed that it took them about five ten minutes to take tea and Chandan made a telephone call to Kapil Dagar and he met him at the gate of Ramjas College whereas he and Chandan met in the Canteen. The witness has also deposed that there was no authorized parking in the DDA Market and has voluntarily added that near the complex, there was a space, where they parked their bikes. Witness has further deposed that after taking tea, they reached the place, where they parked their motorcycle and they were about to reach their motorcycle and it was around 3.30 PM, when they were standing near the motorcycles that the accused persons came from the side of park gate which that gate was opposite the tea shop but slightly on the right hand side. He does not remember, if he had told the Investigating Officer in his statement that the accused persons came from the side of gate of the park. Witness has further deposed that there were no shops on the right hand side of the place, where they parked their bikes. He has denied the suggestion that immediately after entering from the main road, there is a DDA Market and has voluntarily added that DDA Market is on the right hand side. He has further deposed that there were other shops on the left side of the tea shop and there is no shop inside the park. He has admitted that there is one iron gate across the road opposite tea shop. He is not aware if there is any shop behind that iron St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 34 gate. He has deposed that so far as he knew, there is some case against the accused at Police Station Model Town. He is not aware if two cases are registered against Manoj @ Vicky at Police Station Mukherjee Nagar. He has testified that accused Bhagwan Sahai and Sanjay Dhankad reached the place, where their motorcycle was parked. According to the witness, he is not known to any person by the name of Devraj and Ajay son of Bali Ram. Witness has also deposed that he and Kapil Dagar went to Police Station before Chandan made a call to 100 number and when they returned, that he came to know that Chandan had made a call at 100 number. Witness has further deposed that he did not visit Police Station after leaving hospital on 10.12.2010 and he again did not visit the hospital on 10.12.2010. Witness has denied the suggestion that he did not visit the hospital or that Manoj @ Vicky was the muscleman and quarrelsome person. He has also deposed that he had no meeting with accused Bhagwan Sahai @ Chintu before the incident, but he was knowing him. Witness has denied the suggestion that Manoj @ Vicky was already having a head injury. Witness has also denied the suggestion that since he was not present at the spot, therefore, he did not make any call to 100 number. He has further deposed that the beatings continued from 1015 minutes. He does not remember if he told the addresses of the accused persons in his statement to the Investigating Officer. Witness has denied the suggestion that he was unable to tell the addresses of accused persons as he had not disclosed the addresses of the accused persons in his statement to the Investigating Officer, because he St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 35 was not knowing the same on that date. Witness has further deposed that he did not follow the rickshaw, in which the injured was taken by the accused persons. He has denied the suggestion that he did not follow the rickshaw, as he was not present there. According to the witness, none of his companion followed the rickshaw and he had no introduction or meeting with accused Mohan before the incident. Witness has denied the suggestion that he named Mohan @ Bunty, only because he was friend of Sanjay Dhankad and Bhagwan Sahai or that he identified the accused persons on the day of his deposition at the instance of police. Witness has further deposed that once, he accompanied the police to the house of Sanjay Dhankad but it was found locked. According to him, the accused Mohan reached the spot on foot and his statements were recorded only by SI Inderpal and none else. He is not aware if the deceased as well as Mohan @ Bunty were arrested by the police in case DD no.11A, dated 21.08.09 Police Station Model Town U/s.107/151 Cr.P.C. Witness has also denied the suggestion that accused Mohan was shown to him in the Police Station and has voluntarily added that he was known to him before the incident. Witness has further deposed that after one day, he came to know the name of fourth person as Satish. He has further testified that he stayed near Manoj in the hospital for about threefour minutes, as doctors were not allowing to stand near him. He has also deposed that Manoj was lying on the stretcher when his forearms were put in the plasters. Witness has admitted that Manoj replied, "Thik Hai Thik Hai", when he asked how he St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 36 was feeling. Witness has denied the suggestion that as he was not able to meet Manoj @ Vicky, that is why he presumed that he was unconscious or that if at Sushrut Trauma Centre, a visitor wants to meet a patient, he should get the pass, issued from the hospital authorities and has voluntarily explained that when the injured was shifted in the ward, Investigating Officer obtained the thumb impression of injured Manoj on some blank papers and when they objected to it as to why he was taking his thumb impression on the blank papers, he replied that he will write statement of Manoj @ Vicky on those papers and the same would be used for the arrest of the accused persons. Witness has further deposed that police obtained his signatures on the arrest memo, personal search memo and site plan and his signatures were obtained in the hospital and on one document, his signature were obtained later on and the other document, which he signed later on after the death of Manoj. Witness has denied the suggestion that after receiving injury till his death, Manoj remained fully conscious. Witness has further deposed that no statement of Manoj @ Vicky was recorded by the police in his presence and as per his knowledge. Manoj did not regain consciousness after he became unconscious in the hospital, as per his knowledge. Witness has denied the suggestion that accused Mohan @ Bunty was not present at the spot or that no one hit the deceased on his head with the flower pot or that only because of this reason, neither any flower pot, nor the broken pieces of the said flower pot were St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 37 seized by the police from the spot. Witness has also denied the suggestion that he was deposing falsely at the instance of Investigating officer, or that he never joined the investigation of this case, or that he did not witness any such incident. Witness has denied the suggestion that accused Sanjay Dhankad and Bhagwan Sahai were not present at the spot. (21) PW6 Kapil Dagar is another eye witness to the incident who has deposed that he resides at House no. H9, Roop Nagar Fire Station, Delhi110007 along with his family and he is pursuing his MBA Course. According to the witness, Manoj Kumar @ Vicky son of Ganesh Kumar Singh was his friend. He has further deposed that on 10.12.2010, at about 3.00 PM, he along with Manoj Kumar, Anis Raj and Chandan had gone to DDA Market, Hudson Line and when after taking tea, they were standing on the road, when suddenly accused Bhagwan Sahai @ Chintu and Sanjay Dhankad @ Nakli whom the witness correctly identified in the Court, came there and they both told Manoj Kumar @ Vicky "Aaj tujhe nahi chhorenge, tu bahut dino se bach raha tha". According to the witness both the aforesaid accused were known to him through Manoj Kumar @ Vicky as he (Manoj @ Vicky) had informed that they both are bad elements. He has further deposed that first the accused Bhagwan Sahai @ Chintu gave beatings to Manoj with hands and Manoj was made to fall on the ground after which accused Bhagwan Sahai @ Chintoo brought a danda from a nearby kiosk (Thia) of one press wala and started giving danda blows aiming the head of Vicky. He has testified that Vicky was trying to St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 38 save his head by his both the hands and in this process, he sustained injuries on his both the hands. Witness has further deposed that meanwhile, Sanjay @ Nakli also brought a danda from the same place and started giving danda blows to Manoj @ Vicky and when anybody tried to intervene or to save Manoj, they both threatened him saying "Jo beech me aaya, uska bhi yahi haal karenge". According to him, Manoj @ Vicky was raising an alarm, "Chhor do chhor do", but both the accused gave merciless beatings to him and in the meanwhile, accused Mohan Singh @ Bunti, whom the witness has correctly identified in the Court, came there and also joined both the accused and started giving beatings to Vicky, who was lying on the road with kicks and was saying, "Aaj nahi chorenge ise". He has has further deposed that thereafter accused Mohan Singh @ Bunti picked up a cemented flower pot (Gamla) which was kept there and hit the same on the head of Manoj @ Vicky, who at that time, was lying on the road. Witness has further deposed that one Satish who is the younger brother of accused Bhagwan Sahai @ Chintu also came there along with one rickshaw wala and they all including Satish lifted Manoj @ Vicky and thrown him in the said rickshaw and the beating by all of them including Satish continued. According to the witness accused persons while taking Manoj @ Vicky in a rickshaw, were saying, "Isne hamari sone ki chain tori hai, aur hum ise thane le ja rahe hai". He has further deposed that their friend Chandan Kumar informed the police after which he along with Anis Raj went to Police Station Maurice Nagar to call the police. Witness has further deposed St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 39 that one police official who was present at the gate of Police Station told them that the place of incident falls in the jurisdiction of Police Station Mukherjee Nagar on which he along with Anis Raj came back to the spot and stopped in front of office of NDPL since PCR was about to come and location was not clear to the PCR. He has also deposed that PCR Van arrived there and Chandan was already with them after which they all reached at Police Station Mukherjee Nagar and at that time, accused Sanjay @ Nakli was also there. Witness has further deposed that they pointed out to the police that he was one of the assailant but nobody bothered and then they came to know that Manoj @ Vicky had already been shifted to BJRM Hospital. Witness has further deposed that from Police Station Mukherjee Nagar, he along with Anis Raj, Chandan and some other friends, reached at BJRM Hospital. According to the witness in the hospital, Manoj @ Vicky and Bhagwan Sahai @ Chintu both were present. He has further deposed that his statement was recorded by the police on 10.12.2010, at the hospital and accused Bhagwan Sahai @ Chintu was arrested and his personal search was conducted. He has testified that on 11.12.2010, he again joined the investigation of the present case and on that day, on the call of Investigating Officer, he reached at DDA Market, Hudson Lane, Delhi at about 11.15 AM where he informed the police that accused Sanjay Dhankad @ Nakli was present at his residence i.e. House no. 94, Rajpura, Gur Mandi, Delhi. He has testified that thereafter he along with police team reached at the house of accused Sanjay Dhankad at about 11.30 AM after which the accused St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 40 Sanjay Dhankad was arrested and his personal search was conducted and Investigating officer recorded his disclosure statement which is Ex.PW6/A. Witness has further deposed that after the arrest of accused Sanjay, they reached at the house of Mohan Singh @ Bunti at about 1.30 PM at DTC Colony, where father of Mohan Singh @ Bunti namely Narender Kumar met them whom informed the police that Bunti was missing after the incident and he was unaware of his whereabouts. According to the witness, they informed the Investigating Officer that no such incident of chain snatching took place and the Investigating Officer went with them to the spot and on verification, he found that no chain snatching was done by Manoj @ Vicky as he was with them at that time and it was only a false allegations made by accused.
(22) In his cross examination by the Ld. Defence Counsel, witness has deposed that he took admission in MBA in last week of September 2010 from PTU Softdot, Netaji Subhash Place which was a two years course. According to him the deceased was his friend about two or two and a half years prior to the incident and Anis Raj was friend of deceased for the last one or one and a half years prior to the incident and he never visited the house of deceased along with Anis Raj. He has further deposed that he came to meet deceased through his friend Manjit, a resident of Rajpura Gur Mandi and he used to meet the deceased regularly. Witness has also deposed that on that day, his class was there but he did not attend the same and as on the previous night, he had gone to attend a marriage party of the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 41 brother of his one friend Mayur at South Extension, due to which, he woke up in the morning. According to the witness Mayur is not doing MBA with him and Mayur is resident of Kamla Nagar and his college hours were from 09.00 AM to 11.00 AM. The witness has testified that Anis Raj met him at around 1.30 PM on the gate of Ramjas College, in which he was studying. He has also deposed that Chandan is known to him for last about three years prior to the incident who used to study in Satyawati College and was student of perhaps of Economics (Hons.) or Maths (Hons.) and at present, he is a student of Final Year. According to the witness he reached the gate of Ramjas College as Chandan telephoned him when he was at his home and the distance between his residence and gate of Ramjas College is about one kilometer. Witness has also deposed that from Ramjas College, he along with Anis Raj, Chandan and Manoj @ Vicky went to Law Faculty to meet their common friend namely Rajeev. Witness has further deposed that Rajeev was in DUSU (Delhi University Student Union) on some post which he does not remember and they remained in Law Faculty for about an hour. He has testified that he did not tell the Investigating Officer in his statement that they went to Law Faculty to meet Rajeev and he is not aware, at what time, Chandan met Anis Raj on that day and has voluntarily added that they were sitting in the Canteen and they met him at the gate of Ramjas College. According to the witness he reached the gate of Ramjas College on bike, which is registered in the name of his father and Anis Raj was having a bike make Honda, but he does not remember registration number of the same St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 42 and also does not remember if Anis Raj used to come to the college on the same bike. He is not aware in whose name that bike was registered, but mostly, he used to meet him on the same bike and there is one canteen in Ramjas College. Witness has admitted that there is a Canteen in his college. He has further deposed that the distance between the Law faculty and the place of incident is about 2 ½ and 3 kilometer. Witness has further deposed that after coming out from the Law Faculty, all four of them reached near the place of incident at about 3.00 PM. He has testified that Manoj @ Vicky was with him on his bike, when they left the law faculty and they parked their bikes in a place, where everybody parks the bikes just near the tea shop and at that time two or three bikes were already there and after parking their bike, they sat in front of tea shop and took tea. Witness has further deposed that it took them about five to seven minutes in taking tea and has voluntarily explained that tea was always ready there. He has testified that he had visited that tea shop many times before the incident and he alone had also visited that tea shop many times. Witness has denied the suggestion that he used to visit that tea shop as all his friends used to meet him there. According to the witness the distance between the tea shop and the place, where they were standing, was more than 20 feet. On being asked, the witness specifically deposed that the accused Bhagwan Sahai came from the side of NDPL office. He is not aware in which college accused Bhagwan Sahai was studying and what were his subjects nor he was known to the accused Bhagwan Sahai personally, but Vicky told him St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 43 that they were local gundas of the area. The witness has also deposed that they (witness and his friends) talked with each other by the side of the road only for two to four minutes. He is not aware how many servants were working on that tea shop nor is he aware of the name of the owner of the tea shop. He has denied the suggestion that they had not gone to the tea shop on the date of incident. According to the witness, he was having a mobile bearing No. 9999680808 which mobile set was having a facility of video recording.
(23) He does not remember as to how many students and persons were present on the spot at the time of incident. According to him, three/ four shops were open at that time and only those shopkeepers were present there. He has testified that all those shops were in the same line and the distance between the place of occurrence and those shops was approximately 20 feet. The witness has also deposed that there was no kiosk (Lakdi ka khokha) in between the place of occurrence and those shops. He has denied the suggestion that there was a chai ka khokha in between the place of occurrence and those shops. According to the witness, there was no Icecream Vendors Rehri present on the spot in between the place of occurrence and those shops nor there was any khokha near the place of occurrence. He has also deposed that when the quarrel was going on, he was standing nearby and trying to save his friend. He has testified that initially, he and Anis were trying to save their friend from the assailants. The witness has further deposed that Chandan was with them St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 44 and also took tea with them. He has also deposed that Chandan made a call to the police at about 3.45 PM. He does not remember the mobile number of Chandan, which he used on the date of incident. According to him, Chandan was standing by his side when he made call to the police. On being asked why he had gone to the Police Station to call the police when Chandan had already called the police to which the witness replied that the PCR Van was taking time in reaching the spot (Kyunki Sau Number Aane Mein Time Lag Jaata Hai) and they were knowing that the PCR van was stationed near NDPL office and therefore, they went to call the PCR from there. The witness has also deposed that they did not wait for the PCR on the spot, after the call was made by Chandan and immediately left for the Police Station. According to the witness, when they went to NDPL office, they found that the PCR van was not stationed there, at that time and the PCR van was found there at about 4.00 PM. He has denied the suggestion that PCR removed the injured from the spot and has voluntarily explained that Vicky was taken from the spot by the accused persons, saying that he was snatching the chain, and that is why, they had given him beatings. The witness has also deposed that at Maurice Nagar, they met the police official, who was present at the gate of Police Station and he told that police officer "Wahan Par Ladaai Jhagda Ho Raha Hai, Mere Dost Ko Maar Rahein Hai, Aap Chaliye" but the police officer told them that the place of occurrence does not fall in the area of PS Maurice Nagar and asked them to go to PS Mukherjee Nagar. He has testified that they returned to the Police Station St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 45 from Police Station Maurice Nagar at about 3.55 pm, but at that time, Vicky was not there and Chandan was present there. According to him, on the way to the spot from Police Station Maurice Nagar, office of NDPL lies on the main road itself. He has further deposed that PCR officials directed them to reach the Police Station and when they reached Police Station Mukherjee Nagar at about 4.30 PM where they met SI Inderpal. According to the witness, his statement was recorded only once that also in the hospital. He has testified that he was accompanied by seven or eight friends, when he reached at Police Station Mukherjee Nagar and he along with Chandan, Anis Raj, Saurabh, Manjit, Pranoy, Mayank, Rajeev and Bunti etc. went to the Police Station. He has admitted that all of them were his fast friends. He has explained that only he, Chandan and Anis Raj went inside the Police Station whereas other friends remained at the gate of Police Station. The witness has further deposed that in his presence, IO did not make any inquiry from his other friends, who were present at the gate of the Police Station and accused Sanjay was also present in the Police Station at that time. He does not remember, if anybody else was also present in the Police Station beside Sanjay. He has further deposed that they remained in the Police Station for about 20 minutes and from Police Station SI Inderpal went to the market and they accompanied him to the market where SI Inderpal inquired if any incident of chain snatching had taken place and he was told by the public persons that no such incident had taken place. According to him, SI Inderpal then left the spot whereas he, Chandan and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 46 Anis Raj remained there and later on went to the hospital and has voluntarily explained that SI Inderpal met them in the hospital. He has further testified that SI Inderpal made inquires on the spot for about 15 minutes from the shopkeepers, but he does not remember from how many persons and from whom, he made inquiries. He does not remember as to how many persons and shopkeepers, SI Inderpal made inquiries as they were receiving repeated phones from the hospital which calls were received on his mobile phone from some PCR officials asking them to reach the hospital as there was nobody with the injured. The witness has also deposed that PCR official was not having his mobile phone and has voluntarily explained that Vicky was having some consciousness at that time, while he was taken to the hospital. According to the witness, Vicky did not talk to him on his mobile phone after the incident but his telephone number and name was given to the police by Vicky. He is not aware, if Vicky had also given the name and number of anybody else also to the police. The witness has also deposed that he was knowing the mobile number of Vicky at the time of incident, but he does not remember his mobile number now. He has testified that they reached hospital at about 6.30 PM. The witness has further deposed that accused Bhagwan Sahai @ Chintu and Vicky met them in the hospital and has voluntarily explained that at that time, wounds of Vicky were being bandaged. According to him, accused Bhagwan Sahai @ Chintu was sitting inside the hospital with a police officer. He is not aware the name of the police officer, with whom St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 47 accused Bhagwan Sahai @ Chintu was sitting but states that SI Inderpal was not present in the hospital at that time and he reached later on. (24) On being asked, if he talked Vicky in the hospital, the witness replied that Vicky was not in a position to talk (Woh is halat main nahi tha, ki baatchit kar sake) and his eyes were blinking. He has testified that he inquired from Vicky as to how he was feeling and he was just saying, Haan, hoon. According to the witness, they remained with Vicky in the hospital, till their statements were recorded and states that his statement was recorded at about 8.30 PM. He has also deposed that statement of Manoj was not recorded as he was not in a position to give the statement and has voluntarily explained that his finger prints (witness has pointed with his left hand thumb) were taken on two/ three blanks papers. The witness has further testified that when they asked as to why he was taking his thumb impression on blank papers, he told them "case kaise banega". On being asked whether the Investigating Officer himself recorded the statement when the thumb impression was taken, the witness replied that he is not aware but the thumb impressions were taken on blank papers. According to him, in his presence, the Investigating Officer did not record anything on those blank papers, on which he took thumb impression of Manoj @ Vicky and the said blank papers were taken by the Investigating Officer to the Police Station and told them "Iski (blank papers having thumb impression) usko jarurat pad sakti hai". He has testified that the Investigating Officer might have left the hospital at about 9.00 or 9.30 PM. The witness has also St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 48 deposed that he, Anis Raj and Chandan accompanied Investigating Officer to the Police Stanton from the hospital and has voluntarily stated that "Chandan ki gawahi likh bhi nahi rahe the, aur kah rahe the, tu jayada mat bol." and they were also not recording their statements correctly saying "Tumahare upar bhi chain snatching ka case lag jayega, tum students ho, in chakkro main mat pado, nahi to life kharab ho jayegi". The witness has also deposed that statement of Chandan was not recorded in his presence in the hospital on that date and only his statement and statement of Anis Raj was recorded in the hospital on that day. He has further testified that police did not obtain his signatures on any documents in the Police Station on that day. He does not remember, if police obtained the signatures of any body else in the Police Station on that date. He has deposed that they left the Police Station at around 10.15 PM and from the Police Station they started for the spot along with SI Inderpal, but in between, he received a call from home on which he went home. The witness has further testified that next day, he himself called SI Inderpal on his mobile phone at about 11:30 AM and informed that Sanjay Dhankad was at his residence and asked the police to arrest him. According to the witness, he called on the landline number of the Police Station and asked the person, who attended the call that he wanted to talk to SI Inderpal but he does not remember the number of Police Station Mukherjee Nagar and has voluntarily explained that the said number is stored in his mobile phone. He has also deposed that he was having the mobile number of SI Inderpal, till he was Investigating Officer of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 49 the case, but after the investigation was transferred to Inspector Dahiya, he didn't keep the same. He has testified that last time he talked with Inspector Dahiya was in March 2011 when he used to call him on his mobile phone. He has further deposed that Inspector Dahiya also called him in the Police Station, three or four times, but he does not remembers the dates or months, on which he was called to the Police Station. He has explained that his earlier statement was modified and Inspector Dahiya made inquires again and again about the incident. When asked if his statement was recorded with regard to registration of a case u/s 308 IPC, the witness replied that he has told the police whatever he had seen (Maine to wahi bataya tha, jo kuch dekha tha). He has also deposed that his interview was also taken by some reporter of TV Channel IBN7 and Delhi AAJ TAK and interview of Anis Raj was also taken by the reporter which was taken after death of Vicky, while he was being shifted to Mortuary for postmortem and has voluntarily explained that "Police wale case darz nahi kar rahe the". He has admitted that many public persons gathered at the time of interview and most of them were students and family members of Vicky. He has denied the suggestion that around 1000 persons gathered there at the time of interview or that 100 or 200 persons gathered there and has voluntarily explained that only 25 to 30 persons were present at the time of interview. According to the witness, TV Channels also showed in their program that police was not registering the case. He is not aware if Inspector Dahiya recorded his statement after the death of Vicky but states that he made inquires from him. He has denied St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 50 the suggestion that his first statement was recorded only after the death of Manoj @ Vicky or that he was not present on the spot or that he did not witness the incident. The witness has further denied the suggestion that his friend Chandan informed the police about the incident of chain snatching or that the news of chain snatching came on the TV Channel or due to that police came under pressure. He has testified that he went to meet Vicky thereafter at Trauma Center on 12.12.2010 as he was shifted to Trauma Center and has voluntarily explained that since he was in ICU, he could not meet him. According to the witness, he was regularly visiting Trauma Center, sometimes alone or sometimes with his friends and Chandan also accompanied him to the Trauma Center on 14.12.2010 in the evening. He has also deposed that generally, they used to remain at the gate and he only went inside once along with the brother of Vicky, who used to remain there. He has further testified that Anis Raj never accompanied him to the Trauma Center to meet Vicky. The witness has further deposed that brotherinlaw (Jijaji) of Manoj, whose name he does not remember informed him about the death of Vicky on telephone but he does not remember the date and time. He has admitted that news of death of Manoj @ Vicky also came in print media and also on T.V. Channel. He has further deposed that he never met SI Inderpal after the postmortem on the dead body of Vicky. According to him, after the death of Vicky, from Trauma Center he went to Police Station Mukherjee Nagar, but he remained outside of Police Station and has voluntarily explained that Media was already present there. He has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 51 testified that from the hospital, he along with his friends and friends of Vicky went to Police Staiton Mukherjee Nagar. The witness has also deposed that his interview was taken by the reporters of TV Channel outside the Police Station and he had not given any interview to any other T.V. Channels.
(25) The witness has further deposed that he knew accused Bhagwan Sahai for the last three/four years and he had told the police in his statement that accused Bhagwan Sahai @ Chintu was a bad element. However, when confronted with his statement U/s.161 Cr.P.C. which is Ex.PW6/D1, the above fact was not found so mentioned but the conduct of accused Bhagwan Sahai @ Chintu is mentioned in the said statement. According to the witness. He also told the police in his statement that accused Sanjay Dhankad and Bhagwan Sahai threatened the deceased Manoj @ Vicky by uttering the words "Jo Beech Main Aaya, Uska Bhi Yahi Haal Karenge", and Manoj was raising alarm "Chhod Do Chhod Do", but both the accused gave merciless beatings to the deceased. When confronted with his statement U/s.161 Cr.P.C. Ex.PW6/D1 the above facts were not found so recorded in this manner. He does not remember, if he told the police in his statement U/s.161 Cr.PC, that one Satish, who is the younger brother of accused Bhagwan Sahai @ Chintu also came there alongwith one rickshaw wala and they all including, Satish, lifted Manoj @ Vicky and thrown him in the said rickshaw and the beatings by all of them including, Satish, continued. He has deposed that he had told the police in his statement U/s. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 52 161 Cr.P.C. that he also went to Police Station Maurice Nagar, where one police official told them that the place of incident falls in the jurisdiction of Police Station Mukherjee Nagar. However, when confronted with his statement U/s.161 Cr.P.C. which is Ex.PW6/D1, the above fact was not found so recorded. He does not remember, if he told the police in his statement that he alongwith Anis Raj came back to the spot and they stopped in front of office of NDPL, as PCR was about to come and location was not clear to the PCR and when PCR arrived there, Chandan was already there. According to the witness, one police official telephoned him on his mobile phone and informed that Manoj had been shifted to BJRM Hospital. He has explained that his mobile number might have been given by Manoj @ Vicky to that police official. The witness has further deposed that he had told the police in his statement that no such incident of chain snatching took place, Investigating Officer went with them to the spot and on verification, he found that no chain snatching was done with Manoj @ Vicky as he was with them at that time and it was only a false allegation. However, when confronted with his statement U/s.161 Cr.P.C. Ex.PW6/D1, the above fact was not found so recorded.
(26) The witness has further deposed that he is not aware if deceased Manoj was residing in the hostel at the time of incident. He has admitted that deceased was his close friend and that he was not having any enmity or friendship with accused Mohan @ Bunty. He has also deposed that he was not having any visiting relations with accused Mohan @ Bunty. He does St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 53 not remember as to on which date, his statement was recorded by the police, whether it was recorded on the same day or on the subsequent day. The witness has also deposed that police inquired him many times, but he does not remember the exact dates of the inquiries nor does he remember as to how many times, police made inquiries from him after the death of Manoj @ Vicky. He also does not remember as to how many statement of him were recorded by the police. According to the witness, after the death of Manoj @ Vicky, police obtained his signatures on three papers i.e. arrest memo, personal search memo and the third document, he does not remember. The witness has further deposed that he has no knowledge if the accused Mohan and Manoj @ Vicky had been confined in lock up in some case at Police Station Model Town. He does not remember, as to who told him the address of accused Mohan @ Bunty and has voluntarily explained that he was residing at Rajpura Village. He has admitted that he is not residing in the Rajpura Village and that he was not knowing the complete address of accused Mohan @ Bunty prior to the incident. He has however denied the suggestion that he named the accused Mohan @ Bunty in his statement U/s.161 Cr.PC at the instance of relatives of deceased Manoj @ Vicky and Vijay, as they were having dispute prior to the incident with accused Mohan @ Bunty. He has also denied the suggestion that no Gamla was thrown by accused Mohan on the person of deceased Manoj @ Vicky or that Mohan @ Bunty did not inflict any injury on the deceased Manoj @ Vicky, or that he was not present at the spot. The witness has further St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 54 deposed that he was present in the hospital, when inquiries were made from Manoj @ Vicky and has voluntarily explained that he was not in his senses. He has testified that police made inquiries from him in the room, outside the hospital. He is unable to tell, as to what time his statement was recorded and has deposed that police was making inquiries and at the same time, they recorded the same. The witness has also deposed that he had not gone through his statement, recorded by the police and has voluntarily explained that police recorded his statement again, but he does not remember its date and time. He has admitted that when the inquiries were making from deceased Manoj @ Vicky, he alongwith Chandan were present and has voluntarily explained that at that time, Manoj was not in his senses and he was only replying, "Haan Aur Hoon".
(27) He has testified that he went to the Police Station on the date of incident, at about 5.00 PM, after relieving from the hospital and prior to that, he did not visit the Police Station on that day. The witness has further deposed that he alongwith Chandan, Anis Raj, Saurav, Manjeet and his some other friends went to the Police Station on that day. According to the witness, Manjeet, Saurav and his other friends were also present at the spot, when PCR Van arrived there, near NDPL Office. He has testified that his friends came at the spot of their own, after he told them about the incident. He does not remember, to whom he informed and called at the spot nor does he remember, by which means, he informed his friends about the incident. The witness has also deposed that they remained at the spot for about 1015 St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 55 minutes. He has admitted that he had not given information to any relative of the deceased Manoj @ Vicky. According to the witness, no relative or any known to Manoj @ Vicky was present at the hospital, when he reached there. He has admitted that he was not accompanied with deceased, when he was sent to the hospital and states that inquiries were made by the police officers from Manoj @ Vicky in his presence. He has admitted that the medical treatment was provided to Manoj @ Vicky in his presence. The witness has testified that he left the hospital after recording his statement and has voluntarily explained that every person was inquired by the police officials, including himself. He has also deposed that he left the hospital after being permitted by the police officials and after meeting with Manoj @ Vicky. He has further deposed that he again visited hospital to meet Manoj @ Vicky after relieving from the Police Station after completing the inquiry from him but he does not remember exact time and states that it was about midnight, when he reached hospital and at that time, Chandan and Vikas were with him. He has also deposed that he reached the Police Station at about 9.00 PM from the hospital. According to the witness, he was allowed to see Manoj @ Vicky, when he visited the hospital in the midnight and has voluntarily explained that he was unconscious. Witness has further deposed that at that time, brother of Manoj @ Vicky met him in the hospital. He has denied the suggestion that he was not permitted by the doctor to meet Manoj @ Vicky, or that he only met with the family members of the deceased Manoj @ Vicky in the hospital, as it was not the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 56 meeting hours in the midnight to meet with any patient in the hospital. (28) Witness has further deposed that it was not a holiday for him or Anis Raj or Manoj @ Vicky on 10.12.2010 and has voluntarily added that he was on leave on that day. Witness has denied the suggestion that he was present in his college on 10.12.2010 at the relevant time or that even his friend Anis Raj was attending his college on 10.12.2010 at the relevant time. He has also denied the suggestion that he did not intervene to save his friend, while Manoj was being beaten up. He has admitted that he did not receive any bodily injuries and that his clothes were also not torn in the process. Witness has further deposed that he alongwith Anis Raj left the spot only after having seen that the injured was removed by the accused persons in a rickshaw, after having uttered that Manoj @ Vicky was a chain snatcher and was being taken to the Police Station. Witness has admitted that he alongwith Anis Raj had met again Manoj @ Vicky in the hospital only on 10.12.2010, after they had left the spot. He has also deposed that they had not come to the spot again on 10.12.2010, after they had left the spot in search of PCR initially and from the hospital, he alongwith Anis Raj accompanied Investigating Officer to the spot. According to him, at the spot shops were open, but he had not noticed whether tea vendor was there or not nor does he remember whether the market was crowded with students at that time or not. He has further testified that the Investigating Officer at that time, accompanied with one or two other police officials. According to the witness he had pointed out the tea vendor to the Investigating Officer, St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 57 the exact spot where the tea vendor was sitting and the incident took place in the day time. He has also deposed that he alongwith Anis Raj, both were interrogated by the police simultaneously at the spot. He does remember as to how long they remained at the spot with the Investigating Officer on that evening. He has further deposed that when they reached the hospital, brother of Manoj @ Vicky was already there in the hospital and he alongwith Anis Raj had not met the Investigating Officer, before he met with the brother of Manoj @ Vicky in the hospital. He does not remember whether besides the plaster on the hands of Manoj @ Vicky (as stated by him earlier), there was bandage fully covering his head. He has denied the suggestion that Manoj @ Vicky was not having any injury on his head, when he reached the hospital and met him on 10.12.2010 or that he had not witnessed this incident on 10.12.2010, or that he was not present on the spot, or that Anis Raj met him only in the hospital in the evening of 10.12.2010, or that he was deposing falsely.
(29) The witness Kapil Dagar has also deposed that he reached the hospital with fourfive friends, including Chandan, Vicky and Anis and they all reached the hospital on motorbikes and they had visited the Police Station before reaching the hospital. According to him, they had accompanied the PCR which removed Vicky to the hospital from Police Station. He does not remember if statement of any witness was recorded in the Police Station at that time. Witness has further deposed that they had not chased the rickshaw in which Manoj was removed by the accused St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 58 persons from the spot. He has denied the suggestion that he along with his friends had visited the hospital to meet Manoj, only after having coming to know in the evening, that Manoj was admitted in the hospital. He has further testified that Manoj (since deceased) was his friend and was junior to him and has voluntarily explained that he was a student in Ramjas College and he (witness) had already passed out of the college. He is not aware about any enmity of Manoj with accused persons and stated that he was meeting Manoj frequently but he is not aware if Manoj was having any criminal antecedents or if Manoj received any head injury in the past, before the incident.
(30) Witness has further deposed that he does not remember, whether blood oozed out from the head of Manoj and except Manoj, he and his other friends were not medically examined. He has admitted that he or his other friends along with him did not complain to the police or hospital authorities in respect of any injuries received by them, on that day. Witness has denied the suggestion that he did not receive any injury on his person, as he was not present at the spot on that day, or that he reached the hospital after getting information about the admission of Manoj in the evening. He has also deposed that statement of Manoj was not recorded in his presence and only his thumb impressions were obtained by the police on blank paper. He does not remember, on how many papers the thumb impression of Manoj was taken by the police. According to the witness he had not given any written complaint, regarding this fact, to the higher authorities, that St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 59 police had taken the thumb impression of Manoj on blank papers. He has denied the suggestion that Manoj had given a statement in his presence to the Investigating Officer at the hospital, wherein he narrated the first hand experience of the incident to the police. According to the witness, the news of the death of Manoj due to the said incident was covered by TV channels, wherein his interview was also flashed in the news channels but he does not remember whether he had stated in the said interview that the thumb impression of Manoj was taken by the police on some blank papers. Witness has denied the suggestion that he is falsely accusing the Investigating Officer, in order to improve upon the version of the deceased Manoj, or that he was having enmity with the accused Sanjay Dhankad, due to which reason he wanted to falsely implicate him. The witness has further deposed that he is not known to any Deshraj nor does he remember if there are independent witnesses of this incident, besides him and his friends. Witness has denied the suggestion that he along with Anis and Chandan introduced several other friends of theirs to become false witnesses in this case. He has testified that on the day of incident, he did not go to his college namely Softdot PTU, at Netaji Subhash Place, from where he was doing his MBA and still his MBA is continuing. Witness has denied the suggestion that on the date and time of incident, he was attending his MBA classes at his college, or that his presence in the college was also marked in the attendance register. He has also admitted that Anis and Chandan were studying in Ramjas College and were not doing MBA with him. Witness St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 60 has denied the suggestion that Anis and Chandan were also attending their classes at Ramjas college at the time of incident or that their attendance was also marked in the respective attendance register of Ramjas College. According to the witness, his statement was recorded by the police, but he does not remember the total number of his statements. He has testified that he had not stated to the police that about any old enmity between Manoj and his friends with accused Sanjay Dhankad @ Nakli and his friends, or that they had been engaged in various scuffles, earlier, or that there are several criminal cases pending against them. However, when confronted with statement Ex.PW6/D1 where it is so recorded. He has also deposed that he had stated to the police that Manoj @ Vicky had tried to save his head with both his hands and in this process he sustained injuries on both hands; that accused had stated "Jo bhi bich mein aayega, uska bhi yehi haal karenge"; that one Satish, who was the younger brother of accused Bhagwan Sahai @ Chintu also came there along with one rickshaw puller and they all, including Satish, lifted Manoj @ Vicky and thrown him in the rickshaw and gave beatings by all of them, including Satish, continuously. However, when confronted with the statement Ex.PW6/D1 the above fact was not found so recorded.
(31) He has further deposed that he along with other friends, including Chandan and Anis, came to know that Manoj was admitted in BJRM Hospital from the Police Station Mukherjee Nagar, where they had reached to find out the whereabouts of Manoj and they had telephonically St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 61 called the PCR and they went along with PCR to Police Station Mukherjee Nagar. He has denied the suggestion that due to old animosity with accused Sanjay Dhankad, he had cookedup a false version against the accused persons, after the death of Manoj in this case. According to the witness, his first statement was recorded in the hospital and whatever was asked from him by the police, he had narrated the same to the investigating officer, as reflected in his statement Ex.PW6/D1 on dated 10.12.2010. Witness has denied the suggestion that his statement was recorded by the police only after the news channels reported the incident after the death of Manoj or that he had not given any statement to the police officials on 10.12.2010. He has also denied the suggestion that Manoj had not suffered any head injury on 10.12.2010 in his presence, or otherwise or that he along with Chandan and Anis Raj cookedup a false story, after the death of Manoj, to falsely implicate the accused persons in this case.
(32) PW7 B.S. Mehta has deposed that he is running an eatery at Shop No.12, DDA Market, Hudson Lane, Kingsway Camp, Delhi under the name and style of Kaveri Delicious Food which shop is situated near the campus area and is on rent. According to the witness, he does not remember the date, month but it was in the year 2010, some quarrel took place there between some strangers. He has testified that he is not known to them and did not see their faces and he only saw that some quarrel was going on. He has further testified that at that time he was present at his shop and he did not go to see as to what had happened since many boys St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 62 surrounded his shop for getting food and that is why he could not see the quarrel. According to the witness subsequently he came to know that some boys had taken away one boy on a rickshaw and he also came to know that it was a matter of chain snatching. He is not aware of any of the assailants and has voluntarily explained that his eye sight is weak and therefore he could not see the faces of the assailants. He has also proved that police never met him in connection of this case and has voluntarily added that he was called at the Police Station on one occasion and noted down his address and thereafter he was relieved.
(33) Since the witness was found resiling from his previous statement given to the Police, hence he has been crossexamined by the Ld. Addl. PP for the State wherein the witness has admitted that the incident was of 10.12.2010 and that the incident had taken place at about 3:00 PM and has voluntarily explained that it was about 3:00PM - 3:30 PM or evening hours. He has denied the suggestion that on hearing the noise, he along with other persons reached at the place of quarrel and he saw that two boys whose name he later on came to know as Sanjay @ Nakli and Bhagwan Sahai @ Chintu were beating one boy namely Manoj @ Vicky with Dandas on the road or that two friends of Manoj Kumar were trying to rescuing him or that he along with other persons also tried to intervene. He has also denied the suggestion that in the meantime one other associate of the assailants also reached there, whose name he came to know later as Mohan @ Bunty and also started giving beatings to Manoj; that all the said St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 63 three boys threatened them to leave the place otherwise they will also give beatings to them and on seen the aggression of the assailants, he along with other persons stepped back. He has further denied the suggestion that all the three boys continued giving mercilessly beatings to Manoj Kumar @ Vicky; that Mohan @ Bunty lifted a flower pot/ Gamla which were lying in the Gali and hit the same on the head of Manoj @ Vicky; that the friends of Manoj telephoned the police as Manoj was almost halfdead (Adhmara) after which the assailants took him on a cycle rickshaw and uttered the words "Isne humari sone ki chain todi hai. Ise thane le ja rahein hai". The witness has also denied the suggestion that after some time police reached the spot and made inquiries; that all the assailants were asking them by names to each other at the time of incident; that friends of injured also told their names while asking and he came to know their names and identity from the friends of the injured. However, when confronted with his statement Ex.PW7/A the above facts were found so recorded. The accused Sanjay Dhankad, Bhagwan Sahai and Mohan @ Bunty were specifically put to the witness, to which the witness pleaded his ignorance. He has denied the suggestion that due to fear of the accused persons he is deposing falsely or that that he has been won over by the accused person. (34) This witness has not been crossexamined by the Ld. Defence Counsels despite opportunity granted in this regard. (35) PW14 Sh. Ajay Kumar is the elder brother of the deceased. He has deposed that he is a private photographer and Manoj Kumar @ St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 64 Vicky aged about 18 years was his younger brother and earlier they were residing at Rajpura Gurmandi Delhi on rent basis. According to the witness, birth of Manoj Kumar @ Vicky took place at their house 248, Rajpura, Gurmandi, Delhi and Manoj Kumar was having friendship with Ajay Kumar, R/o Rajpura, Gurmandi Delhi and Manoj was also having friendship with Chandan, Anis Raj, Kapil Daggar. Witness has further deposed that on 10.12.2010 he received a phone call from Chandan that Sanjay @ Nakli and his friend had given a merciless beatings to Manoj Kumar @ Vicky in the Hudson lane, DDA market, Mukherjee Nagar area. According to him at the night time he went to BJRM Hospital where he found his brother Manoj Kumar @ Vicky in injured condition. Witness has further deposed that on 18.12.2010 Manoj was declared dead by the doctors due to injuries and he identified the dead body of his brother Manoj Kumar @ Vicky vide his statement Ex.PW14/A. According to the witness after postmortem dead body was handed over to them vide Ex.PW14/B. He has correctly identified the accused Sanjay Dhankad in the Court. (36) Leading questions were put to the witness by the Ld. Addl. PP for the State, wherein the witness has admitted that Sanjay Dhankad @ Nakli is also a resident of Rajpura, Gurmandi Delhi. He is not aware whether Sanjay Dhankad @ Nakli and his associates were having any enmity with Ajay Kumar, friend of his brother Manoj Kumar. He has admitted that frequent quarrels took place between the Sanjay Dhankad @ Nakli and his associates with Ajay Kumar and his friends; that his brother St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 65 Manoj Kumar @ Vicky was the friend of Ajay Kumar that is why Sanjay @ Nakli and his friends were also against his brother Manoj and used to quarrel with him.
(37) Witness has further admitted that on 10.12.2010 Kapil Dagar, Anis Raj and Chandan Kumar friends of his brother Manoj Kumar informed him that Sanjay, Bhagwan Sahai and Mohan Singh gave beatings to his brother Manoj Kumar in Hudson lane, DDA market at about 3 PM by dandas mercilessly. He has also admitted that his brother Manoj Kumar was also medically treated at Shushutra Trauma Center. He has also identified the accused Bhagwan Sahai and Mohan Singh @ Bunty in the Court. (38) In his cross examination by Ld. Defence counsels, witness has deposed that they have been residing at the address of Sant Nagar for about two years and at the time of incident they were residing at Mukundpur and deceased Manoj was also residing with them at Mukudpur and was 12th passed. According to the witness he was not studying any where at the time of incident but was applying for study in the college. The witness has also deposed that he has no personal knowledge about any quarrel and enmity between accused Sanjay and his brother deceased Manoj. He has admitted that in his knowledge deceased Manoj was not having enmity with him. The witness has also admitted admitted that he is not aware the address of accused Sanjay, Mohan and Bhagwan Sahai. He has deposed that he never gave the address of accused Sanjay to the police. However, when confronted with his statement Ex.PW14/DX1 the address of accused Sanjay St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 66 @ Nakli is written as 94, Rajpura, Gurmandi, Delhi. He also does not remember the house number and parentage of Ajay, friend of Manoj. However, when confronted with statement Ex.PW14/DX1 the address of Ajay Kumar is found written. According to the witness he did not inform police about the enmity between the accused Sanjay Dhankad and deceased Vicky. However, when confronted with his statement Ex.PW14/DX1 the above fact was found recorded. Witness has admitted that his statement was recorded by the Investigating Officer only after the death of his brother Vicky. He has admitted that in the month of September, 2010 Vicky had a quarrel with someone in which he had received a head injury. He is not aware if Vicky had lodged a criminal complaint against the assailant. He has admitted that Vicky was getting treatment for the head injury received by him in that quarrel. He has testified that on 10.12.2010 he received an information at about 45 PM about the incident of this case from the friends of Manoj @ Vicky on which he reached BJRM hospital at around 78 PM on 10.12.2010 and met Manoj @ Vicky who was unconscious at that time. Witness has denied the suggestion that he was deposing falsely against the accused persons in order to falsely implicate him in the present case and attribute the death of his brother Manoj @ Vicky on them. (39) PW15 Rajesh Patel is the brother in law/ Jija of the deceased. He has deposed that he is doing a private job and deceased Manoj Kumar @ Vicky and his family members were residing at house No. 248, Rajpura, Gurmandi. According to the witness, Manoj Kumar was having friendship St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 67 with Anis Raj, Kapil Dagar and Chandan but he is not known to other friends or enmities of Manoj Kumar. He has however deposed that Bhagwan Sahai, Sanjay and Mohan used to harass deceased Manoj Kumar @ Vicky and demanded money from him. He has testified that on 10.12.2010 at about 3:00 PM Chandan, Anis and Kapil Daggar informed them that Bhagwan Sahai, Sanjay and Mohan gave beatings to deceased Manoj @ Vicky at DDA Market and he was shifted to BJRM Hospital on which he (witness) went to BJRM hospital where he found Manoj seriously injured in BJRM Hospital. The witness has also deposed that Manoj informed him that Bhagwan Sahai, Mohan and Sanjay gave beatings to him mercilessly and he found many injuries on the body of Manoj. According to the witness Manoj was serious, therefore he was shifted to Trauma Center, Civil Lines for medical treatment where he was admitted in the ICU for about seven days and on 18.12.2010 Manoj was declared dead by the doctors. According to the witness, he identified the dead body of Manoj at the Mortuary of BJRM hospital vide Ex.PW15/A and after postmortem dead body was handed over to them vide Ex.PW14/B. He has correctly identified the accused Sanjay Dhankad, Mohan and Bhagwan Sahai in the Court.
(40) Leading questions were put to the witness by Ld. Addl. PP for the State wherein the witness has denied the suggestion that Manoj Kumar was residing in Bunkar colony at the time of incident and has voluntarily added that he (witness) was residing in the Bunkar colony. Witness has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 68 admitted that Ajay Kumar resident of Rajpura, Gurmandi was the friend of Manoj Kumar @ Vicky and that accused Sanjay is also resident of Rajpura, Gurmandi, Delhi. He is not aware whether accused Sanjay was having enmity with Ajay Kumar, friend of Manoj Kumar @ Vicky and he came to know that the accused Sanjay and his friends used to quarrel with Ajay and his friends. Witness has admitted that being the friend of the Ajay Kumar, accused Sanjay and his friends were against his brother in law Manoj @ Vicky. He has denied the suggestion that accused Sanjay and his friends used to quarrel with Manoj Kumar due to his friendship with Ajay Kumar. Witness has further deposed that being the relative of Manoj he used to intervene in the matters and that is why he came to know about the quarrels. (41) In his cross examination by Ld. Defence counsels the witness has deposed that he knew that the accused persons were residing at Rajpura, Gurmandi but he is not aware their exact addresses and parentage. He has also deposed that police recorded his statement on 11.12.2010 at Police Station Mukherjee Nagar. According to the witness he got the information about the incident from the friends of deceased Manoj @ Vicky at about 3:00 PM on 10.12.2010 and had reached the Police Station Mukherjee Nagar at about 4:30 PM. He has testified that he had met a few friends of the deceased Manoj @ Vicky at the Police Station but he is not aware of their names or their whereabouts. Witness has also deposed that he also met SI Inderpal in the Police Station and some Constable had informed him that Manoj @ Vicky was send to BJRM Hospital. Witness has further deposed St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 69 that he had reached the BJRM hospital at about 7 PM and remained there for about one hour. He has testified that SI Inderpal did not reach the hospital in his presence and his brother in laws namely Vikram and Karan were present in the hospital. According to him, threefour friends of Manoj @ Vicky were also present in the hospital but he is not known to them. Witness has further deposed that when Manoj had disclosed to him about the incident both Vikram and Karan were present in the vicinity and Manoj had spoken with him for about five minutes. Witness has denied the suggestion that Manoj had not disclosed the name of assailants. He has also deposed that his no other statement was recorded by the police after 11.12.2010. He has also denied the suggestion that his only statement was recorded by the police only after the death of Manoj @ Vicky. According to the witness he had been regularly following up the trial of this case even before getting the summons from the court. He is not aware about any quarrel of Manoj @ Vicky in September 2010 wherein he received head injuries and has explained that he was not in Delhi at that time. Witness has admitted that after he came back to Delhi from his native village he came to know that Manoj @ Vicky had received a head injury but he cannot tell how he had received the same. Witness has further deposed that he came back from his native village in the month of November, 2010. Witness has denied the suggestion that he is not known to the accused persons or any animosity of Manoj @ Vicky with them or that he has falsely identified the accused persons in the court as he had been watching them being tried in this court. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 70 (42) PW18 Sh. Ajay Kumar has deposed that he is working as a supervisor in the MCD parking at Lajpat Nagar and he knew Manoj Kumar @ Vicky who was earlier residing at Rajpura, Gurmandi, Delhi on rent and later on shifted to Mukundpur and was his friend. According to the witness he knew Sanjay @ Nakli who is also residing at Rajpura, Gurmandi, Delhi and has been residing near his house and has a good relationship with him earlier. He has also deposed that his (witness's) elder brother was doing the business of committees and father of Sanjay used to take part in the committees and there was a dispute of the money of the committees. Witness has further deposed that father of Sanjay did not pay the committees amount and a quarrel took place between his brother and Sanjay regarding the money of the committees pursuant to which Sanjay and his friends gave beatings to his younger brother and a police case was registered in this regard wherein he (witness) was an eye witness of the incident. According to him, thereafter Sanjay and his friends were having enmity with him and his family members and some false cases were lodged by the Sanjay and his family members against them. He has specifically deposed that Sanjay and his friends were also having enmity with him and his all friends who used to talk with him. He has testified that on 10.12.2010 at about 3:30 PM he received a phone call from the friends of Manoj Kumar @ Vicky and informed him that Sanjay and his friends Mohan and Bhagwan Sahai gave beatings to Manoj @ Vicky in St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 71 the Hudson lane by dandas. The witness has also deposed that Manoj @ Vicky also talked with him on phone and informed him that Mohan, Bhagwan Sahai and Sanjay gave beatings to him by dandas and he came to know that Manoj was admitted in BJRM hospital in injured condition. He has further deposed that he also reached at BJRM Hospital and thereafter Manoj was shifted to Shushruta Trauma Center, Civil Lines. Witness has further deposed that on 18.12.2010 Manoj was declared dead by the doctors. He has correctly identified the accused Sanjay, Bhagwan Sahai and Mohan in the court.
(43) In his cross examination by Ld. Defence Counsels the witness has deposed that he knew the deceased Manoj @ Vicky for about twothree years prior to his death. He is not aware as to how many members were there in Manoj's family as he had not much concern with them. Witness has admitted that Manoj was 1015 years younger to him. He has further deposed that Manoj was studying but he is not aware in which school or college nor is he aware whether any police case was registered against deceased Manoj or not. The witness has also deposed that his brother Ramesh who was doing the business of committees, had expired. According to him, at the time of incident Manoj and his family members were residing at Mukundpur. The witness has further deposed that he had met deceased Manoj one day prior to the day of incident and his nephew Vikas informed him about the incident at about 3:30 PM. He is unable to tell the exact time when he reached the hospital and has voluntarily added St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 72 that it must be around 6 PM and has explained that when he reached the hospital Manoj was being shifted to the trauma center. Witness has also deposed that he had spoken to Manoj on telephone at around 4:304:45 PM but he did not tell the police that he had spoken to Manoj on telephone at around 4:304:45 PM. Witness has denied the suggestion that he did not tell this fact to the police because there was no such conversation and he has introduced this fact on legal advise. Witness has further deposed that his statement Ex.PW18/DX1 was recorded on 22.12.2010 and his statement was not recorded prior to 22.12.2010. According to the witness, he had also not joined investigations of this case prior to 22.12.2010 and he has no personal dispute with the family of Sanjay Dhankad and has voluntarily added that his brother had a financial dispute with the father of Sanjay Dhankad in respect of which a court case is pending. Witness has denied the suggestion that in view of enmity of his family with the family of Sanjay Dhankad he has been introduced as a witness in the present case at the instance of the family of the deceased. According to the witness, he was involved in three criminal cases and has voluntarily explained that out of the same one case is in respect of the incident of family of Sanjay Dhankad and in one case Sanjay Dhankad is coaccused with him. Witness has admitted that Sanjay Dhankad is a complainant in a case registered against him at Police Station Model Town. According to the witness, he has never been convicted in any matter and his nephew Vikas and his five other family members has been convicted in case FIR No. 278/08, Police Station Model Town vide order St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 73 dated 23.04.2011 by this court. Witness has denied the suggestion that he was an interested witness or that he was deposing falsely only to seek the revenge regarding the conviction of his other family members in the other case or that it is for this reason that the other witnesses have been introduced at his instance in this case. Witness has also deposed that he knew the friends of deceased Manoj @ Vicky namely Anis Raj, Chandan Kumar and Kapil Daggar but not Desraj and has voluntarily added that they all used to remain along with deceased Manoj @ Vicky. Witness has denied the suggestion that Anis Raj, Chandan Kumar and Kapil Dagar are deposing falsely on his instance and asking. Witness has admitted that one case i.e. FIR No. 186/08, Police Station Model Town, is pending against him in which accused Mohan Singh is the complainant and has voluntarily added that same is a false case. He has also admitted that he is not an eye witness to the incident.
(44) PW19 Sh. Rajiv Saini has deposed that he is a property dealer by profession and is doing the business by the name of Rajiv Properties and Dev Raj is his friend who is having a business of garments supply. According to him on 10.12.2010 at about 3:00 PM he along with Dev Raj were present at the Sainik Snacks at Hudson Lane, DDA Market for taking tea etc. and when they were taking tea in front of the Sainik Snacks they heard noise of quarrel and there were two boys who were abusing another boy and also giving beatings to him by the fist and leg St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 74 blows. According to the witness, one more person came there and also gave beatings to the said victim boy and brought the said victim boy to the place where the washerman was doing the ironing work where the victim boy fell down on the ground and one assailant took out a danda from the roof of hut of the washer man and gave danda blows to the victim boy and another assailant also took one danda from the same place and gave danda blows to the victim boy. Witness has further deposed that the victim boy was requesting the assailants not to give danda blows to him but all the three assailants continued to give danda blows to the victim boy and they were saying "isko aaj chhorna nahi hai, maaro isko". According to the witness, one assailants took one cemented pot (Gamla) with plant from the outside of the nearby house and hit the same on the head of the victim boy and the pot (Gamla) had broken in pieces after which one of the friend of the victim made a call to the police. The witness has also deposed that thereafter the aforesaid three assailants put the victim boy in a rickshaw and took away the said victim boy from there by saying that the victim boy had snatched their golden chain and they were taking him to the Police Station. According to the witness, after ten minutes a PCR van came there and police made inquiries from the public collected there. Witness has further deposed that police also made inquiries from them and they told the aforesaid facts to St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 75 them. The witness has also deposed that three friends of the victim Vicky were also present there and he came to know their names as Kapil, Anis and Chandan and he also came to know the name of assailants as Nakli, Chintu and Bunty.
(45) The witness has pointed out towards the accused Sanjay @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty and identified them correctly as the assailants. The witness has pointed out towards the accused Mohan as the person who had hit the injured with the Gamla / flower pot and the accused Sanjay and Bhagwan Sahai as the person who had inflicted danda blows on the injured. The witness has further added that the shop owner of the Sainik Snacks had gone to intervene and settle the quarrel but the accused also showed him the danda and threatened him on which he backed out being scared and nobody dared to intervene.
(46) In his cross examination by Ld. Defence Counsels, the witness has deposed that even on the day of his examination he was using the same mobile number which he was using on the day of the incident i.e. 9810796404. He is not known to the family of the deceased nor is he on speaking terms with them. Witness has denied the suggestion that he has been regularly in touch with the family of the deceased which can be reflected from the record of his mobile. Witness has further deposed that he did not make any 100 number call nor he intervened himself in the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 76 quarrel and has voluntarily explained that nobody was in a position to intervene because of the threats issued by the accused. Witness has further deposed that on the day of the incident he did not go to the Police Station to report the same and has voluntarily added that later on he was called for investigations. According to the witness he did not leave his details i.e. name and telephone with any other person at the spot to inform that he was an eye witness and was ready to give evidence in this case. Witness has further deposed that the day he had gone to the Police Station, his statement was recorded on the same day and has voluntarily added that when the police had come to the spot to investigate he and Devraj had gone there and told them that they had seen the incident and he gave his name and mobile number to them on which he was called to the police station. Witness has further deposed that the day he had given his mobile number and details to the police they were called to the Police Station after about 15 days. According to the witness, he had given his number to the police after about week of the death of the deceased but he does not recollect the date on which his statement was recorded. Witness has denied the suggestion that he and Devraj have deliberately introduced themselves as witnesses in the present case on the asking of the family of the deceased or that he and Devraj had never witnessed the incident or that it is for this reason that he did not meet the police on the day of the incident or report the matter to them. He has testified that his statement was recorded in the police station by Mr. Dahiya in the evening. According to him, both he and Devraj St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 77 himself had gone to the Police Station together and has voluntarily added that their statements were recorded separately. He has also deposed that he has never deposed in any case in any court of law previously and was not known to any of the accused persons previously. The witness has further deposed that he had given their names as he had heard the same at the spot. He is not aware of the first name of the accused persons and he came to know of the names of Sanjay @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty at the spot because he had seen these boys calling out to each other by these names and has voluntarily added that he can identify these boys by pointing out but he cannot tell who is Sanjay @ Nakli, who is Bhagwan Sahai @ Chintu and who is Mohan Singh @ Bunty because he had only heard these names at the spot. It has been observed by this Court that the witness has identified the accused only by pointing out towards them and not by name.
(47) The witness Rajiv Saini has further explained that he had come to know of the names mentioned above through Anis Raj, Kapil Daggar and Chandan Kumar at the spot and has voluntarily added that they were calling out to each other by their names. He has denied the suggestion that he was deposing falsely at the instance of Anis Raj, Kapil Dagar and Chandan Kumar who are personally known to him. According to him the gamla was cemented and was having a plant which was about one feet wide and one and a half feet in height. He has further deposed that he St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 78 had witnessed that the cemented gamla had struck the head of the injured at the spot. He has denied the suggestion that there was no head injury on the injured. According to him he was about 15 steps away from the spot and remained at the spot for 1015 minutes after the injured was removed by accused persons in a rickshaw. He has testified that police had arrived at the spot in his presence and he did not state anything to the police officials who came to the spot and were inquiring about the incident from the public gathered there. Witness has further deposed that Devraj also did not tell anything about the incident to those police officials. He has denied the suggestion that he and Devraj were not present at the spot. According to the witness, there were about 7080 peoples at the spot and two of the friends of deceased Manoj @ Vicky had gone after the accused persons and the third friend brought the police officials at the spot. The witness has also deposed that he and Devraj did not speak to the friends of the deceased or to the shopkeepers having shops around the spot. He has also stated that the injured was in a semiconscious state of mind and has voluntarily explained that he was not in a position to stand up due to injuries. Witness has further deposed that he reached at the spot at about 2:302:45 PM and he remained at the spot upto 3:353:40 PM. According to the witness, he runs his business from his residence at Kalyan Vihar which is about 2 ½ - 3 KM from the spot and came at the spot along with his friend Devraj by a two wheeler scooter. According to the witness, Devraj came to his house by a scooter and picked him up from the market near Kalyan Vihar and thereafter St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 79 they went to the spot. He has stated that the fourth boy also came at the spot and brought a rickshaw. The witness has further deposed that he could not gather the name of the fourth boy as they had left the spot, sometime after the incident. Witness has further deposed that he had not told the police that the accused was having animosity with the deceased. However, when confronted with his statement Ex.PW19/DX1 the above fact was found so recorded. According to the witness he was in Rishikesh when he saw on News Channel about the death of injured. He is not aware the date on which the injured passed away. He has testified that he had not stated the date of death of Manoj @ Vicky to the police in his statement. However, when confronted with his statement Ex.PW19/DX1 the above fact was found so recorded. According to the witness, he is not aware in which hospital Manoj @ Vicky died and had not stated so to the police. He has admitted that he had never seen the accused persons prior to the incident. He has also admitted that he had never seen the accused persons after the incident and that he had seen the accused persons on the day of his deposition and identified them first time after the date of incident. According to the witness he had come in the court in the present case even previously and has voluntarily added that he had come on a previous date before the Predecessor Court and on the said date there was nobody i.e. neither the Ld. Court, nor the accused and a date had been given. Witness has denied the suggestion that he had been coming regularly to the court and had been shown to the accused persons on account of which he has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 80 identified them on the day of his deposition. Witness has also denied the suggestion that he has given his testimony on the day of his deposition on the basis of tutoring by the Investigating Officer and by the family of the victim and on their asking or that he was an interested and planted witness on account of which he has falsely identified the accused persons in the court on the day of his deposition. Witness has further deposed that he is not known to any Ajay S/o Baliram and is not involved in any case. Witness has denied the suggestion that he is friend of Ajay S/o Baliram who is responsible for introducing him in the present case. Witness has denied the suggestion that no such incident was witnesses by him. (48) PW20 Raju Mathur has deposed that he used to iron the clothes in front of the House No. 2673, Hudson Lane, DDA Market Delhi. According to him, 10.12.2010 at about 3:00 PM he went to Kalyan Vihar to deliver the ironed clothes at a distance of one and a half kilometer from his work place and when he returned back at about 4:30 PM at his working place he saw many public persons there and he came to know from the public person that a quarrel took place. However, no quarrel took place in his presence and he does not know who caused injuries to whom. (49) Since the witness was found resiling from his earlier statement, hence he was crossexamined by the Ld. Addl. PP for the State wherein the witness has deposed that police met him on 11.12.2010 after one day of the incident and made inquiries from him but his statement was not recorded by the police. According to the witness, he is not know to any person by the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 81 name of Manoj @ Vicky, Sanjay @ Nakli, Bhagwan Sahai @ Chintu and Mohan @ Bunty. He has denied the suggestion that police recorded his statement on 11.12.2010 or that on 11.12.2010 at about 3.00PM while he was present at his working place, he saw that a quarrel took place between some boys and they were talking loudly and he also saw that one person whose name he came to know later on as Sanjay @ Nakli caught hold another boy whose name he came to know later on as Manoj @ Vicky and another boy whose name he came to know as Bhagwan Sahai as Chintu came to his working place and took out one danda from the roof of his hut and gave danda blows to Manoj Kumar after which Manoj Kumar fell down and Sanjay @ Nakli also came to his work place while running and took out another danda from the roof of his hut and he gave also danda blows to Manoj Kumar @ Vicky. He has also denied the suggestion that on 11.12.2010 he had told the police about the above facts. However, when confronted with his statement Ex.PW20/DX1 the above facts were found so recorded. He has also denied the suggestion that the two friends of Manoj Kumar also tried to save Manoj Kumar and he also tried to intervene but third assailant namely Mohan @ Bunty also came there and also gave beatings to Manoj and they threatened them to give beatings if they intervene and thereafter they kept away from there and all the three assailants gave danda blows to Manoj Kumar and Mohan @ Bunty took out one flower pot and hit the same on the head of the Manoj Kumar @ Vicky. He has further denied the suggestion that he had stated to the police the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 82 above facts but when confronted with his statement Ex.PW20/DX1 the above facts were found so recorded. He has also denied the suggestion that the friends of Manoj Kumar made a call to the police and all three assailants gave merciless beatings to Manoj Kumar and he became unconscious and they took him away in a rickshaw by saying that he had snatched his gold chain and they were taking him to the police station. He has denied having told the police about the above facts. However, when confronted with his statement Ex.PW20/DX1 the above facts were found so recorded. He has denied the suggestion that he has been won over by the accused and this is the reason that he is not supporting his earlier version given to the police Ex.PW20/DX1.
(50) This witness has not been crossexamined by the Ld. Defence Counsels despite being granted an opportunity in this regard. (51) PW21 Chandan Kumar is also an eye witness to the incident. He has deposed that he is perusing Eco (Maths) from Satyawati College and is residing in Delhi at B68, DDA Apartments, Kalyan Vihar, since the year 2009. According to the witness on 10.12.2010 at about 3:00 PM he along with his friend Vicky, Kapil and Anis had gone to take tea at Saini Tea Stall, DDA Hudson Lane and while they all were taking their tea, he received a telephone call from his one friend on his mobile phone No. 9540000124 but name of that friend he was not recollecting. Witness has further deposed that while talking to his said friend over telephone, he went backside St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 83 portion of the DDA Market and when he returned back to Saini Tea Stall, he saw that there was a verbal altercation tutu mainmain between Sanjay Dhankar and Vicky @ Manoj. He has testified that he knew Sanjay Dhankar whom the witness has identified in the Court since he was residing in their locality and noticed a scuffle between Sanjay Dhankar and Vicky @ Manoj. Witness has further deposed that accused Sanjay Dhankar was having danda in his hand and started giving beatings to Manoj Kumar @ Vicky who was his friend. According to the witness Sanjay Dhankar was accompanied with two / three other more persons to whom he can identify by face. The witness has correctly identified the accused Bhagwan Sahai and Mohan Singh present in the court. According to him the accused Mohan Singh assaulted on the person of Manoj Kumar with a pot (Gamla) and accused Bhagwan Sahai was also having a danda in his hand and was assaulting Manoj @ Vicky with danda. He has further deposed that all the three accused persons were also associated with fourth person whose name he came to know later on as Satish and thereafter he made a call at 100 number. According to the witness he could not take the option due to fear to save Manoj Kumar @ Vicky from the clutches of the accused persons as they were armed with the dandas and pot. Witness has further deposed that thereafter he received a responding call St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 84 from PCR as they were not came to know the exact location of the place of incident and thereafter he went to behind the office of NDPL to receive the PCR officials. According to him, they interrogated him and he disclosed all the facts to them whatever he had witnessed and in the meantime Anis and Kapil Dagar came at the spot when he was present with the PCR officials. Witness has further deposed that thereafter twothree their friends incidentally reached at the place where he along with PCR official was standing.
(52) The witness has also deposed that thereafter he explained the way to the spot of incident to the PCR officials and they proceeded to the place of incident where accused persons were giving beatings to Manoj and he proceeding on foot for the spot of incident. According to him, when he reached at the place of incident he noticed that accused persons were taking the injured Manoj in a rickshaw while crying that Manoj @ Vicky had snatched the chain and subsequently he came to know that they took Manoj to the Police Station Mukherjee Nagar. He has also deposed that on the very same day at about 6.00/6.30PM he went to BJRM Hospital, Jahangir Puri where Manoj was found admitted and was in semi conscious condition having a plaster on his both hands and was crying with the pain of the injury and was saying "theek haitheek hai". According to the witness, thereafter he (Manoj @ Vicky) became unconscious and when police came in the hospital, they made formal inquiry from him and after some days he was called at the police station where his statement was St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 85 recorded. Witness has further deposed that thereafter he came to know that Manoj Kumar was shifted to the Trauma Center, Civil Lines where he scummed to injuries.
(53) In his cross examination by the Ld. Defence counsel, witness has deposed that his statement was recorded by the police only once. He does not remember as to after how many days his statement was recorded nor does he remember whether his statement was recorded before or after the death of Manoj Kumar @ Vicky, however he was sure that his statement was not recorded on the day of incident or even on the next day of incident. According to the witness, he knew accused Sanjay Dhankar even before the date of incident as he was living in the same locality where he was residing. Witness has admitted that he did not know Mohan @ Bunty and Bhagwan Sahai @ Chintu before the incident and has voluntarily added that he came to know of their names etc. after the incident as other friends including Kapil were discussing their names. He is unable to tell whether he was aware about any enmity between Sanjay Dhankar and Monoj @ Vicky. He has deposed that at the time of incident he was in Second year of Economic (Maths) in Satyawati college and was in first year of the course at the time of incident. He has testified that he was studying in the evening of the college and did not go to the college on the day of the incident and the college shift started at 2.40PM. Witness has denied the suggestion that he had attended the college on that day. Witness has admitted that the mobile phone number 9540000124 is not in his name and has deposed that the said St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 86 phone is in the name of one Avinash Kumar but the said phone number is not being used by him any more and is not operative. Witness has denied the suggestion that he did not make any call to the PCR. He does not remember whether he told to the police while his statement was being recorded that he got responding call from PCR. According to the witness, he had gone to NDPL office and met the PCR Official and directed them to the spot of incident. However, when confronted with his statement Ex.PW21/DX1 where the above fact was not found so recorded. (54) He has further deposed that he had met three male police officials only in the PCR Van and there was no lady police official in the said PCR van and NDPL Office was hardly two minutes of walking distance from the spot of incident. According to the witness PCR officials had recorded in writing whatever he narrated to them and his other friends namely Kapil and Anis came to the NDPL office after about 57 minutes of his locating the PCR. Witness has denied the suggestion that he had not witnessed the alleged incident or that he have been introduced later on in this case. He has also denied the suggestion that he did not meet any official of PCR and for this reason nothing has been on record as falsely stated by him in respect of PCR reaching the NDPL Office on his phone call. According to the witness, he reached back the spot prior to reaching of PCR officials there and he was not present at the spot when PCR officials reached at the spot as he and his friends Kapil and Anis and others had already left the spot before the PCR reached the spot. Witness has denied St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 87 the suggestion that he has concocted a false story at the instance of the relatives and friends of the deceased Manoj @ Vicky or that he had not seen any of the accused persons quarreling with or giving beatings to Manoj @ Vicky. He has admitted that after having left the spot he had gone back to his house and has voluntarily added that he came back alone on the spot in the evening with police officials. He does not remember whether the pot (Gamla) was having any plant however the pot was about one feet in height. He is unable to tell about the width of the said pot and the pot was made of cement and when he saw the same, it was in broken condition. Witness has denied the suggestion that Manoj @ Vicky was not hit by anyone using a "Gamla" or was not hit by any one on his head on the date of incident. According to the witness, he is not aware whether Manoj @ Vicky was involved in several criminal cases or whether he received a head injury a few months prior to the date of incident in some other quarrel dated 04.08.2010 for which he was under regular treatment. He is also unable to tell if the statement of Manoj @ Vicky was recorded at the hospital by he police officials in his presence. Witness has further deposed that there was a doctor attending to Manoj @ Vicky when he uttered the words "theek hai theek hai" to them and the same doctor continued to be there even when Manoj @ Vicky went unconscious in his presence. He is also unable to tell whether there was a doctor with the police official when statement of Manoj @ Vicky being recorded as he was not present by the side of Manoj @ Vicky at that time or whether his other friends including Kapil Dagar, Anis St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 88 Raj, Saurabh, Govind etc., were present in the hospital with him or with Manoj @ Vicky. He does not remember whether he stated to the police in his statement Ex.PW21/DX1 that Manoj @ Vicky uttered the words "theek hai - theek hai" and thereafter became unconscious. However, when confronted with his statement Ex.PW21/DX1 where the above fact was found not so recorded. According to the witness, he did not give his statement to the police on 10.12.2010 but when confronted with statement E.xPW21/DX1 the date was found mentioned as 10.12.2010. (55) According to the witness, Manoj @ Vicky died on 18.12.2010 but he is not aware when Manoj @ Vicky was shifted to Trauma Center, Civil Lines. He has admitted that he was present at the Trauma Center on 18.12.2010 when he alongwith other friends and relatives of Manoj @ Vicky, created a hue and cry in front of the hospital which was covered extensively by the media. The witness has testified that he was interviewed regarding the incident and death of Manoj @ Vicky by the media and he had not given any statement to the police after his interview to the press / media. He has also deposed that he was not called or interrogated by the police officials until he gave a written application to a senior lady police official claiming himself to be the maker of the call at 100 number. He does not remember the date when he gave the written application to include him as a witness in this case. He is unable to even tell any approximate date or days after which he lodged his complaint as it is St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 89 been about two or three years from the date of incident. Witness has further deposed that Manoj @ Vicky was closed to him as he was his student taking tuitions from him in mathematics and he used to spend most of his time with him. The witness has testified that he had never gone to the house of Manoj @ Vicky. He is unable to tell about its location and states that he used to teach Manoj at his residence. Witness has further deposed that Manoj was known to him from sixseven months prior to the incident and he had never met accused Sanjay Dhankar before the incident. Witness has denied the suggestion that he has been deliberately introduced as a false witness after the death of Manoj @ Vicky in order to falsely implicate the innocent person including accused Sanjay Dhankar with whom Manoj @ Vicky was inimical. He has also denied the suggestion that accused Sanjay Dhankar was not present at the spot as he was attending the court of special Executive Magistrate at the alleged time and date of incident. He has admitted that earlier also he had come to the court in the present case four five times and has voluntarily added that his statement could not be recorded.
(56) PW27 Sh. Rajender Singh has deposed that he is residing at B87, MIG flats, Loni road, Delhi along with his family and he is an Ex Army Man and is running a shop of snacks at shop No. 16 DDA market Hudson Lane since 1997. According to the witness it was winters of the year 2010, date he does not recollect, he was at his shop when at about 23 PM he heard the noises of young boys running here and there and of the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 90 quarrels and he saw these boys running here and there. According to him large number of public persons were also present. He is not aware what was happening and he was making parantas in his shop and saw one boy being taken away by public persons. Witness has further deposed that later police officials also came to the spot but he is not aware who were the persons who were quarreling and the jhagra had taken place in front of house No. 2672, Hudson lane which is away from his shop. Witness has further deposed that the boys who were running here and there were the boys who normally come to the market and he cannot identify the said boys, they were not present in the court.
(57) Since the witness was resiling from his previous statement made to the police, the witness was crossexamined by the Ld. Addl. PP for the State wherein he has deposed that he does not recollect if the date of incident is 10.12.2010 but has admitted that the police had interrogated him one day after the incident. Witness has denied the suggestion that he had told the police that at around 3 PM when he was sitting in his shop he heard the verbal altercation between the boys and he saw two boys were hitting one other boy with dandas in front of the road; that he had told the police that later he came to know that the names of these boys were Sanjay @ Nakli and Bhagwan Sahai @ Chintu and the boys whom they were hitting with dandas was Manoj Kumar @ Vicky. Witness has also denied the suggestion that he had told the police that the third associate whose name he later on came to know as Mohan @ Bunty also joined in with dandas; that St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 91 all these boys were hitting Manoj Kumar @ Vicky and all those public persons who were trying to intervene to stop them; that when they tried to intervene and told these boys not to indulged into the beating, the said boys also threatened them on which they removed ourselves from the spot whereas these boys continued to hit Manoj Kumar @ Vicky. (58) The accused Sanjay Dhankad, Bhagwan Sahai and accused Mohan Singh @ Bunty were specifically put to the witness by the Ld. Addl. PP for the State as the boys who were hitting Manoj Kumar @ Vicky with dandas on which the witness stated that he cannot identify the said boys as those who were hitting Manoj Kumar @ Vicky with dandas at the time of the incident. He has denied the suggestion that he had told the police that Mohan Singh @ Bunty (accused present in the court and pointed out to the witness) had picked up a gamla/flower pot kept in the gali and threw the same on the head of Manoj Kumar @ Vicky. He has also denied the suggestion that he also told the police that the friends of Manoj in the meanwhile called the police or that all the three boys i.e. Sanjay, Bhagwan Sahai and Mohan Singh then put Manoj Kumar who was almost half dead (adhmara) in a rickshaw and took him and announcing that he had broken their gold chain and they were taking him to Police Station. Witness has denied the suggestion that he had also told the police that all these boys were addressing each other by names and he informed the police of the said names when they came for investigations or that he can identify these boys if shown to him. When confronted with his statement U/s 161 Cr. P.C. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 92 which is Ex.PW27/PX1 all these facts were found so specifically mentioned. He has denied the suggestion that he is known to the accused Sanjay, Bhagwan Sahai and accused Mohan Singh who were regular visitors to his shop and that is why he was protecting them. Witness has denied the suggestion that he was deliberately not identifying the accused Sanjay Dhankad, Bhagwan Sahai and accused Mohan Singh being won over by them and their families and it is for this reason that he did not appear before this court despite service of summons on 22.11.2013. Witness has denied the suggestion that he was deliberately deposing falsely under the oath despite being under an obligation to speak the truth.
(59) This witness was not cross examined by Ld. Defence counsel, despite opportunity given.
Witnesses of Medical Record:
(60) PW1 Dr. Neeraj Mishra from BJRM Hospital has deposed that on 10.12.2010, one patient Vicky S/o. Sh. Ganesh was referred by the CMO to Ortho SR and Surgery SR where he (witness) examined the patient.
According to the witness, the patient was having swelling on both forearm, both hands and left leg, as a result X Ray of both forearms, both hands, bilateral foot and left leg was conducted and after going through the X Ray and physical examination of the patient, as per the report given by Radiologist Dr. Shipra Rampal, it was observed that the patient had fracture of bilateral ulna (both forearms) and fracture middle phalanx St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 93 right little finger from Orthopedics. He has proved that in his opinion nature of injury was Grievous from Ortho side and the patient was referred to SR Surgery for giving the final opinion. The witness has also proved his opinion dated 16.12.2010 on the MLC Ex.PW1/A at point A signed by him at point B and his detailed examination finding is on the back of MLC and signed by him at point C. (61) In his crossexamination by the Ld. Defence Counsels the witness has admitted that date was not mentioned under his signature at point C on Ex.PW1/A, but finding was given on the same date, when the patient was referred to him i.e. 10.12.2010. According to the witness, on that date, he was on 24 hours duty. He does not remember the exact time, when he gave the opinion from Ortho side. He has explained that he generally gives his opinion within 1015 minutes of the arrival of the patient, which in the present case was 5:10 PM. He has testified that the patient was present before him, when he made his report and he physically examined the patient. The witness has further deposed that the X Ray plates were prepared after the clinical examination. He has admitted that the X Ray plates were before him when he gave his gave his report on 16.12.2010 but the patient was not before him on 16.12.2010, as the patient was already referred to Surgery SR, BJRM Hospital. According to him, the history of assault was given to him by the injured on his asking and he also noted the history in his detailed report. He has testified that he did not examine St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 94 the head to ascertain if there was any head injury as he referred the patient to SR Surgery for ruling out head, chest and abdominal injury. The witness has admitted that he referred the patient to SR Surgery and Dental, but he had not mentioned in his report that this reference was to rule out any injury in head, chest and abdominal area. He has admitted that the opinion given by him on 16.12.2010 about nature of injuries was not a final opinion, as he had mentioned that final opinion has to be given by SR Surgery. He has testified that SR Surgery has not given his opinion before he gave his opinion about the nature of injuries. The witness has also deposed that on 16.12.2010, the patient was not in the hospital and he gave the opinion on the basis of the data available on record and the X Ray Plates. (62) A specific question was put to the witness that as per the MLC and the report, till 16.12.2010, there was no head injury on the patient, to which the witness has stated that it was SR Surgery who is supposed to answer the same. It has been specifically put to the witness that even as per SR Ortho report and opinion, there was no head injury on the patient Manoj Kumar @ Vicky till 16.12.2010, to which the witness replied that he had referred the patient to Surgery SR on the same day after examining the patient and hence Surgery SR is required to answer this question. (63) He has denied the suggestion that he had manipulated his opinion dated 16.12.2010 to the extent that the nature of injury is grievous from Ortho side and final opinion to be given by SR Surgery. He has also denied the suggestion he is deposing falsely and has voluntarily added that St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 95 he had examined the whole body of patient and it not that he did not examine the head.
(64) A specific Court Question was put to the witness that whether when he examined the whole body of the patient, he found any injury on the head of the patient and if yes, whether he mentioned this in the MLC. After going through the MLC, the witness responded that as per record, abrasions and bruises were present on the forehead, due to which reason he referred the patient to Surgery SR to rule out head injury. Further, when asked if he had seen the X Ray plates of skull bones before giving his opinion on 16.12.2010, the witness denied the same .
(65) He has admitted that the patient had already been referred to SR Surgery and SR Ortho by the CMO, even before he examined the patient. He has also denied that he and Surgery SR simultaneously examined the patient. He does not recollect whether SR Surgery had already examined the patient before he started examining him on 10.12.2010. (66) PW13 Dr. Satyendra Kumar CMO Sushruta Trauma Center has deposed that on 18.12.2010 Dr. Kavita Tripathi had prepared the Death Report in respect of deceased Vicky S/o Ganesh, aged 18 years, R/o 157, Mukundpur, Delhi vide Ex.PW13/A bearing signatures of Dr. Kavita at point A and according to the death certificate the cause of death was severe head injury with diffuse axonal injury with ARDS which observations are mentioned at encircled portion X. Witness has further deposed that Dr. Kavita also prepared the death summary in respect of the above deceased St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 96 which is Ex.PW13/B bearing her signatures at point A which he identified. (67) In his cross examination by Ld. Defence counsels, witness has admitted that he did not examine the deceased personally and he was deposing only on the basis of official record.
(68) PW16 Dr. V.K. Jha has deposed that on 19.12.2010 he conducted the postmortem on the dead body of Manoj Kumar @ Vicky, 18 years, male son of Ganesh and the dead body was sent by Inspector Rajesh Dahiya of Police Station Mukherjee Nagar and was identified by Ct. Sanjay. According to the witness, on General Examination, the body was wrapped in hospital cloth, built of the body was moderate, rigormortis was present on all body parts, postmortem staining was present at back. Eyes were close, conjuctivae was congested, cornea was hazy, mouth was partially open. He has further deposed that he observed following external injuries on the dead body of the deceased:
1. Multiple healed abrasions on front of left leg, right leg, right medial malleolus, left arm and face, right face and right arm.
2. Fracture deformity upper end left forearm.
3. Fracture deformity proximal phalanges of ring finger right hand.
4. Healed bruise on upper lip.
(69) According the witness on internal examination there was subscalp hemotoma on frontal region, fracture left frontal bone and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 97 fracture anterior cranial fossae and in stomach yellowish fluid was present. He has also deposed that after postmortem examination he opined the cause of death as shock and craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force diverted upon head by other party, all injuries were antemortem in nature and time since death was consistent with hospital time of death i.e. 10:30 PM on 18.12.2010. Witness has further deposed that he preserved the blood gauze piece sealed with sample seal of mortuary and his detailed PM report in this regard Ex.PW16/A. (70) In his cross examination by Ld. Defence counsel, witness has deposed that he cannot give any definite opinion with regard to the age of the head injury i.e. subscalp hemotoma on frontal region, fracture left frontal bone and fracture anterior cranial fossae and has voluntarily added that apart from the aforesaid injury there were multiple injuries on the body. According to the witness, in so far as the external injuries are concerned they are about 7 to 8 days old. He has admitted that the deceased Manoj Kumar @ Vicky had died during treatment. He is unable to tell from the postmortem report whether deceased had undergone any surgery in respect of the alleged head injuries. He has denied the suggestion that the opinion given by him is wrong to the effect that even the two fractures one on the left forearm and the other on the ring finger of the deceased could also be the cause of death of the deceased. Witness has also denied the suggestion that he has given a false opinion at the instance of the family of the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 98 deceased.
(71) PW17 Dr. R. S. Mishra BJRM Hospital has deposed that on 10.12.2010 at about 5:10 PM the patient Manoj Kumar @ Vicky S/o Ganesh was brought to the hospital by Commander 12 Ct. Paro (No. 1774 PCR) with alleged history of physical assault and the patient was examined by Dr. Manish Sachan, JR (Casualty) vide MLC Ex.PW1/A bearing his observations at encircled 'X' bearing the signatures of Dr. Manish Sachan at Point D which he identified. According to him, the MLC Ex.PW1/A bear the name of Dr. K. K. Meena the then CMO at Point E which he identify and the observations made by Dr. Ashish (JR Surgery) are encircled 'X' bearing his signatures at point F which he identified. He has further deposed that on 10.12.2010 at around 10:40 PM the patient Chintu @ Bhagwan Sahai S/o Narayan Singh was brought to the hospital by Commander 12 HC Paro (No. 1774 PCR) with alleged history of physical assault and the patient was medically examined by Dr. Manish Sachan vide MLC No. 18767 Ex.PW17/A under supervision of Dr. K. K. Meena CMO bearing the signatures of Dr. Manish Sachan at point A and name of Dr. KK Meena at point B which he identified. Witness has further identified the opinion given by Dr. Manish Sachan on 14.12.2010 is encircled at point B. (72) In his cross examination by Ld. Defence counsel, witness has admitted that he did not personally examine the patient Manoj and has voluntarily explained that he was deposing on the basis of the official St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 99 records. According to him both the doctors i.e. Dr. Ashish and Dr. K.K. Meena had left their whereabouts and correct addresses at the time of leaving the BJRM hospital. He has also deposed that he had worked with Dr. Ashish for about 1 1 ½ years and he had worked with Dr. K.K. Meena for about six months. Witness has admitted that as per the MLC Ex.PW1/A the patient was conscious, oriented and fit for giving a statement from the time of admission upto 6:30 PM. Witness has also deposed that the observations of the concerned doctor in respect of investigations from the patient are not on the MLC but on the case sheet. Witness has admitted that on Ex.PW1/A dated 13.01.2011 and the other is 16.12.2010 on which dates two different doctors have noted down their observations. Witness has admitted that nowhere on Ex.PW1/A it is suggestive that the patient became unconscious on 10.12.2010.
Police/ Official witnesses:
(73) PW2 HC Arvind Kumar has deposed that on 10.12.2010 he was posted in the Police Station Mukherjee Nagar and was working as Duty Officer from 5.00 PM to 1.00 AM (next day). According to him, on that day at about 08.05 PM, Ct. Parmod brought a rukka sent by SI Inderpal Singh and handed over the same to him on the basis of which he got recorded the FIR No. 440/2010 u/s 325/34 IPC on computer through computer operator.
The witness has deposed that after registration of the case, he handed over the copy of FIR and rukka to Ct. Parmod for handing over the same to SI St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 100 Inderpal Singh for further investigation. He has proved the computer generated copy of FIR which is Ex.PW2/A and recorded DD No. 29A regarding registration of FIR. He has also proved his endorsement on the rukka which is Ex.PW2/B. (74) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the Investigating Officer of the case did not inform him telephonically that rukka was being sent to him through Ct. Parmod and it was Ct. Parmod who brought the rukka to him alone and till the registration of the FIR, Ct. Parmod was the only person, who came from the spot or hospital. He has testified that BJRM Hospital is at a distance of 3½ or 4 km from Police Station Mukherjee Nagar. He has denied the suggestion that that FIR was antetimed.
(75) PW3 W/HC Ranjna has deposed that on 10.12.2010, he was posted at Police Station Mukherjee Nagar and was working as Duty Officer from 9.00 AM to 5.00 PM. According to the witness on that day, at around 3.34 PM, information was received from Control Room, NorthWest about a quarrel at Hudson Lane Complex, DDA Market, NDPL Office on which she recorded DD No.25A which is Ex.PW3/A and informed SI Inderpal Singh about this information on telephone. She has further deposed that on the same day, at about 3.55 PM, an information was received from Control Room, NorthWest on telephone that at Police Station Mukherjee Nagar, a snatcher has been beaten by the public mercilessly and that he was bleeding, pursuant to which she recorded DD no. 26A which is Ex.PW3/B and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 101 informed SI Inderpal Singh of the same.
(76) In her crossexamination by the Ld. Defence counsels the witness has deposed that SI Inderpal was not present in the Police Station when the information was received and that is why, he was informed on telephone. According to the witness she was not aware where SI Inderpal was, when she informed him about DD no. 25A and DD no. 26A. She has testified that she did not meet SI Inderpal on 10.12.2010, during her duty from 9.00 AM to 5.00 PM. The witness has also deposed that she informed SI Inderpal on his mobile number, but she did not mention the mobile number in the DD. She does not remember the mobile number of SI Inderpal. According to her, there is no departure or arrival entry of SI Inderpal, till she was working as Duty Officer on that day. (77) It has been observed by the Court that according to the DD register, SI Inderpal along with Ct Parmod left the PS at 8.15 AM vide DD no. 12A and returned to the Police Station at 10.35 PM vide DD no. 32A, both dated 10.12.2010. Photocopies of both these DDs have been taken on record as Ex.PW3/D1 and Ex.PW3/D2.
(78) PW8 SI Prem Singh has brought the attested copy of the PCR Forms from the record of PCR office which are Ex.PW8/A, Ex.PW8/B, Ex.PW8/C and Ex.PW8/D. (79) In his crossexamination by the Ld. Defence counsel, witness has admitted that PCR Call related to Ex.PW8/A, Ex.PW8/B and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 102 Ex.PW8/C as per PCR Forms are untraced. He has admitted that the caller of PCR call Ex.PW8/D made the call from the land line number i.e. 01127231132 as per PCR Form and that whatever information furnished to the control room were recorded through computer in PCR Form. (80) PW9 WHC Parwati is a formal witness being the PCR Van Incharge who has been examined by way of affidavit which is Ex.PW9/1 (as per the provisions of Section 296 Cr.P.C.) wherein she has proved that on 10.12.2010 at around 3:50 PM she received an information that a snatcher who had been badly beaten by public persons was present near main gate of Police Station Mukherjee Nagar and was bleeding heavily on which at about 3:37 PM she along with staff reached at the main gate of Police Station Mukherjee Nagar where a boy namely Vicky was found in injured condition. She has further stated that another boy namely Chintu was found present who informed them that Vicky had snatched his gold chain and public had caught and beaten him while Vicky stated that they were having previous enmity due to which reason Chintu and his other friends had beaten him. The witness has further stated that both the them were taken to BJRM Hospital and in the meanwhile SI Inderpal met them. She has explained that on the way to BJRM Hospital she also informed Police Control Room about the facts of the incident.
(81) In her cross examination by Ld. Defence counsel, witness has deposed that she recorded the information in a register which they used to keep in their PCR vehicle but she has not brought the register in which she St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 103 made the entries in respect of the incident. According to her, she has not recorded the statement of victim and Chintu after reaching to the place of the incident in Delhi i.e. main gate Police Station Mukherjee Nagar. Witness has further deposed that she has not recorded any statement of any public person after reaching at the spot and about 3035 persons were present at the spot nor any police official had recorded any statement in her presence. According to the witness she stayed about 1520 minutes at the spot and she reached at BJRM Hospital at about 4:45 PM accompanied her PCR staff including driver and one constable only. She has also deposed that she handed over the injured to the duty constable at BJRM Hospital. She has admitted that no statement was recorded in her presence. (82) PW10 SI Tarun Kumar is a formal witness who has been examined by way of affidavit which is Ex.PW10/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 19.12.2010 he accompanied the Investigating Officer Inspector Rajesh Dahiya and reached Mortuary BJRM Hospital where the dead body of the deceased was identified by his elder brother Ajay Kumar and brother in law/ Jija Rajesh Patel after which the postmortem examination on the dead body was got conducted and the Autopsy Surgeon handed over to him the exhibits of the deceased which he handed over to the Investigating Officer who seized the same vide Ex.PW10/A. (83) In his cross examination by Ld. Defence counsel, witness has deposed that the seizure memo was prepared at BJRM Hospital. He has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 104 denied the suggestion that the seizure memo was prepared by the Investigating officer while sitting in the police station and he only signed the same at the instance of the senior officers.
(84) PW11 Inspector Mahesh Kumar is a formal witness being the Draftsman who has been examined by way of affidavit which is Ex.PW11/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 12.1.2011 he visited the scene of crime where at the instance of SI Inderpal he took rough measurements on the basis of which he prepared the scaled site plan which is Ex.PW11/A. (85) In his cross examination by Ld. Defence counsels, witness has denied the suggestion that he did not go to the site to prepare the plan or that the scaled site plan is not correct as per the site. Witness has admitted that he had prepared scaled site plan while sitting in the office and has voluntarily added that he had taken the rough notes at the site. According to him he did not hand over the rough notes to the Investigating Officer and has voluntarily added that he had destroyed the same after preparing the scaled site plan.
(86) PW12 SI Ranbir Singh is a formal witness who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 19.12.2010 he accompanied the Investigating Officer Inspector Rajesh Dahiya and reached Mortuary BJRM Hospital where the dead body of the deceased was identified by his elder brother Ajay Kumar and Jija Rajesh Patel after which St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 105 the postmortem examination on the dead body was got conducted and the Autopsy Surgeon handed over the exhibits of the deceased to SI Tarun Kumar who handed over the same to the Investigating Officer who seized the same vide Ex.PW10/A. He has further proved that on 21.12.2010 he again joined the investigations with SI Inderpal and Inspector Rajesh Dahiya and at about 7:00 PM when they reached near Nank Piao Gurudwara they saw Sanjay and Bhagwan Sahai standing near bus stand DTC Colony. According to the witness, he apprehended the accused Bhagwan Sahai and SI Inderpal apprehended Sanjay. He has proved that the accused Bhagwan Sahai was arrested vide memo Ex.PW12/A, his personal search was conducted vide memo Ex.PW12/B, the accused Sanjay Dhankar @ Nakli was arrested vide Ex.PW12/C and his personal search was conducted vide memo Ex.PW12/D. According to him, both the accused were got medically examined at BJRM Hospital after which they were lodged in lockup. (87) In his cross examination by Ld. Defence counsels, witness has deposed that the seizure memo was prepared at BJRM Hospital. Witness has denied the suggestion that the seizure memo was prepared by the Investigating officer while sitting in the police station and he only signed the same at the instance of the senior officers. According to the witness he did not make a separate departure entry when he left the Police Station along with SI Inder Pal and Insp. Rajesh Dahiya. He has testified that they left in private vehicle of Insp. Rajesh Dahiya. Witness has further deposed that they reached Rajpura at about 1 AM and they remained at Rajpura for St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 106 about twothree hours. According to the witness at Rajpura they went to the house of Sanjay Dhankar and in jhuggie cluster. Witness has testified that no other police officers from the local police of Police Station Kamla Nagar, Roop Nagar etc. were joined nor in his presence Investigating officer made any inquiries from anybody and has voluntarily added that they did not meet any police officials during this period. Witness has further deposed that they had no prior information that Sanjay and Bhagwan Sahai would be coming at Nanak Piyau Gurudwara at 3:00 PM and at that time they were in civil clothes. The witness has also deposed that he was knowing both the accused Sanjay and Bhagwan Sahai previously and has voluntarily added that he and SI Inder Pal used to share their office in the same room and both the accused were involved in another criminal case U/s 325 IPC investigated by SI Inder Pal during which investigations he became aware of their identity. Witness has denied the suggestion that Bhagwan Sahai @ Chintu was not arrested near bus stand DTC colony. According to the witness, Investigating Officer asked fourfive public persons to join the investigations but none agreed and he cannot tell the names and details of said public persons who had refused and in his presence no legal action was initiated by the Investigating Officer against the said persons. Witness has denied the suggestion that the accused Sanjay and Bhagwan Sahai have not been apprehended and arrested in the manner as disclosed by him or that all the documentations regarding the apprehension and arrest of Sanjay and Bhagwan Sahai was done while sitting in the Police Station and he merely St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 107 signed the same on the asking of the Investigating Officer. Witness has further denied the suggestion that the accused Sanjay and Bhagwan Sahai did not make any disclosure statement or that the Investigating Officer recorded the same of his own or that he merely signed the same at the instance of senior officers.
(88) PW22 Ct. Pramod Kumar has deposed that on 10.12.2010 he was posted as Constable at Police Station Mukherjee Nagar and was on Emergency Duty from 8:00 AM to 8:00 PM and on that day he had joined the investigation of the present case along with SI Inder Pal Singh. According to the witness, at around 3.30 PM DD No. 25 A was received by SI Inder Pal Singh which was regarding jhagda/quarrel on which they reached DDA market Hudson Lines, Kingsway Camp, Delhi where they found some public persons who informed that the PCR had come and shifted the injured to BJRM Hospital, Jahangir Puri. Witness has further deposed that at around 3.55 PM SI Inder Pal received the call from Duty Officer vide DD No. 26 A and information was received that public persons had caught hold of snatcher and was beaten and was bleeding and he had been shifted by PCR to BJRM Hospital. He has testified that thereafter they reached BJRM Hospital where they met the victim Manoj Kumar and inquiry was made from him by SI Inder Pal Singh and his MLC was collected. Witness has also deposed that Manoj Kumar at that time was admitted in the hospital and was undergoing treatment and SI Inder Pal recorded the statement of Manoj Kumar and made his endorsement over the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 108 same and converted it into the tehrir. The witness has proved the said statement which is Ex.PW22/A bearing the thumb impression of Manoj @ Vicky at point A which thumb impressions he had put in his presence as he was not in a position to sign having plaster on both his hands and the signatures of SI Inder Pal at point B. According to him thereafter, SI Inder Pal made his endorsement vide Ex.PW22/B and they came to know that the snatcher who had been apprehended by the public persons had been admitted in the same hospital. He has also deposed that Investigating Officer SI Inder Pal recorded the statement of the said person namely Bhagwan Sahai @ Chintu who was also inquired into and he revealed that he was the person who had beaten Manoj. Witness has further deposed that thereafter on the directions of SI Inder Pal he took the tehrir to Police Station where FIR was got registered and after the registration of the FIR, he returned to BJRM Hospital where he handed over the original tehrir and copy of FIR to SI Inder Pal who then interrogated Bhagwan Sahai at length and arrested vide memo Ex.PW5/B and the personal search of Bhagwan Sahai vide memo Ex.PW5/C and the disclosure statement of Bhagwan Sahai was also recorded vide Ex.PW22/C. Witness has further deposed that thereafter, the accused Bhagwan Sahai led them to the house of Sanjay at Rajpur Gur Mandi and then to the house of Mohan Singh situated at DTC Colony, Rana Pratap Bagh as he claimed that both Sanjay and Mohan Singh were with him at the time of incident but both Sanjay and Mohan Singh St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 109 could not be found at their houses. Witness has further deposed that Bhagwan Sahai then led them to the spot of the incident at Hudson Lines, Kingsway Camp near the DDA Market and pointed out the place of incident where the Investigating officer prepared the site plan Ex.PW5/A and they then returned to the Police Station vide DD No. 32A where his statement was recorded and he was relieved. He has correctly identified the accused Bhagwan Sahai in the Court.
(89) In his cross examination by the Ld. Defence Counsels the witness has deposed that they had reached the spot of the incident from the Police Station on the personal bike of SI Inder Pal at around 10:45 AM and there were around 1015 public persons present at the spot there and they noticed a few broken flower pots at the spot and spots of blood. According to him SI Inder Pal had removed the public persons from the said place and in order to preserve the same also called the Beat Constable whose details he is unable to tell. Witness has denied the suggestion that no beat constable was left to preserve the scene of crime and for this reason this fact does not find mention in his statement u/s 161 Cr. P. C which is Ex.PW22/DX1. Witness has further deposed that Investigating Officer had tried to locate for the eye witness but could not find anyone. He has admitted that the scene of the incident is a thickly populated area with shops and houses around. According to him the Investigating Officer had interrogated a few shopkeepers and persons present at the spot to find out if anybody had seen the incident but the shopkeepers refused to divulge anything. He has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 110 testified that the Investigating Officer did not serve any notice to any shopkeeper for refusal to assist in the investigations and for concealing the crime. He has further deposed that they hardly remained there for about fiveseven minutes and then they went to BJRM Hospital. Witness has further deposed that when they reached the BJRM Hospital apart from the PCR officials and the injured victim and accused, there were no other public persons and has voluntarily added that the public persons came after about 1015 minutes and Manish and Kapil Dagar had come after about 1015 minutes. Witness has further deposed that the statement of Manoj had not been recorded till such time Manish and Kapil Dagar had arrived. He has also deposed that after Manish and Kapil Dagar reached the hospital, it was after 1015 minutes that the statement of Manoj was recorded. Witness has admitted that before the statement of Manoj was recorded Manish and Kapil Dagar had already met him. Witness has further deposed that before recording the statement of Manoj, SI Inder Pal obtained fitness from the doctor. He has also testified that when the statement of Manoj was being recorded by SI Inderpal, both Manish and Kapil Dagar were also there and has voluntarily added that they were outside the room where the statement was recorded. Witness has denied the suggestion that the statement of Manoj was recorded on the prompting of Manish and Kapil who were present in the same room because he was not in a fit statement to make a statement. He has also denied the suggestion that no statement was made by Manoj @Vicky in his presence vide Ex.PW22/A or that the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 111 statement Ex.PW22/A has been fabricated at a later stage and in order to lend authenticity to the same the thumb impressions of Manoj @ Vicky were taken when his condition had deteriorated.
(90) He has further deposed that after getting the FIR registered he returned to the BJRM Hospital at around 9:10 AM and Bhagwan Sahai was arrested at around 9:30 AM and his disclosure was recorded later in the hospital itself. Witness has admitted that the disclosure statement of Bhagwan Sahai does not bear his signatures. He has denied the suggestion that no disclosure of Bhagwan Sahai was recorded in his presence and for this reason the disclosure Ex.PW22/C does not bear his signatures. Witness has denied the suggestion that SI Inder Pal had recorded the disclosure of Bhagwan Sahai of his own on the prompting and tutoring and in connivance with Manish and Kapil Dagar and that is why it does not bear his signatures. He has also denied the suggestion that the accused Bhagwan Sahai did not point out any place of incident or that for this reason the site plan Ex.PW5/A does not bear his signatures or that all documents relating to arrest, personal search, site plan were prepared by the Investigating officer SI Inder Pal while sitting in the Police Station in connivance with Manish and Kapil or that he merely signed all these documents on the directions of senior officers to make out this case.
(91) PW23 Ct. Sanjay has deposed that on 11.12.2010, he was posted at Police Station Mukherjee Nagar and on that day, he along with SI Ranvir Singh and ASI Somvir had joined the investigation and he along St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 112 with SI Inder Pal at about 10:15 AM proceeded for investigation of the present case. He has deposed that at about 10:30 AM, they reached DDA Market, Hudson Lane, Kingsway Camp, Delhi where they interrogated public persons namely Rajender Singh, S/o Sangaram Singh shopkeeper in the area; B.S. Mehta S/o Sh. G. Gosai shopkeeper in the area; Raju Mathur S/o Sh. Munna Lal, dhobi/presswala of the area and the statements of these persons were recorded as they claimed to be eye witnesses of the incident dated 10.12.2010. According to the witness, while they were still at the spot at the DDA Market investigating the case, SI Inder Pal made a call to Kapil Dagar and called him to the market on which Kapil Dagar came to the spot and informed SI Inder Pal that the accused Sanjay @ Nakli wanted in the present case was present at his residence. He has testified that on receipt of this information, he along with SI Inderpal, SI Ranvir, PSI Sombir and Kapil Dagar went to H.No. 94, Rajpura, Gurmandi, Delhi which is the house of accused Sanjay. According to the witness, accused Sanjay @ Nakli was found present at his house and was pointed out by Kapil Dagar on which SI Inderpal interrogated Sanjay and on his disclosure of his involvement in the present case accused Sanjay was arrested vide memo Ex.PW23/A, his personal search was conducted vide memo Ex.PW23/B and his disclosure statement was recorded vide Ex.PW6/A. Witness has further deposed that since the offences invoked at that time were bailable, the accused Sanjay was admitted to police bail as he was in a position to furnish the surety vide Ex.PW23/C. According to the witness thereafter, at St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 113 around 1:30 PM during the day they went to H.No. 146, DTC Colony, Rana Pratap Bagh for search of accused Mohan Singh where his father Sh. Narender Kumar met who informed that Mohan Singh had not returned home. He has also deposed that thereafter, at around 2 PM statement of Kapil Dagar was recorded and he was relieved and they then reached BBM Depot at around 2:30 PM where the statement of WHC Parvati, PCR was recorded after which she was relieved and thereafter, they returned to the Police Station and his statement was recorded after which he was relieved. (92) During his cross examination by Ld. Defence Counsels witness has denied the suggestion that they had not gone to the residence of the accused persons to arrest them or that all the investigation narrated by him in the chief took place only at the Police Station. Witness has further denied the suggestion that Investigating Officer had obtained his signatures much later after preparing all the statements, disclosures etc. or that he did not accompany the Investigating Officer in the investigation of this case. Witness has admitted that accused Sanjay was released on police bail in the same day after his formal arrest. He is not aware if the concerned Investigating Officer had recorded the statement of Kapil Dagar, Rajender Singh, B.S. Mehta, Raju Mathur before the arrest of accused Sanjay Dhankar.
(93) PW24 Insp. Rajesh Dahiya has deposed that on 19.12.2010 he was posted as Inspector Investigation in Police Station Mukherjee Nagar, Delhi and on that day at about 10.00AM the investigation of this case was St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 114 handed over to him and he discussed the case with previous Investigating Officer SI Inderpal Singh and SHO Inspector Sh. Satender Singh Yadav. According to him, thereafter he alongwith SI Tarun Kumar and SI Ranbir Singh departed for BJRM Hospital, Delhi for postmortem examination of deceased Manoj Kumar @ Vicky vide DD No. 19B at 10.05AM and after reaching BJRM Hospital he found Ajay Kumar Singh (elder brother of deceased), Rajesh Patel (Jija of deceased) alongwith many other persons present near mortuary of BJRM Hospital, Delhi. Witness has further deposed that he had shown the dead body of deceased Manoj Kumar @ Vicky to Ajay Kumar Singh and Rajesh Patel who identified the dead body of Manoj @ Vicky and he recorded statement regarding identification of dead body and thereafter prepared the inquest paper for conducting the postmortem on the body of Manoj. He has proved having prepared the brief facts which are Ex.PW24/A; having filled Form 25.35(1)(B) which is Ex.PW24/B and thereafter he made request for postmortem on the body of deceased Manoj vide his request Ex.PW24/C. According to him the body was tendered for postmortem and after the postmortem the body was handed over to the relatives of the deceased and he executed the receipt of handing over the dead body to the relatives of the deceased and thereafter he recorded statement of Ajay Kumar Singh and Rajesh Patel. He has also deposed that after the postmortem doctor handed over a sealed parcel containing blood in gauze of deceased in a sealed pullanda alongwith sample seal on 19.12.2012 which he seized vide memo Ex.PW10/A and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 115 thereafter he returned to the police station and deposited the case property in the Malkhana. He has testified that on 21.12.2010 he again proceeded for the further investigation of this case alongwith SI Inder Pal and SI Ranbir Singh and were in the search of accused persons involved in the present case and at about 7.30PM when they reached near DTC Colony Bus stand near Gurudwara Nanak Pyao accused Sanjay and Bhagwan Sahai were apprehended at the instance of SI Inderpal who was already aware of their identity. According to the witness both accused were arrested vide memos Ex.PW12/C and Ex.PW12/A, their personal search was carried out vide memos Ex.PW12/B and Ex.PW12/D. Witness has further deposed that thereafter both the accused were got medically examined from BJRM Hospital and then they returned to the Police Station where accused persons were put in the lock up and he recorded the statement of various witness and relieved them. Witness has further deposed that on the next day the accused persons were produced before the Ld. Illaqa Magistrate and were sent to Judicial Custody and on the same day i.e. 22.12.2010 he recorded statement of Ajay at Gur Mandi. According to the witness, on 05.01.2011 he along with ACP Model Town went to the spot of incident and where the statements of Dev Raj and Rajiv Saini were recorded. He has testified that on 12.01.2011 the official draftsman was called and he got prepared the scaled site plan. He has also deposed that on 17.03.2011 Non Bailable Warrants of accused Mohan Singh @ Bunty were obtained from the Ld. Illaqa Magistrate but the same could not executed as he was evading arrest St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 116 and on 19.03.2011 he prepared the charge sheet and filed the same in the Court.
(94) He has also deposed that on 06.04.2011 accused Mohan Singh surrendered before the Ld. Illaqa Magistrate and he formally arrested him with the permission of Ld. Magistrate vide Ex.PW24/D, his personal search was conducted vide memo Ex.PW24/E and his disclosure statement was also recorded vide Ex.PW24/F. Witness has further deposed that thereafter accused was produced before the court concerned and two days' police custody remand was obtained but nothing could be recovered at the instance of accused Mohan Singh and he recorded the statement of various witnesses. According to him meanwhile he was transferred and the supplementary charge sheet was prepared by some other Investigating officer i.e. Inspector Subhash Chand.
(95) In his cross examination by Ld. Defence Counsels, witness has deposed that although he was Inspector Investigation but he was not aware about the progress/ investigation of present case prior to 19.12.2010 and has voluntarily explained that he was on casual leave. He does not remember for how much days he was on leave prior to 19.12.2010. According to the witness, he separately did not take any list of witness or the list of the events of the progress of the investigation form the previous Investigating Officer and has voluntarily explained that the facts of the same was on the record. He has testified that he separately did not take the summary of the investigation. Witness has further deposed that before the investigation of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 117 the case he went through the case diaries. He does not recollect the name of the public persons whose statements have already been recorded by the previous Investigating Officer. According to the witness he had maintained the case diaries under his supervision and signatures and he had mentioned in his case diaries about the initial investigation of this case when he took over the investigation. He has further deposed that as per the record the case was registered on 10.12.2010 on the statement of injured Manoj Kumar only. He has admitted that accused Sanjay Dhankar and Bhagwan Sahai were arrested Under Section 325 IPC and they were released on police bail initially. Witness has further deposed that prior to converting the offence 302 IPC the charges U/s 308 IPC were added in the FIR. He does not recollect the date when the provisions of section 308 IPC were added. Witness has admitted that SI Inderpal was the Investigating Officer of this case till 19.12.2010. According to him, during his investigations of the present case he did not call any of the witnesses whose statements were recorded by SI Inder Pal and has voluntarily added that only the interaction was made with those persons during the course of investigations. He is not aware if this case was highlighted in Press and Media and he was not interviewed by the Press/ Media in this case. He is not aware if SI Inderpal, SHO, ACP or DCP of the area were interviewed by the Press/Media in this case. He is also not aware if on 18.12.2010 crowd of 100150 persons raised hue and cry in front of the Trauma Center after death of Manoj @ Vicky and he also not aware whether press/media covered the incident of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 118 18.12.2010 at the Trauma Center. Witness has further deposed that Dev Raj and Rajiv Saini themselves volunteered and gave their statement regarding the incident while he was conduction investigations at the spot. He has also deposed that Dev Raj and Rajiv Saini were present at the spot co incidentally when he was conducting investigation as they had come to take tea etc. According to the witness, both of these witnesses were present in the market complex on the day when he was conducting the investigations on 05.01.2011 at the spot. He has testified that there are many shops / stalls selling eatables, snacks and tea etc. in the said market complex. Witness has also deposed that he personally did not record the statement of the shopkeepers and other eye witnesses and has voluntarily added that the statements had already been recorded by the first Investigating Officer and he did not feel the necessity to record the same again. He has denied the suggestion that the entire incident was twisted by the Investigating Agency at the instance of the family of the deceased or that accused Sanjay Dhankar himself surrendered in the Police Station after giving telegrams to the SHO concerned of the area and the higher authorities. Witness has also denied the suggestion that the statements of the public witnesses were manipulated at a later stage by SI Inder Pal after the death of Manoj @ Vicky, under public/ media pressure or that he introduced Dev Raj and Rajiv Saini in this fact at the instance of the family members of the deceased. Witness has further denied the suggestion that he had not conducted the investigating of this case fairly and independently or that the case diaries of the present case St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 119 have been manipulated by SI Inderpal at his instance. Witness has further deposed that he is not aware if the deceased Manoj @ Vicky was involved in any other criminal cases nor is he aware of FIR No. 278/10 Police Station Kingsway Camp / Model Town dated 05.08.2010 U/s 323/341/34 IPC at the instance of complainant Manoj @ Vicky. Witness has denied the suggestion that he was deposing falsely.
(96) PW25 Insp. Subhash Chand has deposed that in the month of May 2011 investigation of this case was handed over to him and after completion of investigation he had filed supplementary charge sheet against accused Mohan Singh @ Bunty in this case. This witness was not cross examined by Ld. Defence counsel, despite being granted an opportunity in this regard.
(97) PW26 SI Inderpal Singh is the initial Investigating Officer of the present case. He has deposed that on 10.12.2010 he was posted at Police Station Mukherjee Nagar and was on emergency duty from 8AM to 8PM and on that day at about 3:00 PM he received an information through a phone call from duty officer regarding quarrel at DD market vide DD No. 25 A on which he along with Ct. Parmod reached at the spot i.e. at DDA market Hudson Lines, Kingsway Camp, Delhi. According to him there they do not found any eye witness and came to know from some public persons that the injured had been shifted to the Hospital. Witness has further deposed that at about 3:55 PM he was informed vide DD No. 26 A from Duty Officer who informed that public persons had caught hold of snatcher St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 120 and was beaten and was bleeding and he had been shifted by PCR to BJRM Hospital on which he along with Ct. Parmod reached at BJRM Hospital where they met the victim Manoj Kumar and inquiry was made from him by him and his MLC was collected. Witness has further deposed that Manoj Kumar at that time was admitted in the hospital and was undergoing treatment and he obtained the opinion from doctor concerned regarding fitness of the victim at about 6:30 PM. He has testified that thereafter he recorded the statement of Manoj Kumar and made his endorsement over the same and converted it into the tehrir and the said statement is Ex.PW22/A bearing the thumb impression of Manoj @ Vicky at point A which thumb impressions he had put in his presence as he was not in a position to sign having plaster on both his hands and bearing his signatures at point B. Witness has further deposed that thereafter, he made his endorsement vide Ex.PW22/B and he send Ct. Parmod along with the rukka to the police station with the directions for getting the case registered and in the meanwhile he recorded the statement of Kapil Daggar, Anis Raj and Chandan. Witness has further deposed that he came to know that one of the boy namely Bhagwan Sahai @ Chintu who has assaulted Manoj @ Vicky was also present in the hospital who was pointed out by Anis Raj, Kapil Daggar and Chandan and he formally inquired from Bhagwan Sahai @ Chintu after obtaining the permission from the doctor. According to the witness at about 9:10 PM Ct. Parmod returned back from the police station after getting the case registered i.e. FIR No. 440/10, U/s 325/34 IPC and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 121 handed over to him the copy of the FIR and original rukka which FIR is Ex.PW2/A. Witness has further deposed that he then recorded the disclosure statement of Bhagwan Sahai @ Chintu which is Ex.PW22/C and then arrested him vide memo Ex.PW5/B and conducted his personal search vide memo Ex.PW5/C. Witness has further deposed that he then gave the information regarding arrest of Bhagwan Sahai to his brother and since the offences were bailable and Bhagwan Sahai did not produce any surety, hence he remained in his custody. He has testified that the accused Bhagwan Sahai and Anis Raj then led them to the scene of crime i.e. road near DDA market and pointed out the place of the quarrel on which he prepared the site plan vide Ex.PW5/A. The witness has also deposed that Bhagwan Sahai then led them to the house of Sanjay Dhankar at Rajpur Gur Mandi where they could not find him and Bhagwan Sahai then led them to to the house of Mohan Singh situated at DTC Colony, Rana Pratap Bagh but Mohan Singh also could not found at his house after which they returned to the Police Station. Witness has further deposed that on the next day i.e. on 11.12.2010 he along with SI Ranbir, PSI Sombir and Ct. Sanjay went to DDA market and made inquiries from the local shopkeepers and tea vendors but could not get any clue with regard to the any incident. According to the witness there he recorded the statements of Raju Mathur, Rajender and B.S. Mehta, the shopkeepers of the area and while they were still at the scene of crime one Kapil Daggar also reached there and informed that Sanjay Dhankar was present at his house and they then again went to Rajpura St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 122 Gurmandi where Sanjay Dhankar was found present at his house. Witness has further deposed that he then interrogated Sanjay Dhankar after which he arrested him vide memo Ex.PW23/A, conducted his personal search vide memo Ex.PW23/B and his disclosure statement was also recorded which is Ex.PW6/A. Witness has also deposed that since the offence was bailable the mother of Sanjay Dhankar Samanta stood surety for him which he accepted and he was released on bail and they then came to the DTC colony to the house of Mohan Singh but they could not find him at his house. Witness has further deposed that then they went to BBM Depot where he recorded the statement of WHC Parvati and relieved her and he then returned to the Police Station. According to the witness in the police station some relative of Bhagwan Sahai came and stood surety for him after which he was relieved. He has testified that on 13.12.2010 he went to BJRM hospital to inquire about the status of the victim and deposited the MLC for obtaining the opinion and came to know that the patient has been referred to Trauma Center for better management on which he went to Trauma Center where he met the relatives of victim Manoj @ Vicky. According to the witness he moved an application to CMO Trauma Center for information regarding the nature of injuries and status of the patient which application is Ex.PW26/A on which he was told to come after a couple of days. Witness has further deposed that on 15.12.2010 he again went to Trauma Center and collected the report and came to know that the patient Vicky was suffering from grievous injuries on which he returned to the police station. He has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 123 testified that he discussed the matter with the SHO and on the basis of the report the provisions of Section 308 IPC were added. According to him since all the three accused were on police bail, he again tried to search for them in view of new additions of provisions of section 308 IPC but could not find them at their residences. He has further deposed that on 16.12.2010 he again went to the residence of all the three accused but could not find them and he again tried to search for them in the area but the accused Sanjay Dhankar, Bhagwan Sahai @ Chintu and Mohan Singh could not be located. He has further testified that on 18.12.2010 at about 1010:30 PM he received the information from duty officer that the Vicky who was admitted in the Trauma Center had expired on which he reached Trauma Center along with Ct. Sanjay from where he collected the various documents regarding the deceased and shifted the body to mortuary of BJRM hospital and made a request for preserving the dead body for 24 hours or may be even 72 hours, which he does not recollect. Witness has further deposed that he then returned to the Police Station and discussed the matter with the SHO and provisions of Section 302 IPC were added and case file was handed over to Insp. Rajesh Dhaiya.
(98) The witness has also deposed that that on 21.12.2010 he along with Insp. Rajesh Dhaiya and Insp. Ranbir went in search of the accused at their residences but they were not found available at their residences and they kept on searching for the accused in the area. According to the witness, in the evening at around 7 PM they saw Sanjay Dhankar and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 124 Bhagwan Sahai standing at DTC bus stand near the Nanak Pyau Gurudwara and they apprehended them. He has further deposed that he apprehended Sanjay Dhankar and SI Ranbir apprehended Bhagwan Sahai and they were both again interrogated by Insp. Rajesh Dahiya.
(99) Witness has further deposed that both accused were arrested vide memo Ex.PW12/C and Ex.PW12/A and their personal search was carried out vide memos Ex.PW12/B and Ex.PW12/D and thereafter both the accused were got medically examined from BJRM Hospital and then they returned to the Police Station where accused persons were put in the lock up of Police Station Model Town and they returned to the Police Station where his statement was recorded and he was relieved. The witness has correctly identified the accused Bhagwan Sahai and Sanjay Dhankar in the court.
(100) In his crossexamination by Ld. Defence Counsel, the witness has deposed that he was on duty on 10.12.2010 in Police Station Mukherjee Nagar from 8:00 AM to 8:00 PM. According to him, on that day he left the Police Station between 8:00 and 9:00 AM and returned after completing the proceedings at around 1011 PM and made a wapsi entry/ arrival entry in the Police Station and in the same also mentioned about the call and investigations conducted but he does not recollect the DD number of both the departure and arrival. Witness has denied the suggestion that he made no departure or wapsi/arrival entry and that is why he is unable to give the details of the same. According to him when he received the information St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 125 regarding quarrel at Hudson Lane he was in the locality only but does not remember where and in which case and he had reached the spot within 510 minutes of the receipt of information and when he reached there he found nobody i.e. not even the PCR officials. Witness has further deposed that thereafter he had reached the BJRM hospital. Witness has admitted that when he reached the hospital the MLC of Bhagwan Sahai and Manoj had already been prepared. According to him he gave no application to the doctor seeking permission to record the statement of Bhagwan Sahai and Manoj and has voluntarily explained that he only orally asked the doctor and when he reached the hospital, there were large number of public persons but he is not aware if they were the friends of Manoj. Witness has further deposed that the public persons who have been cited as an eye witnesses in the present case i.e. Kapil Dagar, Anis Raj and Chandan being friends of Manoj were present in the hospital at that time and doctor had declared Manoj @ Vicky fit for statement as he was conscious and oriented when he recorded his statement at the hospital. Witness has further deposed that Manoj @ Vicky affixed only his thumb impressions after giving his statement as he claimed that he was not in a position to put sign on account of the injury. He has admitted that Manoj had named only Bhagwan Sahai and Sanjay Dhankad in his statement and has voluntarily explained that he had also stated that there were also other friends of these persons but did not name them. Witness has admitted that while informing him regarding the injuries inflicted upon him Manoj did not specify that he had been given St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 126 danda blows or any other injury on his head and has voluntarily added that he simply stated that he had been given danda blows by Bhagwan Sahai and Sanjay Dhankar due to which he got injured on his hands and right leg. Witness has admitted that Manoj @ Vicky informed that the friends of Sanjay Dhankar and Bhagwan Sahai were also watching the incident from some distance. Witness has also deposed that there were scratch marks present on the neck of Bhagwan Sahai who did not tell him during interrogation that he sustained these injuries on his neck on account of the strangulation attempt by the other party. Witness has also deposed that he obtained no opinion from the doctor with regard to the injuries present on the body of Bhagwan Sahai. He has denied the suggestion that Bhagwan Sahai was picked up by him without getting a formal discharge from the hospital and has voluntarily added that the doctors has orally stated that there is no requirement of admitting him in the hospital and he took him after obtaining the MLC. Witness has further deposed that they went to the scene of crime after the registration of the FIR and after he obtained the coy of the FIR in the hospital and till such time he received the copy of the FIR Bhagwan Sahai, Anis Raj, Kapil Dagar and Chandan were present in the hospital and he recorded the statements of witnesses in the meanwhile. Witness has denied the suggestion that Bhagwan Sahai has also insisted upon registration of FIR on his version which he deliberately refused or that Bhagwan Sahai and Sanjay Dhankar made no disclosure statements. He has also denied the suggestion that he recorded the same of his own at a later St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 127 stage in connivance with the friends and family of the deceased only to connect him with the case or that it is for this reason that the alleged disclosure statements of Bhagwan Sahai and Sanjay Dhankar bears the signatures of Kapil Dagar only who was friend of deceased Manoj. He does not remember if he had made any inquiries from accused Bhagwan Sahai and Sanjay Dhankar in respect of inflicting any head injuries with dandas or with a pot (gamla) on the person of Manoj @ Vicky. Witness has also denied the suggestion that he had not recorded the statement of any witnesses on 10.12.2010 or 11.12.2010 or that as a matter of cover up at a later stage when the victim expired the statements of various witnesses were recorded by him of his own at the instance of family and friends of the deceased while sitting in the police station itself on account of the immense media and public pressure. Witness has denied the suggestion that he has not carried out any investigations fairly and independently or that he was led by the friends and family of the deceased.
(101) According to the witness, he did not go to the BJRM hospital before 13.12.2010 to monitor the health of the deceased Vicky. Witness has denied the suggestion that even on 13.12.2010 he did not go to the BJRM hospital to inquire about the health of Vicky or that the MLC was not deposited in the BJRM hospital due to which reason the report/opinion on the MLC was not obtained till date. He has also denied the suggestion that he did not move an application before CMO Trauma Center on 13.12.2010 and the entire documentation has been ante dated and ante timed at a later St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 128 stage only to create evidence against the accused persons. Witness has further deposed that he did not give any information to the Ld. Illaka Magistrate in respect of the addition of section 308 IPC and later on the addition of section 302 IPC. He is not aware if any information was given to the Ld. Illaka Magistrate within 24 hours of the death of deceased Manoj and addition of section 302 IPC in the FIR already registered. He has further deposed that he had not moved any application to the concerned doctor to record further statement of injured Manoj @ Vicky after 10.12.2010. He is unable to tell whether Manoj @ Vicky remained conscious and was within his senses to make his statement between 10.12.2010 to 18.12.2010. According to the witness he did not meet the patient/ victim Manoj personally at Trauma center therefore he cannot tell whether he was conscious and oriented on 13.12.2010 and on 15.12.2010 when he reached there. He has also deposed that he did not discuss the issue regarding getting the statement of Manoj recorded from any executive Magistrate/ Judicial Magistrate on coming to know of his head injury and deterioration of his condition. Witness has further deposed that he does not remember whether he had made departure/arrival entries in respect of his visit to BJRM hospital and/ or Trauma Center on 13.12.2010 and 15.12.2010. Witness has denied the suggestion that he had not visited BJRM hospital and/or Trauma Center on 13.12.2010 and on 15.12.2010 or that he had obtained false opinion from Dr. Vikas Kuhar at a much later stage at the instance of the family and friends of deceased Manoj. Witness has denied St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 129 the suggestion that for this reason he had not cited Dr. Vikas Kuhar as witness in this case. He is not aware if Manoj @ Vicky was having criminal antecedents nor is he aware that Manoj @ Vicky had lodged FIR dated 05.08.2010 No. 278/2010 Police Station KW Camp/Model Town against one Ranjeet Thakur and one Pappu in which quarrel he had received a wound on left side of his forehead, size about 1 inch x ½ inch deep. Witness has denied the suggestion that he at the instance of the friends and family of the deceased used that old head injury of Manoj for which he was under going treatment to falsely implicate the accused persons in this false case. Witness has denied the suggestion that he had concocted the statements of the public witnesses in collusion with family and friends of deceased and SHO Insp. Rajesh Dhaiya. Witness has further deposed that he had not issued any notice to the surety of accused Sanjay Dhankar and accused Bhagwan Sahai or called them in the police station while they were on police bail after 10/11.12.2010. Witness has admitted that the rearrest of accused Sanjay Dhankar and accused Bhagwan Sahai on 21.12.2010 is from the same spot at the interval of one hour. He has denied the suggestion that accused Sanjay Dhankar and Bhagwan Sahai were called to the police station and were rearrested in this case on 19.12.2010 itself or that he has ante timed and ante dated all the facts of this case and for this reason he does not remember the important aspects of the case or that it is for this reason he have jotted down the facts and dates on his left hand and only after seeing them he was narrating in the court.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 130 STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(102) After completion of prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to them which they have denied. The accused Sanjay Dhankar @ Nakli has stated that he is innocent and has been falsely implicated in the present case. According to the accused, he was not even present at the spot of the incident as he along with his brother Sanjeev were attending the date in the Court of Executive Magistrate/ ACP Jahangirpuri at Police Staiton Jahangirpuri. He has further stated that he had only returned home by 5:00 PM and came to know about this incident when he was lifted from his house by police officials of Mukherjee Nagar namely Inderpal and he was made to sign certain blank documents and was falsely implicated in the present case.
(103) The accused Bhagwan Sahai @ Chintu has stated that he is innocent and has been falsely implicated in the present case. According to the accused he did not commit any offence as alleged nor did he make any disclosure statement. He has stated that his signatures were forcibly obtained by the police officials on some blank papers which were later on converted into various memos.
(104) The accused Mohan Singh @ Bunty has stated that he is innocent and has been falsely implicated in the present case. According to the accused twothree police officials came to his house in the first week of February 2011 in his search and told his parents to come at Police Station St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 131 Mukherjee Nagar regarding some queries in the present case. He has further stated that thereafter the said police officials forcibly took his father to the Police Station and confined him for twothree days at the Police Station and when he went to the Police Station to object their illegal act, he was falsely implicated in this case.
(105) However, the accused persons have preferred not to examine any witness in their defence.
FINDINGS:
(106) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the memorandum of arguments filed by both the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
Sr. Name of the Details of deposition
No. witness
Public witnesses:
1. Dev Raj (PW4) He is an eye witness to the incident and has deposed on the
following aspects:
1. That he alongwith his friend Rajeev Saini frequently used to visit DDA Market, Hudson Lane in afternoon after finishing his work for taking tea or for smoking.
2. That on 10.12.2010, at about 3.00 PM, he alongwith his friend Rajeev Saini was taking tea at Sainik Snacks, Hudson Lane, DDA Market where he saw that just in front of the Sainik Snacks shop, some hot talks were going on between some boys.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 132
3. That thereafter, he saw that two boys started beating one boy with Dandas and that boy was trying to save himself from the Danda blows with his hands.
4. That two other boys were trying to rescue the said boy and the owner of Sainik Snacks and one more shopkeeper also tried to intervene.
5. That meanwhile, one more associate of the assailants came there and he also joined his associates and started giving beatings to the said boys.
6. That the persons who were trying to intervene to rescue the said boy were threatened by the said three assailants and Dandas were shown to them, as such none came forward and they all gave beatings to the said boy mercilessly.
7. That the third boy, who had joined his associates later on, lifted a flower pot (Gamla) having a plant in it and hit the same on the head of the said boy, who after receiving number of Danda injuries was lying on the Road.
8. That someone informed the police and the said three boys (assailants) put the injured boy in a rickshaw and took him away, saying that he was trying to snatch their gold chain.
9. That those three boys continued to give beatings to injured boy even after putting him in the rickshaw.
10. That after some time, police arrived there and made inquiries.
11. That later on he came to know through news channel that the said Vicky had expired, as the photograph of deceased was shown on the TV and he recognized him.
The witness has identified the accused Sanjay Dhankar and Bhagwan Sahai in the Court (by pointing out towards them) as the boys who were present at the spot from the very beginning and gave beatings to the injured, whose name later on he came to know as Vicky. He has also identified the accused Mohan Singh @ Bunty in the Court St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 133 (by pointing out towards him) as the boy who had joined his associates later on and also given beatings to Vicky with Danda and struck the flower pot on his head. The witness has explained that the flower pot was made of cement and was big one.
2. Anis Raj (PW5) He is a friend of the deceased is an eye witness to the incident. He has deposed on the following aspects:
1. That deceased Manoj Kumar @ Vicky was a student of 1st year at that time where as he (witness) was a student of B. Com. 3rd year and deceased Manoj Kumar was known to him being his junior.
2. That on 10.12.2010, at about 3.00 PM, he alongwith Manoj Kumar @ Vicky, Kapil Dagar and Chandan reached at DDA Market, Hudson Lane to take tea and after taking the tea, Chandan received a call on his mobile phone and as such, he went towards the gate to receive the call in privacy whereas he, Kapil Dagar and Manoj were standing on the road.
3. That when they were about to leave, accused Sanjay Dhankad and Chintu whose full name is Bhagwan Sahai who were known to him earlier also, came there and both accused Sanjay Dhankad and Bhagwan Sahai and started arguing with Manoj @ Vicky.
4. That both the accused told him "Bahut Bar Pehle Bhi Tum Chhoot Chuke Ho, Aaj Tumhein Nahin Chhodenge".
5. That Vicky was requesting them to leave him, but they did not permit him to go and started beating him with fists, due to which Vicky fell down and meanwhile, first accused Bhagwan Sahai @ Chintu took a Danda from the nearby stall (Thiya) of a Washerman (Dhobi), who used to iron clothes there and started giving Danda blows on the person of Manoj @ Vicky.
6. That accused Sanjay Dhankad also brought a Danda from the same stall and at that time, there was none present at the said stall and both accused St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 134 Sanjay Dhankad and Bhagwan Sahai started giving Danda blows to Manoj @ Vicky.
7. That Manoj was saving his head from the blows of Danda given by both the abovesaid accused, with his both hands.
8. That he, Kapil Dagar and some other persons, who had collected there when tried to save Manoj, both the accused extended threats to face dire consequences to them and shown Dandas to them, if they tried to rescue Manoj.
9. That the assailants also slapped one old shopkeeper, who tried to intervene to save Manoj and Manoj @ Vicky who was lying on the road became unconscious.
10. That in the meanwhile one Mohan Singh @ Bunty, who was also known to him prior to the incident, also came there and picked up a big flower pot made of cement, which was lying there and hit that pot (Gamla) on the head of Manoj, who was lying unconscious on the road.
11. That the pot was broken into pieces and even after hitting the pot on the head of Manoj, all the three accused gave beatings to Manoj.
12. That one boy, whom he was not knowing earlier, also arrived on the spot alongwith Mohan @ Bunty.
13. That he came to know the name of the said boy as Satish later who also gave kick blows to Manoj @ Vicky alongwith the three accused persons, while Manoj was lying on the road.
14. That Satish lifted Manoj @ Vicky from the road, threw him in a cycle rickshaw and they all moved from there, saying that they were taking Manoj to the police station as he had tried to snatch their gold chain.
15. That prior to hitting the pot on the head of Manoj @ Vicky by accused Mohan Singh @ Bunty, Chandan had also reached there who dialed number 100.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 135
16. That he alongwith Kapil Dagar reached at Police Station Maurice Nagar to inform the police but the officials of Police Station Maurice Nagar told them that the place of incident does not fall within their local jurisdiction and asked them to go to Police Station Mukherjee Nagar.
17. That when they reached again at the spot, PCR was present near NDPL Office and they called their other friends and thereafter, they all reached at Police Station Mukherjee Nagar where they came to know that Manoj @ Vicky had already been shifted to BJRM Hospital by the police.
18. That at Police Station Mukherjee Nagar they saw that accused Bhagwan Sahai @ Chintu giving his statement to the Investigating Officer SI Inderpal Singh to the effect that Manoj @ Vicky alongwith his associates attempted to snatch his gold chain.
19. That they narrated the facts of the case to SI Inderpal Singh and identified accused Bhagwan Sahai @ Chintu, who was present there and thereafter, he, Chandan, Kapil Dagar, brother of Manoj and some other boys reached at BJRM Hospital.
20. That when they reached at the hospital, at that time, the doctors were putting plaster on both the forearms of Manoj @ Vicky and at that time, Manoj was only blinking his eyes and was not responding properly and even not able to talk properly.
21. That after about 3045 minutes of their reaching the hospital, Manoj @ Vicky became unconscious.
22. That the Investigating Officer recorded his statement and also the statements of Kapil Dagar and Chandan after which he along with the Investigating officer reached at the spot where Investigating Officer prepared site plan at his instance which is Ex.PW5/A.
23. That the accused Bhagwan Sahai @ Chintu was arrested vide arrest memo Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/C. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 136
24. That he alongwith police also reached at the house of Sanjay, but the same was found locked at that time.
3. Kapil Dagar He is another eye witness to the incident who has deposed on (PW16) the following aspects:
1. That Manoj Kumar @ Vicky son of Ganesh Kumar Singh was his friend.
2. That on 10.12.2010, at about 3.00 PM, he along with Manoj Kumar, Anis Raj and Chandan had gone to DDA Market, Hudson Line and when after taking tea, they were standing on the road, when suddenly accused Bhagwan Sahai @ Chintu and Sanjay Dhankad @ Nakli, came there and they both told Manoj Kumar @ Vicky "Aaj tujhe nahi chhorenge, tu bahut dino se bach raha tha".
3. That both the aforesaid accused were known to him through Manoj Kumar @ Vicky as he (Manoj @ Vicky) had informed that they both are bad elements.
4. That first the accused Bhagwan Sahai @ Chintu gave beatings to Manoj with hands and Manoj was made to fall on the ground after which accused Bhagwan Sahai @ Chintoo brought a danda from a nearby kiosk (Thia) of one press wala and started giving danda blows aiming the head of Vicky.
5. That Vicky was trying to save his head by his both the hands and in this process, he sustained injuries on his both the hands.
6. That meanwhile, Sanjay @ Nakli also brought a danda from the same place and started giving danda blows to Manoj @ Vicky and when anybody tried to intervene or to save Manoj, they both threatened him saying "Jo beech me aaya, uska bhi yahi haal karenge".
7. That Manoj @ Vicky was raising an alarm, "Chhor do chhor do", but both the accused gave merciless beatings to him and in the meanwhile, accused Mohan Singh @ Bunti, came there and also joined both the accused and started giving beatings to Vicky, who was lying on the road with kicks and was St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 137 saying, "Aaj nahi chorenge ise".
8. That thereafter accused Mohan Singh @ Bunti picked up a cemented flower pot (Gamla) which was kept there and hit the same on the head of Manoj @ Vicky, who at that time, was lying on the road.
9. That one Satish who is the younger brother of accused Bhagwan Sahai @ Chintu also came there along with one rickshaw wala.
10. That they all including Satish lifted Manoj @ Vicky and thrown him in the said rickshaw and the beating by all of them including Satish continued.
11. That accused persons while taking Manoj @ Vicky in a rickshaw, were saying, "Isne hamari sone ki chain tori hai, aur hum ise thane le ja rahe hai".
12. That their friend Chandan Kumar informed the police after which he along with Anis Raj went to Police Station Maurice Nagar to call the police.
13. That one police official who was present at the gate of Police Station told them that the place of incident falls in the jurisdiction of Police Station Mukherjee Nagar on which he along with Anis Raj came back to the spot and stopped in front of office of NDPL since PCR was about to come and location was not clear to the PCR.
14. That PCR Van arrived there and Chandan was already with them after which they all reached at Police Station Mukherjee Nagar and at that time, accused Sanjay @ Nakli was also there.
15. That they pointed out to the police that he was one of the assailant but nobody bothered and then they came to know that Manoj @ Vicky had already been shifted to BJRM Hospital.
16. That from Police Station Mukherjee Nagar, he along with Anis Raj, Chandan and some other friends, reached at BJRM Hospital.
17. That in the hospital, Manoj @ Vicky and Bhagwan Sahai @ Chintu both were present.
18. That his statement was recorded by the police on 10.12.2010, at the hospital and accused Bhagwan St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 138 Sahai @ Chintu was arrested and his personal search was conducted.
19. That on 11.12.2010, he again joined the investigation of the present case and on that day, on the call of Investigating Officer, he reached at DDA Market, Hudson Lane, Delhi at about 11.15 AM where he informed the police that accused Sanjay Dhankad @ Nakli was present at his residence i.e. House no. 94, Rajpura, Gur Mandi, Delhi.
20. That thereafter he along with police team reached at the house of accused Sanjay Dhankad at about 11.30 AM after which the accused Sanjay Dhankad was arrested and his personal search was conducted and Investigating officer recorded his disclosure statement which is Ex.PW6/A.
21. That after the arrest of accused Sanjay, they reached at the house of Mohan Singh @ Bunti at about 1.30 PM at DTC Colony, where father of Mohan Singh @ Bunti namely Narender Kumar met them whom informed the police that Bunti was missing after the incident and he was unaware of his whereabouts.
22. That they informed the Investigating Officer that no such incident of chain snatching took place and the Investigating Officer went with them to the spot and on verification, he found that no chain snatching was done by Manoj @ Vicky as he was with them at that time and it was only a false allegations made by accused.
4. B.S. Mehta (PW7) This witness is running an eatery at Shop No.12, DDA Market, Hudson Lane, Kingsway Camp, Delhi under the name and style of Kaveri Delicious Food which shop is situated near the campus area and is on rent. He has deposed on the following aspects:
1. That on 10.12.2010 at about 3:003:30 PM some quarrel took place between some strangers.
2. That he is not known to them and did not see their faces and he only saw that some quarrel was going on.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 139
3. That at that time he was present at his shop and he did not go to see as to what had happened since many boys surrounded his shop for getting food and that is why he could not see the quarrel.
4. That subsequently he came to know that some boys had taken away one boy on a rickshaw and he also came to know that it was a matter of chain snatching.
This witness has turned hostile on the incident as well as on the identity of the accused persons.
5 Ajay Kumar He is the elder brother of the deceased and has deposed on
(PW14) the following aspects;
1. That his younger brother Manoj Kumar was having
friendship with Ajay Kumar, R/o Rajpura, Gurmandi Delhi and also having friendship with Chandan, Anis Raj, Kapil Daggar.
2. That frequent quarrels took place between the Sanjay Dhankad @ Nakli and his associates with Ajay Kumar and his friends.
3. That his brother Manoj Kumar @ Vicky was the friend of Ajay Kumar that is why Sanjay @ Nakli and his friends were also against his brother Manoj and used to quarrel with him.
4. That on 10.12.2010 Kapil Dagar, Anis Raj and Chandan Kumar friends of his brother Manoj Kumar informed him that Sanjay, Bhagwan Sahai and Mohan Singh gave beatings to his brother Manoj Kumar in Hudson lane, DDA market at about 3 PM by dandas mercilessly.
5. That his brother Manoj Kumar was also medically treated at Shushutra Trauma Center and on 18.12.2010 Manoj was declared dead by the doctors due to injuries and he identified the dead body of his brother Manoj Kumar @ Vicky vide his statement Ex.PW14/A.
6. That after postmortem dead body was handed over to them vide Ex.PW14/B. 6 Rajesh Patel He is the brother in law/ Jija of the deceased and has (PW16) deposed on the following aspects:
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 140
1. That deceased Manoj Kumar was having friendship with Anis Raj, Kapil Dagar and Chandan.
2. That accused Bhagwan Sahai, Sanjay and Mohan used to harass deceased Manoj Kumar @ Vicky and demanded money from him.
3. That one Ajay Kumar resident of Rajpura, Gurmandi was the friend of Manoj Kumar @ Vicky and that accused Sanjay is also resident of Rajpura, Gurmandi, Delhi.
4. That being the friend of the Ajay Kumar, accused Sanjay and his friends were against his brother in law Manoj @ Vicky.
5. That on 10.12.2010 at about 3:00 PM Chandan, Anis and Kapil Daggar informed them that Bhagwan Sahai, Sanjay and Mohan gave beatings to deceased Manoj @ Vicky at DDA Market and he was shifted to BJRM Hospital on which he (witness) went to BJRM hospital where he found Manoj seriously injured in BJRM Hospital.
6. That Manoj informed him that Bhagwan Sahai, Mohan and Sanjay gave beatings to him mercilessly and he found many injuries on the body of Manoj.
7. That Manoj was serious, therefore he was shifted to Trauma Center, Civil Lines for medical treatment where he was admitted in the ICU for about seven days and on 18.12.2010 Manoj was declared dead by the doctors.
8. That he identified the dead body of Manoj at the Mortuary of BJRM hospital vide Ex.PW15/A and after postmortem dead body was handed over to them vide Ex.PW14/B.
7 Ajay Kumar He is the friend of Ajay Kumar who has deposed as under:
(PW18) 1. That he is working as a supervisor in the MCD parking at Lajpat Nagar and he knew Manoj Kumar @ Vicky who was earlier residing at Rajpura, Gurmandi, Delhi on rent and later on shifted to Mukundpur, was his friend.
2. That he knew Sanjay @ Nakli who is also residing at Rajpura, Gurmandi, Delhi and has been residing St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 141 near his house and has a good relationship with him earlier.
3. That his (witness's) elder brother was doing the business of committees and father of Sanjay used to take part in the committees and there was a dispute of the money of the committees.
4. That father of Sanjay did not pay the committees amount and a quarrel took place between his brother and Sanjay regarding the money of the committees pursuant to which Sanjay and his friends gave beatings to his younger brother and a police case was registered in this regard wherein he (witness) was an eye witness of the incident.
5. That thereafter Sanjay and his friends were having enmity with him and his family members and some false cases were lodged by the Sanjay and his family members against them.
6. That Sanjay and his friends were also having enmity with him and his all friends who used to talk with him.
7. That on 10.12.2010 at about 3:30 PM he received a phone call from the friends of Manoj Kumar @ Vicky and informed him that Sanjay and his friends Mohan and Bhagwan Sahai gave beatings to Manoj @ Vicky in the Hudson lane by dandas.
8. That Manoj @ Vicky also talked with him on phone and informed him that Mohan, Bhagwan Sahai and Sanjay gave beatings to him by dandas and he came to know that Manoj was admitted in BJRM hospital in injured condition.
9. That he also reached at BJRM Hospital and thereafter Manoj was shifted to Shushruta Trauma Center, Civil Lines.
10. That on 18.12.2010 Manoj was declared dead by the doctors.
He has correctly identified the accused Sanjay, Bhagwan Sahai and Mohan in the court.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 142 8 Rajiv Saini He is a property dealer by profession and is an eye witness (PW19) to the incident. He has deposed on the following aspects:
1. That on 10.12.2010 at about 3:00 PM he along with Dev Raj were present at the Sainik Snacks at Hudson Lane, DDA Market for taking tea etc. and when they were taking tea in front of the Sainik Snacks they heard noise of quarrel and there were two boys who were abusing another boy and also giving beatings to him by the fist and leg blows.
2. That one more person came there and also gave beatings to the said victim boy and brought the said victim boy to the place where the washerman was doing the ironing work where the victim boy fell down on the ground.
3. That one assailant took out a danda from the roof of hut of the washer man and gave danda blows to the victim boy and another assailant also took one danda from the same place and gave danda blows to the victim boy.
4. That the victim boy was requesting the assailants not to give danda blows to him but all the three assailants continued to give danda blows to the victim boy and they were saying "isko aaj chhorna nahi hai, maaro isko".
5. That one assailant took one cemented pot (Gamla) with plant from the outside of the nearby house and hit the same on the head of the victim boy and the pot (Gamla) had broken in pieces after which one of the friend of the victim made a call to the police.
6. That thereafter the aforesaid three assailants put the victim boy in a rickshaw and took away the said victim boy from there by saying that the victim boy had snatched their golden chain and they were taking him to the Police Station.
7. That after ten minutes a PCR van came there and police made inquiries from the public collected there.
8. That police also made inquiries from them and they told the aforesaid facts to them.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 143
9. That three friends of the victim Vicky were also present there and he came to know their names as Kapil, Anis and Chandan and he also came to know the name of assailants as Nakli, Chintu and Bunty.
The witness has pointed out towards the accused Sanjay @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty and identified them correctly as the assailants. The witness has pointed out towards the accused Mohan as the person who had hit the injured with the Gamla / flower pot and the accused Sanjay and Bhagwan Sahai as the person who had inflicted danda blows on the injured. The witness has further added that the shop owner of the Sainik Snacks had gone to intervene and settle the quarrel but the accused also showed him the danda and threatened him on which he backed out being scared and nobody dared to intervene.
9. Raju Mathur This witness used to iron the clothes in front of the House (PW20) No. 2673, Hudson Lane, DDA Market Delhi. This witness has totally turned hostile on the incident as well as on the identity of the accused persons. He has however stated that on 10.12.2010 at about 3:00 PM he went to Kalyan Vihar to deliver the ironed clothes at a distance of one and a half kilometer from his work place and when he returned back at about 4:30 PM at his working place he saw many public persons there and he came to know from the public persons that a quarrel had taken place.
10. Chandan Kumar He is also the friend of the deceased and also an eye witness (PW21) to the incident. He has deposed on the following aspects:
1. That on 10.12.2010 at about 3:00 PM he along with his friend Vicky, Kapil and Anis had gone to take tea at Saini Tea Stall, DDA Hudson Lane and while they all were taking their tea, he received a telephone call from his one friend on his mobile phone No. 9540000124.
2. That while talking to his said friend over telephone, he went backside portion of the DDA Market and when he returned back to Saini Tea Stall, he saw that there was a verbal altercation tutu mainmain St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 144 between Sanjay Dhankar and Vicky @ Manoj.
3. That he knew Sanjay Dhankar since he was residing in their locality and noticed a scuffle between Sanjay Dhankar and Vicky @ Manoj.
4. That accused Sanjay Dhankar was having danda in his hand and started giving beatings to Manoj Kumar @ Vicky who was his friend.
5. That Sanjay Dhankar was accompanied with two/ three other more persons i.e. accused Bhagwan Sahai and Mohan Singh.
6. That the accused Mohan Singh assaulted on the person of Manoj Kumar with a pot (Gamla) and accused Bhagwan Sahai was also having a danda in his hand and was assaulting Manoj @ Vicky with danda.
7. That all the three accused persons were also associated with fourth person whose name he came to know later on as Satish and thereafter he made a call at 100 number.
8. That he could not take the option due to fear to save Manoj Kumar @ Vicky from the clutches of the accused persons as they were armed with the dandas and pot.
9. That thereafter he received a responding call from PCR as they were not came to know the exact location of the place of incident and thereafter he went to behind the office of NDPL to receive the PCR officials.
10. That they interrogated him and he disclosed all the facts to them whatever he had witnessed and in the meantime Anis and Kapil Dagar came at the spot when he was present with the PCR officials.
11. That thereafter twothree their friends incidentally reached at the place where he along with PCR official was standing.
12. That thereafter he explained the way to the spot of incident to the PCR officials and they proceeded to the place of incident where accused persons were St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 145 giving beatings to Manoj and he proceeding on foot for the spot of incident.
13. That when he reached at the place of incident he noticed that accused persons were taking the injured Manoj in a rickshaw while announcing that Manoj @ Vicky had snatched the chain and subsequently he came to know that they took Manoj to the Police Station Mukherjee Nagar.
14. That on the very same day at about 6.00/ 6.30PM he went to BJRM Hospital, Jahangir Puri where Manoj was found admitted and was in semiconscious condition having a plaster on his both hands and was crying with the pain of the injury and was saying "theek haitheek hai".
15. That thereafter he (Manoj @ Vicky) became unconscious and when police came in the hospital, they made formal inquiry from him.
16. That after some days he was called at the police station where his statement was recorded.
17. That thereafter he came to know that Manoj Kumar was shifted to the Trauma Center, Civil Lines where he scummed to his injuries.
11. Rajender Singh He is an ExArmy Man and is running a shop of snacks at (PW27) shop No. 16 DDA market Hudson Lane since 1997. He has deposed on the following aspects:
1. That it was winters of the year 2010, he was at his shop when at about 23 PM he heard the noises of young boys running here and there and of the quarrels and he saw these boys running here and there.
2. That large number of public persons were also present.
3. That he saw one boy being taken away by public persons.
4. That later police officials also came to the spot but he is not aware who were the persons who were quarreling and the jhagra had taken place in front of house No. 2672, Hudson lane which is away from his shop.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 146
5. That the boys who were running here and there were the boys who normally come to the market.
This witness has turned hostile on the identity of the accused persons.
Witnesses of Medical Record:
12. Dr. Neeraj Mishra This witness has proved the following aspects:
(PW1) 1. that on 10.12.2010 one patient Vicky S/o. Sh. Ganesh was referred by the CMO to Ortho SR and Surgery SR where he (witness) examined the patient.
2. That the patient was having swelling on both forearm, both hands and left leg, as a result X Ray of both forearms, both hands, bilateral foot and left leg was conducted.
3. That after going through the X Ray and physical examination of the patient, as per the report given by Radiologist Dr. Shipra Rampal, it was observed that the patient had fracture of bilateral ulna (both forearms) and fracture middle phalanx right little finger from Orthopedics.
4. That in his opinion nature of injury was Grievous from Ortho side and the patient was referred to SR Surgery for giving the final opinion.
5. That in this regard his opinion dated 16.12.2010 on the MLC Ex.PW1/A at point A signed by him at point B and his detailed examination finding is on the back of MLC and signed by him at point C.
13. Dr. Satyendra This witness from CMO Sushruta Trauma Center has Kumar (PW13) proved:
1. That on 18.12.2010 Dr. Kavita Tripathi had prepared the Death Report in respect of deceased Vicky S/o Ganesh, aged 18 years, R/o 157, Mukundpur, Delhi vide Ex.PW13/A bearing signatures of Dr. Kavita at point A.
2. That according to the death certificate the cause of death was severe head injury with diffuse axonal injury with ARDS which observations are mentioned at encircled portion X. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 147
3. That Dr. Kavita also prepared the death summary in respect of the above deceased which is Ex.PW13/B.
14. Dr. V.K. Jha He is the Autopsy Surgeon who has proved having conducted (PW16) the postmortem examination on the body of the deceased vide postmortem examination report Ex.PW16/A. He has proved that there were following external injuries on the dead body of the deceased:
1. Multiple healed abrasions on front of left leg, right leg, right medial malleolus, left arm and face, right face and right arm.
2. Fracture deformity upper end left forearm.
3. Fracture deformity proximal phalanges of ring finger right hand.
4. Healed bruise on upper lip.
The witness has also proved that on internal examination there was subscalp hemotoma on frontal region, fracture left frontal bone and fracture anterior cranial fossae and in stomach yellowish fluid was present and after postmortem examination he opined the cause of death as shock and craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force diverted upon head by other party, all injuries were antemortem in nature and time since death was consistent with hospital time of death i.e. 10:30 PM on 18.12.2010.
15. Dr. R.S. Mishra This witness has proved the following aspects:
(PW17) 1. That on 10.12.2010 at about 5:10 PM the patient Manoj Kumar @ Vicky S/o Ganesh was brought to the hospital by Commander 12 Ct. Paro (No. 1774 PCR) with alleged history of physical assault and the patient was examined by Dr. Manish Sachan, JR (Casualty) vide MLC Ex.PW1/A.
2. That 10.12.2010 at around 10:40 PM the patient Chintu @ Bhagwan Sahai S/o Narayan Singh was brought to the hospital by Commander 12 HC Paro (No. 1774 PCR) with alleged history of physical assault and the patient was medically examined by Dr. Manish Sachan vide MLC Ex.PW17/A. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 148 Police/ Official witnesses:
16 HC Arvind Kumar He is a formal witness being the Duty Officer who has (PW2) proved the computer generated copy of FIR which is Ex.PW2/A and his endorsement on the rukka which is Ex.PW2/B.
17. W/HC Ranjana She is a formal witness has proved having recorded DD No. (PW3) 25A which is Ex.PW3/A and DD No. 26A which is Ex.PW3/B.
18. SI Prem Singh He is a formal witness who has brought the attested copy of (PW8) the PCR Forms from the record of PCR office which are Ex.PW8/A, Ex.PW8/B, Ex.PW8/C and Ex.PW8/D.
19. W/HC Parwati She is also a formal witness being the PCR Van Incharge (PW9) who has proved the following aspects:
1. That on 10.12.2010 at around 3:50 PM she received an information that a snatcher who had been badly beaten by public persons was present near main gate of Police Station Mukherjee Nagar and was bleeding heavily on which at about 3:37 PM she along with staff reached at the main gate of Police Station Mukherjee Nagar where a boy namely Vicky was found in injured condition.
2. That another boy namely Chintu was found present who informed them that Vicky had snatched his gold chain and public had caught and beaten him while Vicky stated that they were having previous enmity due to which reason Chintu and his other friends had beaten him.
3. That both the them were taken to BJRM Hospital and in the meanwhile SI Inderpal met them.
4. That on the way to BJRM Hospital she also informed Police Control Room about the facts of the incident.
20. SI Tarun Kumar He is a formal witness who has proved that on 19.12.2010 he (PW10) accompanied the Investigating Officer Inspector Rajesh Dahiya and reached Mortuary BJRM Hospital where the dead body of the deceased was identified by his elder brother Ajay Kumar and brother in law/ Jija Rajesh Patel after St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 149 which the postmortem examination on the dead body was got conducted and the Autopsy Surgeon handed over to him the exhibits of the deceased which he handed over to the Investigating Officer who seized the same vide Ex.PW10/A.
21. Inspector Mahesh He is a formal witness being the Draftsman who has proved Kumar (PW11) having prepared the scaled site plan which is Ex.PW11/A.
22. SI Ranbir Singh He is a formal witness who has proved the following aspects:
(PW12) 1. That on 19.12.2010 he accompanied the Investigating Officer Inspector Rajesh Dahiya and reached Mortuary BJRM Hospital where the dead body of the deceased was identified by his elder brother Ajay Kumar and Jija Rajesh Patel after which the postmortem examination on the dead body was got conducted and the Autopsy Surgeon handed over the exhibits of the deceased to SI Tarun Kumar who handed over the same to the Investigating Officer who seized the same vide Ex.PW10/A.
2. That on 21.12.2010 at about 7:00 PM when they reached near Nank Piao Gurudwara they saw Sanjay and Bhagwan Sahai standing near bus stand DTC Colony.
3. That he apprehended the accused Bhagwan Sahai and SI Inderpal apprehended Sanjay.
4. That the accused Bhagwan Sahai was arrested vide memo Ex.PW12/A, his personal search was conducted vide memo Ex.PW12/B, the accused Sanjay Dhankar @ Nakli was arrested vide Ex.PW12/C and his personal search was conducted vide memo Ex.PW12/D.
5. That both the accused were got medically examined at BJRM Hospital after which they were lodged in lockup.
23. Ct. Pramod This witness has joined the investigations with SI Inderpal Kumar (PW22) and has proved the following documents:
Ex.PW22/A Statement of the injured Manoj
Ex.PW22/B Endorsement on the statement of injured
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 150
Ex.PW5/B Arrest memo of Bhagwan Sahai
Ex.PW5/C Personal search memo of Bhagwan Sahai
Ex.PW22/C Disclosure statement of Bhagwan Sahai
Ex.PW5/A Pointing out memo by Bhagwan Sahai
24. Ct. Sanjay This witness has also joined investigations with SI Inderpal
(PW23) and has proved the following documents:
Ex.PW23/A Arrest memo of accused Sanjay
Ex.PW23/B Personal search memo of accused Sanjay
Ex.PW6/A Disclosure statement of accused Sanjay
Ex.PW23/C Surety bond of accused Sanjay
25. Inspector Rajesh He is the subsequent Investigating Officer of the present case Dahiya (PW24) and has proved the following documents:
Ex.PW24/A Brief facts
Ex.PW24/B Form 25.35(1)(B)
Ex.PW24/C Request for postmortem
Ex.PW10/A Seizure of blood gauze of the deceased
Ex.PW12/C Arrest memo of accused Sanjay
Ex.PW12/A Arrest memo of accused Bhagwan Sahai
Ex.PW12/B Personal search memo of Sanjay
Ex.PW12/D Personal search memo of Bhagwan Sahai
Ex.PW24/D Arrest memo of accused Mohan Singh
Ex.PW24/E Personal search of Mohan Singh
Ex.PW24/F Disclosure statement of Mohan Singh
26. Inspector Suresh He is a formal witness who has proved that after completion Chand (PW25) of investigation he had filed supplementary charge sheet against accused Mohan Singh @ Bunty in this case.
27. SI Inderpal Singh He is the initial Investigating Officer who has proved the (PW26) following documents:
Ex.PW22/A Statement of injured Manoj
Ex.PW22/B Endorsement on the statement of injured
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 151
Ex.PW22/C Disclosure statement of Bhagwan Sahai
Ex.PW5/B Arrest memo of Bhagwan Sahai
Ex.PW5/C Personal search memo of Bhagwan Sahai
Ex.PW5/A Rough site plan
Ex.PW23/A Arrest memo of accused Sanjay
Ex.PW23/B Personal search memo of Sanjay
Ex.PW6/A Disclosure statement of accused Sanjay
Ex.PW26/A Application for obtaining opinion on the
nature of injuries
Ex.PW12/C Arrest memo of accused Sanjay
Ex.PW12/A Arrest memo of accused Bhagwan Sahai
Ex.PW12/B Personal search memo of Sanjay
Ex.PW12/D Personal search memo of Bhagwan Sahai
(107) Coming now to the microscopic evaluation of the evidence
against the accused persons.
Promptness in registration of FIR and Interpolations:
(108) The case of the prosecution is that there is no delay in registration of FIR which was registered on the statement of Manoj @ Vicky at 8:15 PM on 10.12.2010. I may observe that the promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. In a case where soon after the occurrence FIR is lodged, it is difficult to believe that false story was cooked up (Ref.:
Bhag Singh Vs. State of Punjab reported in 1971 Cr LJ 903).St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 152
(109) In the present case it is evident from the record that the incident took place at about 3:00 PM and PCR calls were made at 15:28:43 (i.e. 3:28 PM) after which the injured were shifted to BJRM Hospital and the information was given to local police and after treatment the statement of the injured Manoj @ Vicky (deceased) was recorded by SI Inderpal, the Rukka was prepared at 7:45 PM and the FIR was promptly registered at 8:05 PM as evident from the copy of FIR Ex.PW21/A wherein the accused have been specifically named particularly Sanjay Dhankar and Bhagwan Sahai though in so far as Mohan Singh @ Bunty is concerned there is overwriting on the Rukka where the words Bunty (Mohan Singh) have been changed into Chintu (Bhagwan Sahai).
(110) The MLC Ex.PW1/A also shows that at 6:30 PM the victim Manoj @ Vicky was declared fit for statement. The initial Investigating Officer SI Inder Pal claimed that it is then that he recorded the statement of Manoj @ Vicky in the hospital. The eye witnesses who are friends of the deceased i.e. Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21) have all unanimously claimed that the thumb impressions of Manoj were taken on blank papers by SI Inderpal and when they asked him the reason he (SI Inderpal) told them that they were required to be converted into statements and documents if the case was required to be registered.
The FIR in question was already registered by 8:05 PM and the manipulations have been done before 8:05 PM pursuant to which the accused Bhagwan Sahai was formally arrested on the same day at 9:30 PM St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 153 and accused Sanjay was arrested at 12:00 PM on next day i.e. 11.12.2010 and granted bail. In fact the entire conduct and the manner of investigations of SI Inderpal is under suspect in the present case. There was no reason why under the given circumstances while recording the statement of injured Manoj, SI Inderpal did not take the signatures/ attestation of the doctor on duty on the said statement which he converted into a Rukka. Also, there is no certification by the doctor on duty to show that Manoj was unable to sign because there were injuries on his hands though there is overwhelming evidence to show that Manoj had received a number of injuries on his arms and fingers as evident from the MLC of the deceased. Yet despite the same it was still necessary for the Investigating Officer to have obtained a certificate from the doctor to the extent that Manoj was unable to sign his statement and hence after the statement of Manoj was recorded as per his version and after it was read over to him, that Manoj put his thumb impressions on the same. It is this lapse by SI Inderpal, to my mind, is deliberate and this I say because I have observed that in the entire statement of Manoj @ Vicky so recorded by the Investigating Officer which is Ex.PW22/A the name of Mohan Singh @ Bunty is not mentioned in the same despite the fact that in the Court all the eye witnesses which include both friends of the deceased and independent persons present at the spot, are unanimous in identifying him as one of the assailants. Further, and most importantly there is an interpolation in the statement of Manoj @ Vicky Ex.PW22/A which has been noticed in the last two lines wherein St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 154 'Bunty' (i.e. Mohan Singh) has been scrapped and over written as 'Chintu' (i.e. Bhagwan Singh). This interpolation is apparent to the naked eye when the last two lines of the original rukka are carefully read. This is only possible under circumstances when Mohan Singh @ Bunty was initially named by the the victim/ injured Manoj @ Bunty and then an attempt was made to save him (i.e. Mohan Singh @ Bunty) or else there is no reason why the name of Bunty (which has been erased) would have at all figured in the said statement of deceased Manoj @ Vicky on the basis of which the FIR was registered. This raises a doubt in the mind of this Court that perhaps there was somebody in Police Station Mukherjee Nagar who was protecting Mohan Singh @ Bunty throughout. This again I conclude on the basis of the fact that all the three accused i.e. Sanjay, Bhagwan Sahai and Mohan Singh were extremely confident after having mercilessly thrashed Manoj @ Vicky and while the friends of Manoj @ Vicky i.e. Kapil Dagar, Anis Raj and Chandan were still trying to figure out where to go i.e. whether at Police Station Maurice Nagar or Police Station Model Town and whom to approach and where and were desperately making calls at 100 number to seek help, the accused by that time had already rushed to Police Station Mukherjee Nagar by throwing the injured Manoj @ Vicky in a rickshaw and falsely announcing to the public persons that he (Manoj @ Vicky) was a chain snatcher and they were taking him to Police Station. Either the entire incident had been preplanned and rehearsed by the accused much before they had come to the spot or all the accused were St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 155 extremely confident of the kind of police help they were expecting and perhaps it is for this reason that the injured Manoj was brought first to Police Station Mukherjee Nagar.
(111) The medical evidence establishes that when the victim Manoj @ Vicky was brought to BJRM Hospital and also when he was shifted to Sushrut Trauma Center, he was conscious and oriented. Hence under the given circumstances the testimonies of the various eye witnesses and also the family members including the brother in law of the victim i.e. Rajesh Patel (PW15) cannot be doubted to the extent of the identity of the assailants particularly as regards the identity of the accused Sanjay Dhankad and Bhagwan Sahai as the persons who had initially given him the beatings and Mohan Singh @ Bunty as the person who joined them in the same and having smashed the flower pot/ gamla on the head of Manoj @ Vicky. Hence in this background, the registration of the FIR at 8:05 PM which could have been much earlier to that becomes relevant and it is writ large that the attempt of the police right from the initial stages was to save Mohan Singh @ Bunty which is reflected from the interpolations made in the last line of the statement of Manoj @ Vicky Ex.PW22/A wherein 'Bunty' have apparently been scraped and overwritten as 'Chintu' confirms the attempt of SI Inder Pal, the person who wrote this statement in his own handwriting, to save Mohan Singh @ Bunty or else there was no other way the Investigating Officer SI Inder Pal would have even known about the name of the third assailant (i.e. Bunty). The manner in which the last two lines have St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 156 been squeezed shows that these lines were added after it was pointed out by the victim that the name of Bunty was missing and hence to satisfy the victim the name of Bunty was first added along with the name of Sanjay but before the registration of the FR 'Bunty' was changed to 'Chintu'. (112) Hence, in view of my above discussion I hereby hold that the registration of FIR was not as prompt as expected and the reason for the same is writ large that an attempt was made to underplay the entire incident not only by invoking lesser charges but by attempting to save the third assailant i.e. Mohan Singh @ Bunty.
Medical Evidence:
(113) Dr. R. S. Mishra (PW17) from BJRM Hospital has proved that on 10.12.2010 at about 5:10 PM the patient Manoj Kumar @ Vicky S/o Ganesh was brought to the hospital by Commander 12 Ct. Paro (No. 1774 PCR) with alleged history of physical assault and the patient was examined by Dr. Manish Sachan, JR (Casualty) vide MLC Ex.PW1/A. As per the said MLC the victim Manoj @ Vicky was conscious and oriented at the time when he was brought to the hospital and there were following injuries on the boy of the victim Manoj @ Vicky:
1. Multiple abrasions at forehead.
2. Swelling over right side of face and root of nose.
3. Multiple abrasions at left side of chest and abdomen.
4. Swelling over right elbow, forearm and hand.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 157
5. Bruises over left lateral side of arm.
6. Swelling over lift forearm and hand.
7. Swelling over right and left foot.
8. Swelling over left leg and thigh.
(114) The above MLC corroborates the testimonies of the eye witnesses to the effect that the accused had given beatings to the victim Manoj @ Vicky mercilessly on his legs, hands and head. (115) Dr. R.S. Mishra has also proved that on 10.12.2010 at around 10:40 PM the patient Chintu @ Bhagwan Sahai S/o Narayan Singh was brought to the hospital by Commander 12 HC Paro (No. 1774 PCR) with alleged history of physical assault and the patient was medically examined by Dr. Manish Sachan vide MLC No. 18767 Ex.PW17/A. (116) Dr. Neeraj Mishra (PW1) from BJRM Hospital has proved that on 10.12.2010, the victim Vicky S/o Sh. Ganesh was referred by the CMO to Ortho SR and Surgery SR where he (witness) examined the patient. According to the witness, the patient was having swelling on both forearm, both hands and left leg, as a result X Ray of both forearms, both hands, bilateral foot and left leg was conducted and after going through the X Ray and physical examination of the patient, as per the report given by Radiologist Dr. Shipra Rampal, it was observed that the patient had fracture of bilateral ulna (both forearms) and fracture middle phalanx right little finger from Orthopedics. He has proved that in his opinion St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 158 nature of injury was Grievous from Ortho side and the patient was referred to SR Surgery for giving the final opinion.
(117) Ld. Defence Counsels have vehemently argued that the above opinion of Dr. Neeraj Mishra is not admissible in evidence since the Radiologist who had conducted the Xray of injuries, has not been examined. In this regard, I may mention that though the Radiologist has not been examined nor the Xray of the injured have been placed on record, yet it is evident from the MLC Ex.PW1/A that the opinion given by Dr. Neeraj Mishra was on the basis of the report of the Radiologist which was placed before him has been proved by him. Dr. Neeraj Mishra has proved that it was after going through the said reports that he had given his opinion regarding the nature of injuries and there is no reason to doubt the same. (118) Dr. Satyendra Kumar CMO from Sushruta Trauma Center who has been examined as PW13 has proved that on 18.12.2010 Dr. Kavita Tripathi had prepared the Death Report in respect of deceased Vicky S/o Ganesh, aged 18 years, R/o 157, Mukundpur, Delhi vide Ex.PW13/A and according to the death certificate the cause of death was severe head injury with diffuse axonal injury with ARDS which observations are mentioned at encircled portion X. Witness has also proved the Death Summary prepared by Dr. Kavita which is Ex.PW13/B. (119) Dr. V.K. Jha (PW16) is the Autopsy Surgeon who has proved that on 19.12.2010 he conducted the postmortem on the dead body of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 159 Manoj Kumar @ Vicky, 18 years, male son of Ganesh vide postmortem report Ex.PW16/A according to which there were following injuries on the body of the deceased:
1. Multiple healed abrasions on front of left leg, right leg, right medial malleolus, left arm and face, right face and right arm.
2. Fracture deformity upper end left forearm.
3. Fracture deformity proximal phalanges of ring finger right hand.
4. Healed bruise on upper lip.
(120) The witness has further proved that on internal examination there was subscalp hemotoma on frontal region, fracture left frontal bone and fracture anterior cranial fossae and in stomach yellowish fluid was present. He has proved having opined the cause of death as shock and craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force diverted upon head by other party, all injuries were antemortem in nature and time since death was consistent with hospital time of death i.e. 10:30 PM on 18.12.2010. (121) Here, I may observe that the Autopsy Surgeon has not opined as to whether the injuries were sufficient to cause death in ordinary course of nature and hence this Court has to decided the said aspect on the basis of the nature of injuries received by the victim. It is apparent from the evidence on record that repeated injuries had been inflicted upon the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 160 injuries not only on his hands and legs but also on his head when the flower pot was smashed on the head of the victim resulting into multiple fracture and craniocerebral damage. The fact that the subscalp hemotoma was present on frontal region confirms the oral testimonies of the eye witnesses that the flower pot was smashed on the head of the victim after he had fallen on the ground when the danda blows were being inflicted upon him. The brutality of the attack is reflected from the fact that there fact a fracture of bilateral ulna of both the forearms and on fingers and multiple abrasions on both legs, arms, face and bruises on lips. The manner in which the public persons were threatened and prevented from reaching out to help the deceased and cemented flower pot was smashed on his head is reflective of the intent of the accused and establishes the knowledge that the above act would cause the death of Manoj @ Vicky in the ordinary course of nature particularly in the light of the dangerous nature of injuries which the accused had inflicted upon the victim. (122) One of the argument raised by the Ld. Defence Counsels is that the head injury to which the deceased Manoj @ Vicky had succumbed was an old injury which he had received a couple of days prior to the incident, which defence is devoid of merits since the MLC Ex.PW1/A shows that all the injuries were fresh. Though suggestions in this regard have been given to the various witnesses that the victim Manoj @ Vicky was already having a head injury prior to the incident which suggestion has been denied, but the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 161 defence so alleged has not been established by the accused who have failed to produce any evidence to show that at the time of the incident the deceased was already having injuries on his head. Also, not even a single eye witness who was present at the spot has made a whisper of having seen any previous head injury on the body of Manoj @ Vicky. I am sure if this would have been so, the injured Manoj @ Vicky would have also informed the doctor who first attended to him about the said injury which again is not the case. Dr. Neeraj Mishra (PW1) has duly proved that the injuries on the body of Manoj @ Vicky were fresh. Here, I may observe that merely because the visible injuries on the head were in the form of abrasions and bruises, it would not in any manner create a dent in the prosecution version since the postmortem report is very categorical and confirms the internal injuries of the nature of multiple fracture of skull. It is only natural that the injuries were internal and could not be visible to the naked eye which could have been ascertained by Radiological examination. In fact Dr. Neeraj Mishra (PW1) has on a specific suggestion by the Ld. Defence Counsel in this regard explained that he had only examined the patient externally and had not examined his head to ascertain if there was any head injury since he had referred the patient to SR Surgery for detail examination and for ruling out the head, chest and abdominal injuries. Hence, in this background I do not find any merit in the defence so raised by the accused that the fatal injury received by the injured on his skull was an old injury and had not been received by the the victim Manoj @ Vicky in the present incident. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 162 (123) In so far as the medical evidence is concerned, I hereby hold that the nature of injuries are compatible to the eye witness count that initially danda blows were given on the hands and legs of the victim. Further, it has been alleged that he was given a blow on the head with a flower pot/ gamla. Though there is no bone injury on the skull but the head injury has been confirmed from the MLC Ex.PW1/A and postmortem report Ex.PW16A which confirms the cause of death as shock and craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force diverted upon head by other party.
(124) This being the background, I hereby hold that the medical evidence on record is compatible to the prosecution that the death of the deceased Manoj @ Vicky was a homicidal death caused as a result of craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force by the other party i.e. accused. Motive/ Common Intention:
(125) The case of the prosecution is that the deceased Manoj @ Vicky was having previous disputes with the accused Sanjay Dhankad @ Nakli. On the date of incident when Manoj @ Vicky had gone to DDA Market, Hudson Lane for taking tea along with his friends Anis Raj, Kapil Dagar and Chandan Kumar, the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu came to the spot and first gave fists and legs St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 163 blows to Manoj after which they took dandas from a nearby kiosk and gave danda blows to Manoj @ Vicky. In the meanwhile, the accused Mohan Singh @ Bunty joined them and picked up a flower pot and smashed it on the head of the deceased. The case of the prosecution is that all the accused persons were previously known to Manoj @ Vicky and wanted to teach him a lesson to Manoj @ Vicky because even a couple of days earlier Manoj @ Vicky had a dispute with them.
(126) Before coming to the evidence on merits, I may observe 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 would only strengthen the prosecution case and fortify the court in its ultimate conclusion but in the absence of any connecting evidence or link which would be sufficient in itself from the face of it, the accused cannot be convicted. Motive is best known to the perpetrator of the crime and not to others. Motives of men are often subjective, submerged and unamenable to easy proof that courts have to go without clear evidence thereon if other clinching evidence exists. A motive is indicated to heighten the probability that the offence was committed by the person who was impelled by the motive but if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in which the alleged motive.
(127) Regarding the motive of crime, it may be observed that in a case based on circumstantial evidence, the existence of motive assumed St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 164 significance though the absence of motive does not necessarily discredit the prosecution case, if the case stands otherwise established by other conclusive circumstances and the chain of circumstantial evidence is so complete and is consistent only with the hypothesis of the guilt of the accused and inconsistent with the hypothesis of his innocence. (128) Existence of motive for committing a crime is not an absolute requirement of law but it is always relevant fact, which will be taken into consideration by Courts as it will render assistance to Courts while analysing prosecution evidence and determining guilt of accused. [Ref.: IV (2012) SLT 257].
(129) Moreover, in a case where there is clear proof of motive for the commission of a crime, it affords added support to the finding of the court that the accused is guilty of the offence charged with. However, at the same time the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime alone, who knows as to what circumstances prompted him to certain course of action leading to the commission of the crime [Ref.: State of U.P. Vs. Bahu Ram reported in 2000 (4) SCC 515 and Ujjagal Singh Vs. State of Punjab reported in 2007 (14) SCALE 428].
(130) In so far as the common intention of the accused persons is concerned, I may observe that Section 34 IPC has been enacted on the principal of joint liability in the doing of a criminal act. The section is only St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 165 a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 166 say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC
134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793 and reference in this regard is also being made to the case of decision of the Delhi High Court in the case of Mohd. Saleem Vs. State, Crl. Appeal No. 484/2011 decided on 31.5.2013 by the Bench headed by Hon'ble Mr. Justice Sanjiv Khanna.
(131) I may also observe that there is no gainsaying that a common intention presupposes prior concert, which requires a prearranged plan of the accused participating in an offence. Such preconcert or preplanning St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 167 may develop on the spot or during the course of commission of the offence but the crucial test is that such plan must precede the act constituting an offence. Common intention can be formed previously or in the course of occurrence and on the spur of the moment. [Ref.: Suresh Vs. State of U.P. reported in (2001) 3 SCC 673].
(132) Now applying the settled principles of law to the facts of the present case, it is evident that in order to prove the motive the prosecution has placed its reliance on the testimony of Ajay S/o Balli Ram (PW18). He has proved that his (witness's) elder brother was doing the business of committees and father of Sanjay used to take part in the committees and there was a dispute of the money of the committees. According to him, father of Sanjay did not pay the amount in the committees amount on which a quarrel had taken place between his brother and Sanjay regarding the money of the committees pursuant to which Sanjay and his friends gave beatings to his younger brother and a police case was registered in this regard wherein he (witness) was an eye witness. He has testified that thereafter Sanjay and his friends were inimical with him and his family members and some false cases were lodged by the Sanjay and his family members against them. He has specifically deposed that Sanjay and his friends were also inimical with all his friends who used to talk to him (Ajay) and this was the reason of frequent quarrels between the two groups. (133) It is evident from the testimonies of friends of the deceased i.e. Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21) that St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 168 initially there was a verbal altercation between the accused and the deceased which was followed by a fist fight pursuant to which the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu picked up dandas from the nearby shops situated in the area and gave repeated blows on the arms and legs of Manoj @ Vicky. Soon thereafter the other friend of accused Sanjay & Bhagwan Sahai namely Mohan Singh @ Bunty also joined and it was Mohan Singh who picked up a flower pot lying outside the house situated at the corner, which flower pot he smashed on the head of the deceased as a result of which Manoj @ Vicky while Manoj was already lying on the ground after having fallen down on account of the beatings given to him. (134) In the present case the manner in which the accused Sanjay & Bhagwan Sahai came to the spot and first entered into a verbal altercation with Manoj @ Vicky and then exhorted that previously he had escaped their clutches but this time they would not leave him and then while Manoj @ Vicky was caught by the accused Sanjay Dhankad @ Nakli and beatings were given to him first by Bhagwan Sahai by fist and leg blows, followed by danda blows by both accused (Sanjay & Bhagwan Sahai) and even his vital parts were not spared and then Mohan Singh @ Bunty joined them in the beating and it was the accused Mohan Singh @ Bunty who picked up a flower pot and smashed it on the head of Manoj @ Vicky. The matter did not end here. Anybody who tried to come near the accused and the deceased including his friends were threatened. As evident from the testimonies of the witnesses who were present there, one elderly had tried to St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 169 intervene but the assailants had shown him the dandas and threatened him as a result of which everybody who was watching the incident keep away, which fact is borne out from the testimonies of Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21) the friends of the deceased who were all present at the spot and have come to the spot to have a cup of tea and also from the testimonies of Dev Raj and Rajeev Saini who were present at the spot. It is evident from their testimonies that they were all threatened not to come near Manoj @ Vicky while he was being beaten and they became so terrified of the consequences that they all kept away with nobody to save Manoj @ Vicky. It was the eye witness and friend of the deceased namely Chandan Kumar (PW21) and Anis Raj (PW5) who repeatedly made PCR calls as established from the PCR Forms Ex.PW8/A, Ex.PW8/B and Ex.PW8/C which have been placed on record showing that the first PCR call was made by Chandan Kumar from his mobile No. 9540000124 at 15:28:43 and at 15:31:36 and by Anis Raj from mobile No. 9899535266 at 15:34:09. Merely because the Investigating Officer did not do what he was required to do by placing on record the Call Detail Records of Chandan, does not mean that benefit of the same should be given to the accused. The witnesses Anis Raj (PW5) and Chandan Kumar (PW21) have in their testimonies confirmed this fact and there is no reason to disbelieve the same since his mobile number finds reflected in the PCR Forms. (135) Further, the testimonies of the various eye witnesses are very categorical. It is only the deceased and his friends who were present at the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 170 spot initially and as soon as the accused Sanjay Dhankar @ Nakli and Bhagwan Sahai came, they immediately started thrashing Manoj @ Vicky mercilessly and first gave him fist and leg blows that then took out dandas from a nearby kiosk and repeatedly hit him when in the meanwhile the accused Mohan Singh @ Bunty came and also gave danda blows to the victim. It is then that the intention to finish Manoj developed at the spot and when the accused exhorted isko aaj chhorna nahi hai, maaro isko,it was the accused Mohan Singh @ Bunty who picked up a flower pot lying outside a house and smashed it on the head of Manoj @ Vicky who by that time had fallen on the ground. They did not stop at that. Thereafter the injured Manoj @ Vicky was put in a rickshaw and the accused continued to give thrashing to Manoj @ Vicky within full public view in broad day light and then they announced to the crowd watching the incident that he was a chain snatcher who had snatched their chain and they w ere taking him to the Police Station which was a clever move on their part to give a new colour to the incident. This fact of announcing that Manoj was a chain snatcher and was then taken to Police Station stands confirmed from the testimony of W/HC Parvati (PW9) and PCR Forms showing that the call had been received that a chain snatcher had been caught and W/HC Parvati (PW9) has proved that when she reached outside the Police Station Mukherjee Nagar, Bhagwan Sahai and Manoj @ Vicky met her there and she immediately rushed both of them to BJRM Hospital. It is this which confirms the presence of the accused persons particularly Bhagwan Sahai at St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 171 the spot and lends credibility to the testimonies of eye witnesses Dev Raj (PW4), Anis Raj (PW5), Kapil Dagar (PW6), Rajeev Saini (PW19) and Chandan Kumar (PW21). The presence of the witnesses Anis Raj and Chandan Kumar also stands established from the PCR Forms Ex.PW8/A & Ex.PW8/B establishing that he had made calls to the PCR and also from the testimony of Rajeev Saini (PW19) who had given the names of the friends of the deceased as Anis Raj, Kapil Dagar and Chandan who were present at the spot and has also identified the accused persons in the Court. The manner in which the accused had exhorted each other not to leave the victim saying that previously he (victim) had escaped from their clutches and this time they would not leave him and thereafter together caught him and mercilessly beat him up confirms the accused having acted in common consortium, establishes their Motive and Intent and the manner in which the victim Manoj was mercilessly beaten particularly on the vital organ i.e. head where the flower pot/ gamla was smashed, confirms that the intention was to finish him. The manner in which the public persons were threatened and prevented from reaching out to help the deceased and cemented flower pot was smashed on his head is reflective of the intent of the accused and establishes the knowledge that the above act would cause the death of Manoj @ Vicky in the ordinary course of nature. I may note that the matter did not end here and it was by the act of all the three accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh that medical treatment was delayed to Manoj @ Vicky who had become almost senseless on account of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 172 the merciless beating given to him by the accused, who instead of rushing me to the hospital instead took him to Police Station Mukherjee Nagar and left him bleeding outside the gate of Police Station perhaps as a part of a strategy and it was only when the PCR came to the gate of Police Station and found Manoj @ Vicky in an injured condition and also the accused Bhagwan Sahai with him that they were both rushed to the BJRM Hospital, which again confirms the necessary intention and knowledge so attributed to them.
(136) This being the background, I hereby hold that there is ample material on record to prove that all the three accused namely Sanjay Dhankad, Bhagwan Sahai and Mohan Singh had acted in consortium and gave beatings to the victim which establishes that they all had shared a common intention to commit the murder of Manoj @ Vicky. Both the Motive of the crime and Common Intention as alleged by the prosecution stands established.
Ocular Evidence:
(137) 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 corroborate each other on material aspect connected with the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 173 offence, there is no reason to reject their testimonies.
(138) The case of the prosecution is based upon direct Ocular Evidence in the form of testimonies of Devraj (PW4), Anis Raj (PW5), Kapil Dagar (PW6), Rajeev Saini (PW19) and Chandan Kumar (PW21) who according to the prosecution were present at the spot of the incident and have proved not only the incident but have also identified the assailants.
The prosecution has also relied upon the testimonies of the shopkeepers B.S. Mehta (PW7) and Rajender Singh (PW27) who have corroborated and proved the incident and also the testimony of Raju Mathur the Dhobi/ Presswala who has also proved the incident though he is a witness of hear say. The case of the prosecution is that the victim Manoj @ Vicky along with his friends Kapil Dagar, Anis Raj and Chandan Kumar who were all students at the relevant point of time, had gone to DDA Market Hudson Lane to have tea and while Manoj @ Vicky, Anis Raj and Kapil Dagar were taking tea, Chandan received a telephone call on which he he went to other side to receive the call, when the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai came and started misbehaving with the deceased Manoj @ Vicky which soon resulted into a fist fight. Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu took out dandas from a nearby shop/ kiosk of washerman and started mercilessly beating Manoj @ Vicky. Soon thereafter their friend Mohan Singh @ Bunty also joined them who first beat up Manoj @ Vicky with a danda and after Manoj fell down, he picked up a flower pot/ gamla lying outside a house situated at the corner of the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 174 street and smashed it on the head of Manoj @ Vicky and continued to beat him. Large number of persons about 80100 gathered at the spot and some elderly person also tried to intervene but they were threatened by the assailants saying they would not spare if anybody would intervene as a result of which neither the eye witnesses Kapil Dagar, Chandan and Anis Raj nor any of the public persons intervened. Thereafter the accused persons put the injured Manoj @ Vicky in a rickshaw and took the injured away saying that they were taking Manoj to the Police Station as he had tried to snatch their gold chain. Chandan made repeated calls at 100 number but the police arrived at much later since the PCR could not find the spot of the incident. It is also the case of the prosecution that the accused in order to coverup their acts announced to the public persons that the person who was being beaten i.e. Manoj @ Vicky was a chain snatcher and had snatched their chain and that they were taking him to the Police Station.
(139) However, since the prosecution is placing its heavy reliance on the testimonies of Devraj (PW4), Anis Raj (PW5), Kapil Dagar (PW6), Rajeev Saini (PW19), Chandan Kumar (PW21), B.S. Mathur (PW7) and Rajender Singh (PW27), hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 175 again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(140) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 176 have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(141) Applying the settled principles of law to the facts of the present case coming first to the testimony of Dev Raj (PW4) an eye witness to the incident, I may observe that he is neither known to the accused nor to the victim and had witnessed the incident while he was present in the area and was taking tea along with his friend Rajeev Saini. The relevant portion of the testimony of Dev Raj (PW4) is as under:
"...... I reside at the above given address alongwith my family and I am in the business of supply of readymade garments. Most often, I alongwith my friend Rajeev Saini used to visit DDA Market, Hudson Lane in afternoon after finishing my work for taking tea or for smoking.
On 10.12.2010, at about 3.00 PM, I alongwith my friend Rajeev Saini was taking tea at Sainik Snacks, Hudson Lane, DDA Market. There I saw that just in front St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 177 of the Sainik Snacks shop, some hot talks were going on between some boys and thereafter, I saw that two boys started beating one boy with Dandas and that boy was trying to save himself from the Danda blows with his hands. Two other boys were trying to rescue the said boy. The owner of Sainik Snacks and one more shopkeeper also tried to intervene. Meanwhile, one more associate of the assailants came there and he also joined his associates and started giving beatings to the said boys. The persons, who were trying to intervene to rescue the said boy was threatened by the said three assailants and Dandas were shown to them, as such none came forward and they all gave beatings to the said boy mercilessly. The said third boy, who had joined his associates later on, lifted a flower pot (Gamla) having a plant in it and hit the same on the head of the said boy, who after receiving number of Danda injuries was lying on the road. Someone informed the police. The said three boys put the said injured boy in a rickshaw and had taken away him, saying that he was trying to snatch their gold chain. Even those three boys continued to give beatings to said injured boy after putting him in the rickshaw. After some time, police arrived there and made inquiries. Accused present in the Court today (witness pointed out towards accused namely Bhagwan Sahai and Sanjay Dhankar), correctly identified, were present at the spot from the very beginning and gave beatings to the injured, whose name later on I came to know as Vicky and accused present in the Court today (witness pointed out towards accused Mohan Singh @ Bunty), correctly identified, joined his abovesaid associates later on and had also given beatings to said Vicky with Danda St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 178 and struck the flower pot on his head. The flower pot was made of cement and was big one. Later on I came to know on news channel that the said Vicky had expired, as the photograph of deceased was shown on the TV and I recognized him....."
(142) This witness Dev Raj has been exhaustively crossexamined by the Ld. Defence Counsels but he has stood his ground. He has explained that he and his friend Rajeev Saini were sitting outside Sainik Snacks Hudson Lane, DDA Market while taking tea and the place of incident was about 30 feet which spot was clearly visible from the place where they were sitting there being no obstruction to the same. Dev Raj has further explained that there was no occasion for him to intervene since one elderly man had tried to intervene but the accused abused him and shown a danda to him. He has very categorically identified the accused Sanjay and Bhagwan Sahai who initially had a dispute with the deceased Manoj @ Vicky and was given danda blows by them. He has also explained that the accused Mohan Singh @ Bunty was the one who picked up the pot which was lying on the right side of the place of incident outside the house and it was a cemented pot with a width of 1 ½ feet and about two feet high. He has identified the accused Sanjay Dhankad as the boy who had called the rickshaw puller saying Is Ladke Ko Police Station Lekar Jaana Hai and has explained that the accused persons did not sit on the rickshaw and they kept giving danda blows to the injured even after putting him in the cycle rickshaw.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 179 (143) The testimony of Dev Raj (PW4) finds due corroboration from the testimony of his friend Rajeev Saini (PW19). The relevant portion of the testimony of Rajeev Saini (PW19) is as under:
"...... I am a property dealer by profession and doing the business by the name of Rajiv Properties. Dev Raj is my friend who is having a business of garments supply. On 10.12.2010 at about 3:00 PM I along with Dev Raj were present at the Sainik Snacks at Hudson Lane, DDA Market for taking tea, etc. When we were taking tea in front of the Sainik Snacks we heard noise of quarrel and there were two boys who were abusing the another boy and also giving beatings to him by the fist and leg blows, one more person came there and also gave beatings to the said victim boy and brought the said victim boy to the place where the washer man was doing the ironing work where the victim boy fell down on the ground and one assailant took out a danda from the roof of hut of the washer man and gave danda blows to the victim boy and another assailant also took one danda from the same place and gave danda blows to the victim boy. The victim boy was requesting to the assailants not to give danda blows to him but the all the three assailants continued to give danda blows to the victim boy and they were saying "isko aaj chhorna nahi hai, maaro isko". One assailants took one cemented pot (gamla) with plant from the outside of the nearby house and hit the same on the head of the victim boy and the pot (gamla) was broken in pieces. One of the friend of the victim made a call to the police. Thereafter, the aforesaid three assailants put the victim boy in a rickshaw and took away the said victim boy from St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 180 there by saying that the victim boy had snatched their golden chain and they were taking him to the police station. After 10 minutes a PCR van came there and police made inquiries from the public collected there. Police also made inquiries from us and we told the aforesaid facts to them. Three friends of the victim Vicky were also present there and I came to know their names as Kapil, Anis and Chandan. I also came to know the name of assailants as Nakli, Chintu and Bunty.
The above said assailants are present in the court today. Witness pointed out towards the accused Sanjay @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty and identified them correctly as the assailants. The witness has pointed out towards the accused Mohan as the person who had hit the injured with the Gamla / flower pot and the accused Sanjay and Bhagwan Sahai as the person who had inflicted danda blows on the injured.
I also want to add that the shop owner of the Shainik Snack had gone to intervene and settle the quarrel but the accused also showed him the danda and threatened him on which he backed out being scared and nobody dared to intervene....."
(144) He has also been crossexamined by the Ld. Defence Counsels at length. He has explained that he did not make any 100 number call nor he intervened because of the threats issued by the accused. I may observe that this witness has identified the accused persons not by name by by pointing out towards them and has explained that he came to know the names of Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 181 Singh @ Bunty at the spot since he had seen those boys calling out to each other by these names. He has also explained that the injured was in a semiconscious state of mind and was not in a position to standup due to injuries.
(145) A combined reading of the testimonies of Dev Raj and Rajeev Saini show that they have corroborated each other on material aspects which are as follows:
➢ That Dev Raj and his friend Rajeev Saini who are residents of the adjoining area and also having their business dealings around the area, frequently visited DDA Market, Hudson Lane in afternoon after finishing their work for having a cup of tea together or for smoking cigarettes.
➢ That on 10.12.2010, at about 3.00 PM when Dev Raj and his friend Rajeev Saini were taking tea at Sainik Snacks, Hudson Lane, DDA Market they saw two boys (accused Sanjay Dhankad and Bhagwan Sahai) abusing another boy (Manoj @ Vicky) and giving beatings to him by the fist and leg blows.
➢ That one more boy (Mohan Singh @ Bunty) came there and also gave beatings to the said victim boy and brought the said victim boy to the place where the Dhobi/ Presswala used to do the ironing work where the victim boy fell down on the ground.
➢ That one assailant (Bhagwan Sahai) took out a danda from the roof of hut of the washer man and gave danda blows to the victim boy and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 182 other assailant (Sanjay dhankad) also took one danda from the same place and gave danda blows to the victim boy.
➢ That the victim boy was requesting the assailants not to give danda blows to him but all the three assailants (Sanjay Dhankad, Bhagwan Sahai and Mohan Singh) continued to give danda blows to the victim boy and they were exhorting each other saying "isko aaj chhorna nahi hai, maaro isko".
➢ That the victim boy was trying to save himself from the Danda blows with his hands and two other boys (Anis Raj and Kapil Dagar) tried to rescue the said boy and the owner of Sainik Snacks and one more shopkeeper also tried to intervene but they were threatened by the assailants and Dandas were shown to them, as such none came forward and they all gave beatings to the said boy mercilessly. ➢ That one of the assailant who had joined his associates later (Mohan Singh), took one cemented pot (Gamla) with plant from the outside of the nearby house and hit the same on the head of the victim boy and the pot (Gamla) had broken in pieces after which one of the friends of the victim (Chandan) made a call to the police.
➢ That thereafter the aforesaid three assailants (Sanjay Dhankad, Bhagwan Sahai and Mohan Singh) put the victim boy in a rickshaw and took away the said victim boy from there by saying that the victim boy had snatched their golden chain and they were taking him to the Police Station.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 183 ➢ That those three boys continued to give beatings to injured boy even after putting him in the rickshaw.
➢ That after ten minutes a PCR van came there and police made inquiries from the public collected there.
➢ That three friends of the victim Vicky were also present there and Rajiv Saini came to know their names as Kapil, Anis and Chandan and also came to know the name of assailants as Nakli, Chintu and Bunty later on. (In the Court both the witnesses i.e. Dev Raj and Rajeev Saini have identified all the three accused i.e. Sanjay Dhankad, Bhagwan Sahai and Mohan Singh by pointing out towards them and Rajeev has clarified that he came to know the names of the assailants from public persons but cannot individually identify the assailants by names and can only identify them by faces). ➢ That Dev Raj came to know through news channel that the victim had expired, as the photograph of deceased was shown on the TV and he recognized him.
(146) It is evident from the aforesaid that both the witnesses Dev Raj and Rajeev Saini have identified the accused Sanjay Dhankar and Bhagwan Sahai in the Court (by pointing out towards them) as the boys who were present at the spot from the very beginning and gave beatings to the injured, whose name later on they came to know as Vicky. They have also identified the accused Mohan Singh @ Bunty in the Court (by pointing out towards St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 184 him) as the boy who had joined his associates later on and also given beatings to Vicky with Danda and struck the flower pot on his head. There are no material contradictions in their crossexaminations and admittedly their statements were recorded by the police to which a valid explanation is forthcoming. Both the witnesses have explained that it is was from the TV news channel that they came to know about the death of the injured, after which they made their statements to the police. I may observe that both Dev Raj and Rajiv Saini are not related to either the complainant/ victim side or the accused party. They reside in the adjoining area and have their business dealings in the area. They are regular visitors to the market during lunch where they came to have tea and cigarettes and it is this that explains their presence in the area which cannot be doubted. They have no interests or bias either against or in favour of the parties and are independent persons who have witnessed the incident and after having come to know the death of victim Manoj they have deposed in the Court. Their presence at the spot is natural being regular visitors to the area and there is no reason to doubt their versions because what they have testified also finds independent corroboration from the testimonies of other eye witnesses who are friends of the deceased.
(147) Now, coming to the testimonies of Anish Raj (PW5), Kapil Dagar (PW6) and Chandan (PW21) who are the friends of the deceased who were present at the spot at the time of incident and coming first to the testimony of Anis Raj (PW5), the relevant portion of his testimony is as St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 185 under:
".... Earlier I used to reside at 169B, Old Gupta Colony, Delhi. I have completed my graduation this year. Deceased Manoj Kumar @ Vicky was a student of 1st year and at that time, I was a student of B. Com 3rd year. Deceased Manoj Kumar was known to me being my junior.
On 10.12.2010, at about 3.00 PM, I alongwith Manoj Kumar @ Vicky, Kapil Dagar and Chandan reached at DDA Market, Hudson Lane to take tea. After taking the tea, Chandan received a call on his mobile phone and as such, he went towards the gate to receive the call in privacy and I, Kapil Dagar and Manoj were standing on the road. When we were about to leave, accused Sanjay Dhankad and Chintu, whose full name is Bhagwan Sahai came there, who were known to me earlier also. Both accused Sanjay Dhankad and Bhagwan Sahai, present in the Court today, correctly identified, started arguing with Manoj @ Vicky and both the accused told him, "Bahut Bar Pehle Bhi Tum Chhoot Chuke Ho, Aaj Tumhein Nahin Chhodenge".
Vicky was requesting them to leave him, but they did not permit him to go and started beating him with fists, due to which Vicky fell down. Meanwhile, first accused Bhagwan Sahai @ Chintu took a Danda from the nearby stall(Thiya) of a washerman (Dhobi), who used to iron clothes there and started giving Danda blows on the person of Manoj @ Vicky. Accused Sanjay Dhankad also brought a Danda from the same stall and at that time, there was none present at the said stall. Both accused Sanjay Dhankad and Bhagwan Sahai started giving Danda blows to Manoj @ Vicky. Manoj was St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 186 saving his head from the blows of Danda given by both the abovesaid accused, with his both hands. I, Kapil Dagar and some other persons, who had collected there when tried to save Manoj, both the accused extended threats to face dire consequences to us and showed Dandas to us, if we tried to rescue Manoj. They also slapped one old shopkeeper, who tried to intervene to save Manoj. Manoj @ Vicky, who was lying on the road became unconscious. Meanwhile, one Mohan Singh @ Bunty, present in the Court today, correctly identified, who was also known to me prior to the incident, also came there and he picked a big flower pot made of cement, which was lying there and hit that pot (Gamla) on the head of Manoj, who was lying unconscious on the road. The pot was broken into pieces. Even after hitting the pot on the head of Manoj, all the three accused gave beatings to Manoj. One boy, whom I was not knowing earlier, also arrived on the spot alongwith Mohan @ Bunty. I came to know his name as Satish later on. He also gave kick blows to Manoj @ Vicky alongwith the three accused persons, while Manoj was lying on the road. I can identify Satish, if produced before me. Satish lifted Manoj @ Vicky from the road, threw him in a cycle rickshaw and they all moved from there, saying that they are taking Manoj to the PS as he had tried to snatch their gold chain. Prior to hitting the pot on the head of Manoj @ Vicky by accused Mohan Singh @ Bunty, Chandan had also reached there and he dialed number
100. I alongwith Kapil Dagar reached at PS Maurice Nagar to inform the police. Police officials of PS Maurice Nagar told us that the place of incident does not fall within their local jurisdiction and asked us to go to PS Mukherjee Nagar. When we reached again at the spot, St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 187 PCR was present near NDPL Office. We called our other friends and thereafter, we all reached at PS Mukherjee Nagar. There at PS Mukherjee Nagar, we came to know that Manoj @ Vicky had already been shifted to BJRM Hospital by the police. There at PS Mukherjee Nagar, we saw that accused Bhagwan Sahai @ Chintu was giving his statement to the IO SI Inderpal Singh to the effect that Manoj @ Vicky alongwith his associates attempted to snatch his gold chain. We also narrated the facts of the case to SI Inderpal Singh and identified accused Bhagwan Sahai @ Chintu, who was present there and thereafter, I, Chandan, Kapil Dagar, brother of Manoj and some other boys reached at BJRM Hospital. When we reached at the hospital, at that time, the doctors were putting plaster on both the forearms of Manoj @ Vicky and at that time, Manoj was only blinking his eyes and was not responding properly and even not able to talk properly. After about 3045 minutes of our reaching the hospital, Manoj @ Vicky became unconscious. IO recorded my statement and also the statements of Kapil Dagar and Chandan. Thereafter, I alongwith IO reached at the spot and IO prepared site plan at my instance.
Same is Ex.PW5/A, signed by me at point A. Accused Bhagwan Sahai @ Chintu was arrested vide arrest memo Ex.PW5/B, signed by me at point A. His personal search was conducted vide memo Ex.PW5/C, signed by me at point A. I alongwith police also reached at the house of Sanjay, but the same was found locked at that time......" (148) He has been exhaustively crossexamined by the Ld. Defence Counsels wherein he has proved that he was using the mobile No. 9899535266 and also made a PCR call which fact is evident from the PCR St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 188 Form Ex.PW8/C reflecting the mobile No. of Anis Raj on the same. He has also stated that it was one Satish who had put Manoj @ Vicky in a rickshaw for taking him to the Police Station after which the accused continued to repeatedly beating the victim. This Satish, I may observe, is the younger brother of the accused Mohan Singh and has never been named in the earlier statement of the witness and has been named for the first time in Court.
(149) Coming next to the testimony of Kapil Dagar (PW6) the relevant portion of his testimony is as under:
"....... I reside at the above mentioned address along with my family and I am pursuing my MBA course. Manoj Kumar @ Vicky son of Ganesh Kumar Singh was my friend.
On 10.12.2010, at about 3.00 pm, I along with Manoj Kumar, Anis Raj and Chandan had gone to DDA Market, Hudson Line and when after taking tea, we were standing on the road, there suddenly accused Bhagwan Sahai @ Chintu, present in the court (correctly identified) and Sanjay Dhankad @ Nakli, today present in the court (correctly identified) came there and they both told Manoj Kumar @ Vicky, "Aaj tujhe nahi chhorenge, tu bahut dino se bach raha tha". Both the aforesaid accused were known to me through Manoj Kumar @ Vicky as he had said that they both are bad elements. First, accused Bhagwan Sahai @ Chintu gave beatings to Manoj with hands and Manoj was made to fall on the ground. Thereafter, accused Bhagwan Sahai @ Chintoo brought a danda from a nearby kiosk (Thia) of one press wala and started giving danda blows St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 189 aiming the head of Vicky and Vicky was trying to save his head by his both the hands and in this process, he sustained injuries on his both the hands. Meanwhile, Sanjay @ Nakli also brought a danda from the same place and started giving danda blows to Manoj @ Vicky. When anybody tried to intervene or to save Manoj, they both threatened him saying, "Jo beech me aaya, uska bhi yahi haal karenge" Manoj @ Vicky was raising alarm, "Chhor do chhor do, but both the accused gave merciless beatings to him. Meanwhile, accused Mohan Singh @ Bunti, present in the court today (correctly identified) came there and he also joined both the accused and started giving beatings to Vicky, who was lying on the road with kicks and was saying, "Aaj nahi chorenge ise" Thereafter, accused Mohan Singh @ Bunti picked a cemented flower pot (Gamla), which was kept there and hit the same on the head of Manoj @ Vicky, who at that time, was lying on the road. One Satish, who is the younger brother of accused Bhagwan Sahai @ Chintu also came there along with one rickshaw wala and they all including Satish lifted Manoj @ Vicky and thrown him in the said rickshaw and the beating by all of them including Satish continued. Accused persons while taking Manoj @ Vicky in a rickshaw, were saying, "Isne hamari sone ki chain tori hai, aur hum ise thane le ja rahe hai". Our friend Chandan Kumar informed the police. I along with Anis Raj went to PS Maurice Nagar to call the police. There, one police official, who was present at the gate of PS, told us that the place of incident is in the jurisdiction of PS Mukherjee Nagar. From there, I along with Anis Raj came back to the spot. We stopped in front of office of NDPL as PCR was about to come and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 190 location was not clear to the PCR. PCR arrived there.
Chandan was already there. Thereafter, we all reached at PS Mukherjee Nagar and at that time, accused Sanjay @ Nakli was also there. We pointed out to the police that he was one of the assailant, but nobody bothered. We came to know that Manoj @ Vicky had already been shifted to BJRM Hospital.
From PS Mukherjee Nagar, I along with Anis Raj, Chandan and some other friends, reached at BJRM Hospital. There, at the hospital, Manoj @ Vicky and Bhagwan Sahai @ Chintu, both were present. My statement was recorded by the police on 10.12.2010, at the hospital. Accused Bhagwan Sahai @ Chintu was arrested and his personal search was conducted.
On 11.12.2010, I again joined the investigation of the present case. On that day, on the call of IO, I reached at DDA Market, Hudson Lane, Delhi at about 11.15 am. I informed the police that accused Sanjay Dhankad @ Nakli is present at his residence i.e. House no. 94, Rajpura, Gur Mandi, Delhi. Thereafter, I along with police team reached at the house of accused Sanjay Dhankad at about 11.30 am. Accused Sanjay Dhankad was arrested and his personal search was conducted. IO recorded his disclosure statement and same is Ex.PW6/A having my signatures at point A. After the arrest of accused Sanjay, we reached at the house of Mohan Singh @ Bunti at about 1.30 pm at DTC Colony, there father of Mohan Singh @ Bunti namely Narender Kumar met us and he informed the police that Bunti is missing after the incident and he is unaware of his whereabouts. We informed the IO that no such incident of chain snatching took place. IO went with us to the spot and on verification, he found that no chain snatching was done by Manoj @ Vicky as he was with us at that time and it St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 191 was only a false allegations of accused....."
(150) He has also been crossexamined by the Ld. Defence Counsels at length wherein he has explained that it was Chandan who made the call to the police. He has also explained that the PCR did not reach the spot on which they themselves reached the Police Station. The witness has further explained that they accompanied SI Inderpal to the spot and he inquired if any incident of chain snatching had taken place but he was told by public persons that no such incident had taken place.
(151) Coming next to the testimony of Chandan Kumar (PW21), the relevant portion of his testimony is as under:
"..... I am perusing Eco (Maths) from Satyawati College. I am residing in Delhi at the above mentioned address since the year 2009.
On 10.12.2010 at about 3:00 PM I along with my friend Vicky, Kapil and Anis had gone to take tea at Saini Tea Stall, DDA Hudson Lane. While we all were taking out tea, I received a telephone call from my one friend on my mobile phone No. 9540000124 but name of that friend I am not recollecting today. While talking to my said friend over telephone, I went backside portion of the DDA Market. When I returned back to Saini Tea Stall, I saw that there was a verbal altercation tutu mainmain between Sanjay Dhankar and Vicky @ Manoj. I knew Sanjay Dhankar who is present in the court today (correctly identified by the witness) since he was residing in our locality. I noticed a scuffle between Sanjay Dhankar and Vicky @ Manoj. Accused Sanjay Dhankar was having danda in his hand and he started St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 192 giving beatings to Manoj Kumar @ Vicky who was my friend. Sanjay Dhankar was accompanied with two / three other more persons to whom I can identify by face. At this stage witness has correctly identified the accused Bhagwan Sahai and Mohan Singh present in the court today. Accused Mohan Singh assaulted on the person of Manoj Kumar with a pot (Gamla). Accused Bhagwan Sahai was also having a danda in his hand and was assaulting Manoj @ Vicky with danda. All the three accused persons are present in the court today were also associated with fourth person whose name I came to know later on as Satish. Thereafter I made a call at 100 number.
I could not took the option due to fear to save Manoj Kumar @ Vicky from the clutches of the accused persons as they were armed with the dandas and pot.
Thereafter received a responding call from PCR as they were not came to know the exact location of the place of incident and thereafter I went to behind the office of NDPL to receive the PCR officials. They interrogated me and I disclosed all the facts to them whatever I had witnessed. In the meantime Anis and Kapil Dagar came at the spot where I was present with the PCR officials. Thereafter 23 our friends incident reached at the place where I along with PCR official was standing.
Thereafter I explained the way to the spot of incident to the PCR officials and they proceeded to the place of incident where accused persons were giving beatings to Manoj and I proceeding on foot for the spot of incident. When I reached at the place of incident I noticed that accused persons were taking the injured St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 193 Manoj in a rickshaw while crying that Manoj @ Vicky had snatched the chain. Thereafter subsequently came to know that they took Manoj to the PS Mukherjee Nagar.
On the very same day at about 6.00/6.30PM I went to BJRM Hospital, Jahangir Puri where Manoj was found admitted and was in semiconscious condition and he was having a plaster on his both hands and he was crying with the pain of the injury and was saying "theek haitheek hai". Thereafter he (Manoj @ Vicky) became unconscious. Thereafter when police came in the hospital and they made formal inquiry from me. After some days I was called at the police station where my statement was recorded. Thereafter I came to know that Manoj Kumar was shifted to the Trauma Center, Civil Lines where he scummed....."
(152) He has also been crossexamined at length wherein he has stood his grounds and has explained that he knew the accused Sanjay Dhankar prior to the incident since he was living in the same locality but he was not known to the accused Mohan @ Bunty and Bhagwan Sahai @ Chintu before the incident and he came to know their names etc. after the incident.
(153) At the very outset I may observe that in so far as the witness Anis Raj and Kapil Dagar are concerned their presence at the spot cannot be doubted in view of the fact that in the FIR registered on the basis of the statement of the deceased their names have been specifically mentioned by the victim Manoj @ Vicky as those who were present along with him at the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 194 time of the incident and in so far as the witnesses Chandan and Anis Raj are concerned, they were the one's who made repeated PCR Calls which fact stands established from the PCR Forms Ex.PW8/A, Ex.PW8/B and Ex.PW8/C. Further, DD No. 25A Ex.PW3/A which was lodged at Police Station Mukherjee Nagar at 15:34 PM also reflects the mobile No. 9540000124 thereby proving that the presence of Chandan at the spot of incident who informed the PCR regarding the quarrel at Hudson Lane Complex, DDA Market, NDPL Office. Further, the subsequent DD No. 26 A which is Ex.PW3/B was lodged at 3:55 PM reflects that information was sent to Police Station Mukherjee Nagar to the effect that at Police Station Mukherjee Nagar a snatcher had been beaten by public persons and was bleeding which call was attended to by W/HC Parwati (PW9) who has proved that she met both the injured i.e. Manoj @ Vicky and Bhagwan Sahai outside the Mukherjee Nagar Police Station and Bhagwan Sahai claimed that Manoj was a chain snatcher and she shifted both of them to BJRM Hospital. This confirms the oral testimony of the friends of the deceased that the accused had publicly announced that the person whom they had beaten was a chain snatcher. The PCR Forms placed on record which are Ex.PW8/A to Ex.PW8/D show that despite the fact that at the first instance the information was sent to the PCR by Chandan from his mobile No. 9540000124 at 15:28:43 and by Anis Raj from his mobile No. 9899535266 at 15:34:09 the PCR Van did not reach the spot but instead St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 195 reached at the gate of Police Station Mujkherjee Nagar at 16:13:09 and the information transmitted by the PCR Van incharge to Control Room (Ex.PW8/D) is reproduced as under:
10/12/2010 16:13:09 Vicky wa Chintu ka jhagda. Dono injured hai. Lekar hospital jaa rahe hain. Snatcher wali koi baat nahin hai.
10/12/2010 16:45:15 both injuries has been handed over to the D/Constable Consciously in BJRM Hospital.
(154) The above wireless messages so transmitted by the PCR Van Incharge to the Control Room confirms the testimonies of the eye witnesses.
A combined reading of the testimonies of Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21), the following aspects stand established:
➢ That on 10.12.2010, at about 3.00 PM, Manoj Kumar @ Vicky along with Anis Raj, Kapil Dagar and Chandan, who were good friends reached at DDA Market, Hudson Lane to take tea.
➢ That Chandan received a call on his mobile phone and therefore he went towards the gate to receive the call in privacy whereas Anis Raj, Kapil Dagar and Manoj @ Vicky (victim) were still standing on the Road.
➢ That in the meantime accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu came there and started arguing with Manoj @ Vicky.
➢ That both Sanjay and Bhagwan Sahai then started giving beatings to St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 196 Manoj @ Vicky with fist and leg blows due to which Vicky fell down.
➢ That according to witness Anis Raj, both the accused Sanjay and Bhagwan Sahai exhorted each other and while Anis Raj has deposed that they exhorted by saying "Bahut Bar Pehle Bhi Tum Chhoot Chuke Ho, Aaj Tumhein Nahin Chhodenge"; according to witness Kapil Dagar, both the accused exhorted each other saying "Aaj tujhe nahi chhorenge, tu bahut dino se bach raha tha" and according to Chandan Kumar there was a verbal altercation (tutu, mainmain) between the victim Manoj and the accused Sanjay Dhankad and Bhagwan Singh.
➢ That both the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu then brought the Dandas from the nearby stall (Thiya) of a Washerman (Dhobi) and started giving Danda blows on the person of Manoj @ Vicky.
➢ That Manoj tried to save his head from the blows of Danda given by both the accused persons with his both hands and also requested them not to hit him.
➢ That Vicky was trying to save his head by his both the hands and in this process, he sustained injuries on his both the hands.
➢ That Manoj @ Vicky was raising an alarm, "Chhor do chhor do", but both the accused gave merciless beatings to him and in the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 197 meanwhile, accused Mohan Singh @ Bunti, came there and also joined both the accused and started giving beatings to Vicky, who was lying on the road with kicks and was saying,"Aaj nahi chorenge ise" and also give him danda blows.
➢ That the accused Mohan Singh @ Bunty then picked up a big flower pot made of cement, which was lying outside the house situated on the corner of the street and smashed it on the head of Manoj @ Vicky, who was still lying on the road while trying to save himself after which Manoj @ Vicky became virtually senseless.
➢ That the pot was broken into pieces and even after hitting the pot on the head of Manoj, all the three accused continued to give beatings to Manoj.
➢ That in the meanwhile Chandan who had initially gone on one side of the road to attend to a telephone call had also reached the spot of the incident and tried to save Manoj @ Vicky along with his friends Anis Raj and Kapil Dagar along with other public persons who had gathered there but all of them by the accused who also showed them the dandas.
➢ That on seeing this helpless situation Anis Raj and Chandan immediately made calls to 100 number from their mobile No. 9899535266 & 9540000124 to seek police assistance.
➢ That during the incident one old shopkeeper, who tried to intervene to save Manoj and Manoj @ Vicky who was lying on the road became St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 198 senseless, was also slapped by the accused.
➢ That the accused Sanjay, Bhagwan Sahai and Mohan Singh then in order to save themselves removed Manoj @ Vicky from the spot by putting him in a rickshaw and falsely announcing to every one present at the spot that Manoj @ Vicky was a chain snatcher who had snatched their gold chain and they were taking him to the Police Station.
➢ That the above incident was also witnessed by a large number of public persons including Dev Raj, Rajiv Saini, B.S. Mehta and Rajender Singh who knew that there was no such incident as chain snatching but were afraid to intervene on account of the criminally aggressive behaviour exhibited by the accused.
➢ That since PCR was taking time to reach the spot, hence Anis Raj along with Kapil Dagar reached at Police Station Maurice Nagar to inform the police but the officials of Police Station Maurice Nagar told them that the place of incident did not fall within their local jurisdiction and asked them to go to Police Station Mukherjee Nagar.
➢ That Anis Raj, Kapil Dagar and Chandan then went near the NDPL Office where the PCR Van had come and could not find the spot.
There they informed the PCR officials of the incident and also informed their other friends on phone and asked them to reach Police Station Mukherjee Nagar.
➢ That in the meanwhile the accused Sanjay Dhankad, Bhagwan Sahai St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 199 and Mohan Singh the seriously injured Manoj @ Vicky to Police Station Mukherjee Nagar and at the gate of the Police Station they met W/HC Parvati from PCR where they claimed that Manoj @ Vicky was a chain snatcher but W/HC Parvati seeing Manoj @ Vicky in a serious condition and Bhagwan Sahai also injured, shifted both of them to BJRM Hospital.
➢ That after the friends of Manoj @ Vicky reached Police Station Mukherjee Nagar they cleared the air which had been created by the accused that Manoj @ Vicky was a chain snatcher and the PCR officials came to know that the it was not a case of chain snatching but a fight between Chintu and Vicky (as mentioned in the WT message reflected on the PCR form).
➢ That when Manoj @ Vicky was admitted in BJRM Hospital he was still conscious and gave the history to doctors as of "Assault".
➢ That the family of Manoj @ Vicky came to the hospital and he informed his brother in law/ Jija Rajesh Patel that he had been beaten by accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh.
➢ That SI Inder Pal came to the Hospital and recorded the statement of Manoj @ Vicky on which he obtained his thumb impressions on the basis of which the FIR was registered under Section 325 Indian Penal code at around 8:05 PM on the same day.
➢ That on 11.12.2010 injured Manoj was shifted to Sushruta Trauma Center.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 200
➢ That on 18.12.2010 at 1:10 PM Manoj @ Vicky expired when there was a huge public outcry and protest over the inaction of local police and for failure of act against culprits which was later covered by various news channels.
➢ That on seeing the news of the death of Manoj @ Vicky on various channels, the eye witnesses to the incident Dev Raj and Rajiv Saini came forward and informed the police of the incident when the senior officers of the ACP and DCP stepped in on account of public pressure.
(155) It is evident from the testimonies of the friends of the deceased that when the deceased was being taken away he had become virtually unconscious but the hospital record of the BJRM Hospital shows that when Manoj @ Vicky was admitted in BJRM Hospital at 5:10 PM he was conscious and oriented and hence under the given circumstances the testimony of Rajesh Patel (PW15) who is the brother in law/ Jija of the deceased also becomes relevant. He has stated that when he visited Manoj @ Vicky at BJRM Hospital on the same day, Manoj had informed him that it was Sanjay Dhankad, Bhagwan Sahai and Mohan Singh who had given beatings to him. The relevant portion of his testimony is as under:
"........ I am doing a private service. Deceased Manoj Kumar @ Vicky was my younger brother in law (sala). Manoj Kumar and his family members were residing at house No. 248, Rajpura, Gurmandi. Manoj Kumar was having friendship with Anis Raj, Kapil Daggar and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 201 Chandan. I do not know other friendship and enimity of Manoj Kumar. Bhagwan Sahai, Sanjay and Mohan used to harass deceased Manoj Kumar @ Vicky and demanded money from him.
On 10.12.2010 at about 3 PM Chandan, Anis and Kapil Dagar informed us that Bhagwan Sahai, Sanjay and Mohan gave beatings to deceased Manoj @ Vicky at DDA market and he was shifted to BJRM Hospital. I also went to BJRM hospital and found the Manoj seriously injured in BJRM Hospital and Manoj informed me that Bhagwan Sahai, Mohan and Sanjay gave beatings to him mercelessly. I found many injuries on the body of Manoj. Manoj was serious, therefore he was shifted to Trauma center, Civil Lines for medical treatment. He was admitted there in the ICU for about seven days and on 18.12.2010 he was declared dead by the doctors. I identified the dead body of Manoj at the mortuary of BJRM hospital vide Ex.PW15/A bearing my signatures at point A and after postmortem dead body was handed over to us vide already Ex.PW14/B bearing my signatures at point B. I can identify accused Sanjay Dhankad, Mohan and Bhagwan Sahai, who are present in the court today (correctly identified by the witness)...."
(156) Hence, in view of the medical history given, the fact that the deceased was in a position to speak cannot be doubted. I may observe that in so far as whatever had been stated by the deceased to his brother in law / Jija is in the nature of Dying Declaration since it confirms the cause of death and the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 202 statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question (as per the provisions of Section 32 of Evidence Act). In the above statement which Manoj @ Vicky gave to his brother in law Rajesh Patel after he was admitted to the hospital, he has specifically named the accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh as those who had given him the beatings mercilessly. Independent confirmation and corroboration is forthcoming from the testimonies of Anis Raj, Kapil Dagar and Chandan Kumar the friends of the deceased who were present at the spot and are eye witnesses to the incident and from the testimonies of independent eye witnesses i.e. Dev Raj and Rajiv Saini as regards the identity of the accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh and as regards the role attributed to each one of them. I find the eye witnesses Anish Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21) who are the friends of the deceased and have corroborated each other on material particulars regarding the incident, identity of the assailants and the role attributed to each one of them, truthful and trustworthy not only because their presence at the spot stands established from the PCR Forms as they were the one's who had made repeated PCR calls and thereafter rushed to the Police Station but also because their presence stands confirmed by other independent witnesses who had witnessed the incident i.e. Rajeev Saini.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 203 (157) Coming now to the testimony of the other shopkeepers of the area i.e. B.S. Mehta (PW7) and Rajender Singh (PW27) have confirmed the incident of quarrel but they have not supported their earlier versions regarding the identification of the assailants. In so far as Raju Mathur (PW20) is concerned he is the presswala/ Dhobi from whose Thiya the accused Sanjay dhankad and Bhagwan Sahai had taken the dandas. He was not present at the spot at the time of the incident but has confirmed the incident of quarrel as told to him by other shopkeepers of the area. It is writ large that these witnesses B.S. Mehta and Rajender Singh who are shopkeepers in the area have proved the incident but have turned hostile on the identity of the accused persons. It is borne out from the evidence on record that the police inaction in apprehending the accused was widely covered by Media a fact which has not been disputed nor controverted in the crossexamination by the accused. There was huge pressure on the police to act against the accused who after committing the incident in broad day light within full public view were not proceeded against and this was even telecasted by the news channel and only after this pressure the senior officers stepped in and made inquiries in the area when the statements of the local shopkeepers were recorded. The testimonies of B.S. Mehta and Rajender Singh cannot be doubted. They are running their shops in the area and their presence is natural and probable. They have proved the entire incident and the sequence how the events unfolded and their testimonies find due corroboration from the oral testimonies of other witnesses. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 204 (158) The Ld. Counsel appearing on behalf of the accused Mohan Singh has vehemently argued that the accused Mohan Singh has been falsely implicated at a later stage and that the was not even named by the victim at the first instance. In this regard I may observe that in the first statement to the police by the deceased, the accused have been specifically named, particularly Sanjay and Bhagwan Sahai. In the rukka Ex.PW22/B prepared on the statement of the deceased; if taken to be correct, there is an insertion made in the last two lines and name of Bunty i.e. accused Mohan Singh has been changed to Chintu by scrapping of the initial name of Bunty. As already discussed separately this interpolation is apparent to the naked eye when the last two lines of the original rukka are carefully read. This is only possible under circumstances when Mohan Singh @ Bunty was initially named by the the victim/ injured Manoj @ Bunty and then an attempt was made to save him (i.e. Mohan Singh @ Bunty) or else there is no reason why the name of Bunty (which has been erased) would have at all figured in the said statement of deceased Manoj @ Vicky on the basis of which the FIR was registered.
(159) It is evident that the attempt of the police right from the initial stages was to save Mohan Singh @ Bunty which is reflected from the interpolations made in the last line of the statement of Manoj @ Vicky Ex.PW22/A wherein 'Bunty' have apparently been scraped and overwritten as 'Chintu' confirms the attempt of SI Inder Pal, the person who wrote this statement in his own handwriting, to save Mohan Singh @ Bunty or else St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 205 there was no other way the Investigating Officer SI Inder Pal would have even known about the name of the third assailant (i.e. Bunty). The manner in which the last two lines have been squeezed shows that these lines were added after it was pointed out by the victim that the name of Bunty was missing and hence to satisfy the victim the name of Bunty was first added along with the name of Sanjay but before the registration of the FIR 'Bunty' was changed to 'Chintu' and benefit of the same cannot be given to the accused Mohan Singh @ Bunty particularly in view of the fact that he had been identified not only by the friends of the deceased but also by the independent witnesses Dev Raj and Rajeev Saini.
(160) Hence, in view of the aforesaid I hereby hold the testimonies of witnesses Dev Raj (PW4), Anis Raj (PW5), Kapil Dagar (PW6), Rajeev Saini (PW19) and Chandan Kumar (PW21) to be reliable, truthful and trustworthy. They all have corroborated each other on the point of identity of the accused persons, the manner in which the sequence of events unfolded and the specific roles attributed to the accused persons. The Ocular Evidence establishes that the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu were the boys who first gave fist and leg blows and then gave danda blows to the victim Manoj @ Vicky and it was the accused Mohan Singh @ Bunty who first gave danda blows to the victim and then picked up a flower pot lying outside a house and smashed it on the head of the victim, thereby connecting them with the alleged offence. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 206 PCR Forms corroborate the testimony of eye witnesses:
(161) The case of the prosecution is that pursuant to the incident a large number PCR calls were made but the PCR officials were finding it difficult to reach the spot. It is evident from the testimonies of the friends of the victim i.e. Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21) that it was Chandan Kumar who made repeated calls at 100 number from his mobile phone bearing No. 9540000124 and also Anis Raj (PW5) who made 100 number call from his mobile No. 9899535266. The PCR Forms placed on record which are Ex.PW8/A to Ex.PW8/D confirm this fact. For the sake of convenience the various PCR Calls and the information transmitted by the PCR officials are put in a tabulated form as under:
Sr. Time No. from Information given Information
No. which call transmitted by the PCR
was made
1. 15:28:43 9540000124 Hudson Lane Complex, DDA Moka par koi nahin mil
(Mobile No. Market NDPl Office ke Paas raha hai. Call is U/T
used by Mukherjee Nagar Jyada
Chandan) Jhagra
2. 15:28:43 9540000124 DDA Market Complex NDPL Moka par koi nahin mil
(Mobile No. Office ke back side Mukherjee raha hai. Call is U/T
used by Nagar. Jyada quarrel +
Chandan) injured
3. 15:34:09 9899535266 NDPL Office ke peeche Moka par koi nahin mil (Mobile No. Hudson Market, Kingsway raha hai. Call is U/T used by Anis Camp Raj) St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 207
4. 15:48:14 27231132 PS Mukherjee Nagar ke main 16:13:09 Vicky wa gate par 1 snatcher of logo ne Chintu ka jhagra dono bahut pit rakha hai, bleeding injured hai. Lekar bahut jyada ho rahi hai hospital ja rahe hain.
Snatcher wali koi baat nahi hai 16:45:15 Both injured has been handed over to the Duty Constable consciously in BJRM Hospital (162) It is evident from the above that the first two calls were made to the PCR by Chandan (PW21) and despite the fact that the first call was made at 15:28:43 the PCR reached the spot at 16:13:09. An explanation is forthcoming with regard to this delay in the testimonies of the friends of the deceased that the PCR could not find the spot of incident and it was at 16:13:09 when the PCR reached the spot they confirmed that it was not a case of chain snatching but in fact a case of quarrel between Vicky (victim Manoj) and Chintu (accused Bhagwan Sahai). Further, the PCR Van Incharge W/HC Parvati (PW9) has proved that the call had been received that a chain snatcher had been caught and when she reached outside the Police Station Mukherjee Nagar, Bhagwan Sahai and Manoj @ Vicky met her there and she immediately rushed both of them to BJRM Hospital. This establishes the testimony of the eye witnesses to the effect that while the accused persons were taking away the victim Manoj they publicly announced that the boy to whom they had given beatings had snatched their St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 208 chain. The PCR Forms on record Ex.PW8/A and Ex.PW8/C also establishes the presence of the witnesses Anis Raj who was using the mobile No. 9899535266 and the witness Chandan Kumar (PW21) who was using mobile No. 9540000124, at the spot of the incident. (163) This being the background, I hereby hold that the PCR Forms placed on record confirms the presence of the eye witnesses Anis Raj and Chandan Kumar at the spot of the incident. The presence of accused Bhagwan Sahai also stands established since he was the boy who was found outside the Police Station Mukherjee Nagar along with the injured Manoj @ Vicky and had made a call regarding chain snatching and was shifted to BJRM Hospital by W/HC Parvati along with Manoj @ Vicky. The ploy it is writ large was to mislead and divert investigations and create a defence of the victim Manoj @ Vicky being on the wrong side of law. Apprehension and arrest of the accused:
(164) In so far as the apprehension and arrest of the accused persons is concerned, the same has been duly proved by the Investigating Officer and various other police witnesses. First of all the accused Bhagwan Sahai was arrested by SI Inderpal from BJRM Hospital itself after he had received treatment for his injuries and thereafter on the same day the accused Sanjay Dhankad was arrested. However, both the accused were released on bail since initially the provisions invoked were of Section 325 IPC which are bailable in nature. After the death of victim Manoj @ Vicky the provisions St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 209 of Section 302 IPC were invoked and the investigations were transferred to Inspector Rajesh Dahiya (PW24). He has proved that 21.12.2010 he alongwith SI Inder Pal (PW26) and SI Ranbir Singh (PW12) and accused Sanjay Dhankad and Bhagwan Sahai were arrested at the instance of SI Inder Pal from DTC Colony Bus stand near Gurudwara Nanak Pyao. On 06.04.2011 accused Mohan Singh surrendered before the Ld. MM after which he was arrested in this case by Inspector Rajesh Dahiya. I may observe that no recovery has been effected pursuant to the disclosure statements of the accused persons. The aspect of arrest has not been disputed by the accused persons but according to the accused they themselves surrendered before the Investigating Officer. Be that as the case may be, the subsequent arrest of the accused is not disputed and the same stands established.
Whether the provisions of Section 302 IPC or Section 304 IPC would apply:
(165) The case of the prosecution is that all the three accused namely Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty had the intention and knowledge, as contemplated under Section 299 Indian Penal Code, to commit the murder of Manoj @ Vicky and in pursuant to the same they caused injuries to the victim which were sufficient to cause death in ordinary course of nature.
(166) On the other hand the Ld. Defence Counsel has vehemently argued that the present case does not fall within the purview of Section 299 St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 210 Indian Penal Code since there was no intention on the part of the accused persons to commit the murder of Manoj @ Vicky. It is argued that there is no opinion in the postmortem report of even otherwise that the injuries allegedly sustained by the deceased on his arms and legs were sufficient to cause death or were life threatening.
(167) I have considered the submissions made before me. I may observe that as per the provisions of Section 300 Indian Penal Code culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid and this is punishable under Section 302 Indian Penal Code. There are five exceptions provided to the above. Firstly 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 gave the provocation or causes the death of any other person by mistake or accident.
I may observe that this exception is also subject to the proviso that the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 211 provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person; the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant; the provocation is not given by anything done in the lawful exercise of the right of private defence; the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Secondly Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. Thirdly Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without illwill towards the person whose death is caused. Fourthly Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner and it is immaterial in such cases which party offers the provocation or commits the first assault. Lastly Culpable homicide is not murder when the person whose death is caused, St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 212 being above the age of eighteen years, suffers death or takes the risk of death with his own consent. [Reference in this regard may be made to the case of Kundaswamy Vs. State of Tamil Nadu reported in 2008 (11) SCC 97].
(168) The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300 Indian Penal Code. (Ref.: Daya Nand Vs. State of Haryana reported in AIR 2008 SC 1823).
(169) Whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to "culpable homicide" as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 213 stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four Clauses of the definition of 'murder' contained in Section 300. If the answer to this question is in the negative the offence would be 'culpable homicide not amounting to murder', punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third Clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the Exceptions enumerated is Section 300, the offence would still be 'culpable homicide not amounting to murder', punishable under the First Part of Section 304, Indian Penal Code. Note:
All murders are culpable homicide but not viceaversa. (Ref.: State of A.P. Vs. Rayavarapu Punnayya reported in AIR 1977 SC 45).
(170) It is also submitted by the Ld. Defence Counsel that the provisions of Section 302 IPC has no application as the assault was made during the course of sudden quarrel and Exception 4 of Section 300 IPC applies whereas the plea of the Ld. Addl. Public Prosecutor is that the manner in which repeated injuries were caused to the victim Manoj @ Vicky is indicative of the intent of the accused persons.
(171) For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 214 exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. While in the case of Exception 1 there is total deprivation of selfcontrol, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A sudden fight implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight;St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 215
(c) without the offender having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage.
(172) Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. [Ref.: Golla Yelugu Govindu Vs. State of Andhra Pradesh reported in 16 (2008) SCC 769] St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 216 (173) To avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of selfcontrol but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by courts that a fight is not perse palliating circumstance and only unpre meditated fight is such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception. [Ref.: Sukhbir Singh Vs. State of Haryana reported in 2000 (3) SCC 327: AIR 2002 SC 1168 followed by our own High Court in the case of Manoj Kumar & Ors. Vs. The State in Criminal Appeal No. 638/2009 decided on 27.3.2012]. (174) Applying the settled principles of law to the facts of the present case, it stands established from the testimonies of the various eye witnesses that:
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 217
➢ While the deceased Manoj @ Vicky was having tea with his friends Anis Raj, Kapil Dagar and Chandan Kumar, the accused Sanjay Dhankar, Bhagwan Sahai came to the spot and without any instigation started giving beatings to Manoj @ Vicky, mercilessly.
➢ First they gave leg and fist blows and then with dandas which they took from the adjoining shop.
➢ The beating and blows given were repetitive and forceful.
➢ While the accused Mohan Singh joined Sanjay and Bhagwan Sahai in hitting Manoj with dandas and after Manoj @ Vicky fell on the ground he picked up a flower pot lying outside a house and smashed it on the head of the deceased/ victim resulting into multiple fractures on his head.
➢ While public persons tried to intervene in order to save the deceased, they were stopped by the accused who issued threats to them and showed them the dandas as a result of which nobody dared to intervene but instead chose to call 100 Number.
➢ In order to justify their alleged act and perhaps as a ploy to fabricate a defence in order to correct their illegal act and remove themselves from the area and to preempt any complaint by injured and his friends at the first instance, the accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh falsely announced to all that the victim was a chain snatcher who had removed their chain and they were taking him to Police Station.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 218
➢ The accused Sanjay Dhankar, Bhagwan Sahai and Mohan Singh then put the injured in a rickshaw and delayed his treatment by first taking him to Police Station rather than the Hospital as a result of which the victim had suffered excessive bleeding (as evident from the PCR call made from land line No. 27231132 at 15:48:14 showing that the public persons had beaten one chain snatcher who was excessively bleeding).
(175) As already discussed separately the intent so attributed to the accused persons is established. The blatant attempt of accused was to show the victim Manoj @ Vicky with whom they were into a dispute even previously, as the first aggressor and wrong doer and preempt immediate legal action against themselves despite the fact that it was the accused who without any reasonable excuse were the one's who mercilessly and brutally gave beatings to the victim Manoj. The medical evidence on record establishes that the death was due to shock and craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force diverted upon head. Multiple injuries have been inflicted on the body of the deceased including his vital organs which are singularly and accumulative sufficient to cause death in ordinary course of nature. The fact that the accused persons had shown the victim Manoj to be a snatcher, establishes their confidence and premeditation and intent to create a defence in their favour.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 219
(176) Further, the fact that the accused Bhagwan Sahai had also received some injuries not only confirms the presence of Bhagwan Sahai at the spot of incident but also confirms that even the victim must have tried to defend himself which only enraged the accused further. The manner in which the public persons were threatened and prevented from reaching out to help the deceased and cemented flower pot was smashed on his head is reflective of the intent of the accused and establishes the knowledge that the above act would cause the death of Manoj @ Vicky in the ordinary course of nature.
(177) This being the background I hereby hold that the present case does not fall within any of the exceptions so provided and the prosecution has been able to prove and establish the necessary intent and knowledge (as contemplated under Section 299 Indian Penal Code), of the accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh to commit the murder of Manoj @ Vicky.
Contradictions and Discrepancies/ Lapses during the Investigations:
(178) Ld. Counsels appearing on behalf of the accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh have raised two fold arguments. First is relating to the various contradictions and discrepancies in the testimonies of the various witnesses and Second relates to the lapses committed by the Investigating Officer not only with regard to the procedure adopted by him at the time of the investigations but also with St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 220 regard to the collection of evidence and conduct of essential investigations.
(179) Coming first to the aspect of the various contradictions and discrepancies, the Ld. Defence Counsels have vehemently argued that the friends of the deceased i.e. Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21) have given a version contradictory to the version given by the deceased in his statement Ex.PW22/A wherein he had not named the accused Mohan Singh @ Bunty. It is further submitted that they have contradicted the version of the complainant (since deceased) in respect of the nature of injuries. It is also argued that the statements of witnesses Dev Raj (PW4) and Rajiv Saini (PW19) were recorded after a delay of 26 days. The Ld. Defence Counsels have also highlighted the various contradictions in the testimonies of the eye witnesses as regards the exhortation given by the accused while assaulting the victim. The Defence Counsels have further pointed out the contradictions in the testimonies of the various witnesses of the police as regards the time they first reached the hospital and recorded the statement of the injured and also as regards the manner, time, place of arrest of the accused Sanjay and Bhagwan Sahai after the death of the victim, the recording of their disclosure statements etc. (180) Coming next to the aspect of lapses committed by the Investigating Officer, it is argued by the Ld. Defence Counsels that as per the case of the prosecution at the time of the incident a large number of public persons had collected at the spot and the incident had been witnessed not only by the friends of the victim but also by the persons who had their St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 221 shops in the vicinity who were present at the spot and by others. It is pointed out that soon after the incident no statement of any independent public witness had been recorded by the Investigating Officer. It is also pointed out that despite the allegations that the accused Mohan Singh @ Bunty had picked up a flower pot kept in front of the house situated at the corner corner of the street and smashed it on the head of the victim, neither any Crime Team was called to take photographs of the Scene of Crime nor any exhibits in the form of blood stained earth, pieces of broken flower pot/ Gamla etc. were lifted. It is further argued that it was only to assuage public anger since after the death of the victim Manoj @ Vicky there was an outrage in the area and news regarding his death had been shown in various channels and senior police officers of the rank of ACP and DCP were questioned about same, the accused persons who were innocent were hurriedly arrested by invoking aggravated provisions under Section 302 IPC. It is argued by the Ld. Defence Counsels that the Investigating Officer as a matter of coverup had planted the eye witnesses only to create evidence against the accused persons and to connect them with the offence and it is for this reason that the oral testimonies of the eye witnesses does not find confirmation from any forensic, circumstantial, electronic and other evidence.
(181) I have considered the rival contentions. In so far as the various discrepancies and contradictions in the testimonies of the witnesses are concerned, I may observe that in the case of State of H.P. Vs. Lekhraj and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 222 another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: "....... In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial...." (182) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...."
(183) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 223 be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(184) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non discrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (185) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. The observations made in the case of Tehsildar Singh Vs. State of UP reported in AIR 1959 SC 1012 were later on reaffirmed by the Hon'ble Supreme Court in the cases of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 224 Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 225
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 226 or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters.
Again it depends on the timesense of individuals which varies from person to person.
(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 227 the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness. (186) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690).
(187) In so far as the aspect of Lapses committed by the Investigating Officer and Faulty Investigations are concerned, I may observe that considering the aspect of faulty investigations the Hon'ble Apex Court has in the case of State of U. P. Vs. Jagdeo & Others. reported in (2003) 1 Supreme Court Cases 456, observed that:
"...... Mere faulty investigations cannot be a ground for acquittal of the accused. For the fault of the prosecution the perpetrators of a ghastly crime cannot be allowed to go scotfree. The testimony of eyewitnesses in the present case, completely proved the prosecution case - Criminal Procedure Code, 1973, Sec. 159, 161 and
164........"
(188) It has been further observed that :
"........Coming to the aspect of the investigation being allegedly faulty, we would like to say that we do not agree with the view taken by the High Court. We would rather like to say that assuming the investigation was St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 228 faulty, for that reason alone the accused persons cannot be let off or acquitted. For the fault of the prosecution, the perpetrators of such a ghastly crime cannot be allowed to go scotfree. All the accused persons were armed with deadly weapons and they attacked the members of the victims' family who were totally unarmed and were sleeping at night in the open. The High Court has expressed a doubt about the FIR being lodged at the time alleged by the prosecution and the manner in which it is so stated by the prosecution. The question however is : is it sufficient to acquit all the persons ? The trial court had discussed all the elements leading to the brutal murder in this case and found them against the accused persons. Unfortunately, the High Court remained on the periphery and never attempted to grapple with the substance of the evidence on record. This peripheral approach of the High Court led to the impugned judgment of acquittal being passed. In presence of such a strong evidence on record implicating the accused persons, things like alleged improper recording of time of lodging of FIR are not sufficient to dislodge the verdict of convictions passed by the Sessions Court. In our considered view the evidence of eye witnesses in the present case completely proves the prosecution case. The doubt thrown by the High Court on the presence of the eye witnesses at the time of occurrence is totally unacceptable. The impugned judgment of the High Court whereby all the accused persons have been acquitted is hereby set aside. .....
(189) A similar view was again expressed by the Hon'ble Supreme court in the case of Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436.St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 229
(190) In the case of Ram Bali v. State of Uttar Pradesh reported in (2004) 10 SCC 598, the judgment in Karnel Singh v. State of M.P. reported in (1995) 5 SCC 518 was reiterated and the Hon'ble Apex Court observed that:
"......in case of defective investigation the court has to be circumspect while evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigation officer if the investigation is designedly defective....."
(191) It is writ large from the aforesaid that with the passage of time, the law also developed and the dictum of the Court emphasized that in a criminal case, the fate of proceedings cannot always be left entirely in the hands of the parties. Crime is a public wrong, in breach and violation of public rights and duties, which affects the community as a whole and is harmful to the society in general.
(192) The Hon'ble Apex Court (Hon'ble Mr. Justice Swatantra Kumar) in the case of Dayal Singh & Ors. vs State Of Uttaranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 reaffirmed the above principle while placing its reliance on the case of National Human Rights Commission Vs. State of Gujarat reported in (2009) 6 SCC 767 wherein it was observed that:
"......The concept of fair trial entails familiar triangulation of interests of the accused, the victim and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 230 the society and it is the community that acts through the State and prosecuting agencies. Interest of society is not to be treated completely with disdain and as persona non grata. The courts have always been considered to have an overriding duty to maintain public confidence in the administration of Justice often referred to as the duty to vindicate and uphold the majesty of the law. Due administration of justice has always been viewed as a continuous process, not confined to determination of the particular case, protecting its ability to function as a court of law in the future as in the case before it. If a criminal court is to be an effective instrument in dispensing justice, the Presiding Judge must cease to be a spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion, to find out the truth, and administer justice with fairness and impartiality both to the parties and to the community it serves. The courts administering criminal justice cannot turn a blind eye to vexatious or oppressive conduct that has occurred in relation to proceedings, even if a fair trial is still possible, except at the risk of undermining the fair name and standing of the judges as impartial and independent adjudicators...".
(193) Reliance was also placed on the case of State of Karnataka Vs. K. Yarappa Reddy reported in 2000 SCC (Crl.) 61 wherein the Hon'ble Apex Court occasioned to consider the similar question of defective investigation as to whether any manipulation in the station house diary by the Investigating Officer could be put against the prosecution case and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 231 observed in Paragraph 19 that:
"......... But can the above finding (that the station house diary is not genuine) have any inevitable bearing on the other evidence in this case? If the other evidence, on scrutiny, is found credible and acceptable, should the Court be influenced by the machinations demonstrated by the Investigating Officer in conducting investigation or in preparing the records so unscrupulously? It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the Court in the case cannot be allowed to depend solely on the probity of investigation. It is well nigh settled that even if the investigation is illegal or even suspicious the rest of the evidence must be scrutinised independently of the impact of it. Otherwise the criminal trial will plummet to the level of the investigating officers ruling the roost. The court must have predominance and preeminence in criminal trials over the action taken by the investigation officers. Criminal Justice should not be made a casualty for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit the investigating officer's suspicious role in the case...."
(194) In the case of Dayal Singh Vs. State of Uttranchal (Supra) it was observed by Hon'ble Mr. Justice Swatantra Kumar that where our criminal justice system provides safeguards of fair trial and innocent till proven guilty to an accused, there it also contemplates that a criminal trial is meant for doing justice to all, the accused, the society and a fair chance to prove to the prosecution. Then alone can law and order be maintained. The St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 232 Courts do not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the learned Presiding Judge is expected to work objectively and in a correct perspective. Where the prosecution attempts to misdirect the trial on the basis of a perfunctory or designedly defective investigation, there the Court is to be deeply cautious and ensure that despite such an attempt, the determinative process is not subserved. For truly attaining this object of a fair trial, the Court should leave no stone unturned to do justice and protect the interest of the society as well.
(195) Applying the settled principles of law to the facts of the present case, coming first to the aspect of discrepancies and contradictions in the testimonies of witnesses. I may observe that in so far as the friends of the deceased i.e. Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21) are concerned they are the material eye witnesses who were present at the spot. They have seen their fast friend in an injured condition and were naturally in a state of shock. I may mention that the powers of observation differ from person to person and what one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another. This explains the contradictions in the testimonies of Anis Raj (PW5), Kapil Dagar (PW6) and Chandan Kumar (PW21). They were so overtaken by the sudden events which they could never have anticipated, that it is not expected of them to St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 233 have remembered the exact details of the spot or of the sequence of events. All the witnesses have explained that since the accused persons had threatened them by showing the dandas, therefore they did not intervene. Under the similar circumstances, it is difficult to expect their mental faculties to be attuned to absorb minute details. Given their mental conditions and the piercing and lengthy crossexamination made by Ld. Defence counsels and the Court atmosphere the possibility of the witnesses getting mixedup with facts, get confused regarding sequence of events out of nervousness and anxiety cannot be ruled out. Their testimonies cannot be thrown out merely because there were some minor discrepancies more so when their testimonies find due corroboration from the testimonies of independent eye witnesses Dev Raj (PW4) and Rajeev Saini (PW19). (196) In so far as the aspect of delay of 26 days in recording the statements of Dev Raj and Rajeev Saini is concerned, a valid explanation is forthcoming from the testimonies of these two witnesses. They have explained that they came to know about the death of the injured through News Channels and it was only thereafter that their statements were recorded by the Investigating Officer. They are not persons who were previously known to any of the parties and had never been interrogated by local police. It was only after the lackadaisical approach of the local police and their failure to act against the accused was exposed in the public by Media and there was an outcry that officers of the rank of ACP sprung into action and went to the spot of the incident and questioned the persons St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 234 residing in the area and having their business in the area and those who were regular visitors in the market, that Dev Raj and Rajeev Saini came forward and told them what they had seen. For this lapse of local police who was through and through out to help the accused as emerged from the evidence which has come on record, the benefit of the same cannot be given to the accused. Rather, the concerned officers who were responsible for the same particularly the first Investigating Officer SI Inder Pal and the then SI Rajesh Dahiya have to be made accountable departmentally and legally and made to answer for the same. This delay in recording the statement of Dev Raj and Rajeev Saini of 26 days cannot be fatal to the case of the prosecution.
(197) Further, in so far as the contradictions in the testimonies of the various police witnesses are concerned with regard to the timings, presence of a particular police official at a particular time etc. I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation including going of the police officials to the house of the accused etc. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 235 the witnesses of the investigation (Ref. Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436). This being the background, I hereby hold that the contradictions and discrepancies so pointed out by the Ld. Defence Counsels would not be fatal to the prosecution case.
(198) Coming next to the aspect of lapses committed by the Investigating Officer and the argument of the Ld. Defence Counsels that the investigations in the present case were not upto the mark from the very beginning and the Investigating Officer had not conducted the investigations in a fair manner, benefit of which should be given to the accused persons, which has been duly rebutted by the Ld. Addl. PP for the State saying that merely because on account of carelessness or negligence or overzealousness the Investigating Officer, shall be no ground to discard the other evidence which has come on record and benefit of the same should not be given to the accused, I may observe that the it is the duty of the Court that the guilty should not escape and in case there is a ring around the prosecution case, the same cannot be rejected. The prosecution is not required to meet each and every hypothesis put forward by the accused. Once the evidence on record establishes the guilt of the accused beyond reasonable doubt, there is no reason why the benefit of the wrongs committed by the Investigating Officer should go to the accused.
(199) I may observe that the role of the initial Investigating Officer SI Inder Pal has been most dubious and his conduct suspect. The St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 236 investigations conducted by him right from day one were seriously lacking apparently directed to save one of the accused i.e. Mohan Singh @ Bunty. Firstly the alleged statement of the victim which is Ex.PW22/A was recorded without due attestation by the doctor concerned who had given the fitness of Manoj @ Vicky. Further, no certificate has been obtained from the doctor that Manoj @ Vicky was not in a position to sign his statement and hence his thumb impression was obtained. Secondly, there is an over writing in the said statement where on the second last line the words 'Bunty' (i.e. name of Mohan Singh) has been scrapped and the words 'Chintu' (i.e. name of Bhagwan Sahai) were interpolated. In fact the entire line "....Uprokt Chintu va Sanjay ne milkar bevajah mujhe marapita, unke khilaf kanooni karyawahi ki jaye..." appears to have been inserted later. If the victim Manoj @ Vicky had not given the name of Bunty (accused Mohan Singh), how SI Inderpal came to know the name of the third assailant as Bunty which he then overwrote as Chintu. Thirdly the Scene of Crime was never preserved nor it got inspected through the Crime Team nor it was photographed or videographed nor any exhibits were lifted from the spot of incident in the form of blood stains, broken flower pots, dandas nor was any exhibit sent for forensic examination. As per the testimonies of the various eye witnesses the accused Mohan Singh @ Bunty picked up a flower pot and smashed it on the head of the deceased and the flower pot broke into pieces. No such broken pieces of flower pot were lifted from the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 237 spot. I am sure if the initial Investigating Officer had been diligent to visit the spot of the incident he could have found some telltale signs of quarrel and this he apparently did not do. Fourthly despite the fact that the friends of the deceased i.e. Anis Raj, Chandan Kumar and Kapil Dagar having informed SI Inder Pal in their statements under Section 161 Cr.P.C. the manner in which all the three accused had assaulted Manoj @ Vicky, the FIR was registered for lesser offence i.e. under Section 325 Indian Penal Code and surprisingly no efforts were made to search the accused Mohan @ Bunty who is a resident of the same area except to have visited his house in the late hours on the date of incident along with friends of deceased which SI Inder Pal probably did under pressure from eye witnesses/ friends of the deceased with even letting these young boys to realize that the name of Mohan Singh had very stealthy been omitted. Lastly the Call Detail Records of the mobile phones used by the friends of the deceased have not been placed on record nor the Nodal Officers have been cited as witness to prove the location of the various witnesses. This was specific evidence which would have provided additional support to the prosecution version which has not been done.
(200) No doubt, as observed by this Court the investigations have been conducted in most lackadaisical, halfhearted and non professional manner leaving a lot to be desired impels me to believe that the possibility of this being deliberate cannot be ruled out. Yet does that mean that the accused should be given the benefit of the same? The answer, of course, is St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 238 'NO'.
(201) Having highlighted the all out attempt of the Investigating Agency to protect some one which certainly appears to be deliberate in order to help the accused who was the only person who could have benefited from withholding of the material/ evidence as highlighted herein above, there is no reason why the benefit of the same should be given to the accused when the ocular, medical and other circumstantial evidence is sufficient to prove and establish the guilt of the accused persons to the hilt and I have no hesitation in holding that for the deliberate acts of omission of the Investigating Officer (s) and for the wrongs committed by him the benefit of the same cannot be given to the accused persons. FINAL CONCLUSIONS:
(202) 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 St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 239 and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(203) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. On the basis of the testimonies of the various eye witnesses and the other evidence on record the following aspects stand established:
➢ That on 10.12.2010, at about 3.00 PM, Manoj Kumar @ Vicky along with Anis Raj, Kapil Dagar and Chandan, who were good friends reached at DDA Market, Hudson Lane to take tea.
➢ That Chandan received a call on his mobile phone and therefore he went towards the gate to receive the call in privacy whereas Anis Raj, Kapil Dagar and Manoj @ Vicky were still standing on the Road.
➢ That in the meantime accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu came there and started arguing with Manoj @ Vicky.
➢ That both the accused Sanjay and Bhagwan Sahai then exhorted to St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 240 finish Manoj @ Vicky who had escaped from their clutches previously.
➢ That both Sanjay and Bhagwan Sahai then started giving beatings to Manoj @ Vicky with fist and leg blows due to which Vicky fell down.
➢ That both the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu then brought the Dandas from the nearby stall (Thiya) of a Washerman (Dhobi) and started giving Danda blows on the person of Manoj @ Vicky.
➢ That Manoj tried to save his head from the blows of Danda given by both the accused persons with his both hands.
➢ That in the meanwhile the accused Mohan Singh @ Bunty came to the spot and first gave him danda blows and then picked up a big flower pot made of cement, which was lying there and hit that pot (Gamla) on the head of Manoj, who was lying on the road.
➢ That in the meantime Chandan had also reached there and on seeing the incident he started dialing number 100.
➢ That the pot was broken into pieces and even after hitting the pot on the head of Manoj, all the three accused continued to give beatings to Manoj.
➢ That during this incident Anis Raj, Kapil Dagar, Chandan and other public persons who had collected there tried to save Manoj but both the accused extended threats to face dire consequences to them and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 241 shown Dandas to them.
➢ That the assailants/ accused also slapped one old shopkeeper, who tried to intervene to save Manoj and Manoj @ Vicky who was lying on the road became senseless.
➢ That accused Sanjay, Bhagwan Sahai and Mohan Singh then falsely announced to every one present at the spot that Manoj @ Vicky was a chain snatcher who had snatched their chain and had been caught. ➢ That the accused Sanjay, Bhagwan Sahai and Mohan Singh then lifted Manoj @ Vicky from the road, threw him in a cycle rickshaw and all moved from there, saying that they were taking Manoj to the Police Station as he had tried to snatch their gold chain. ➢ That the above incident was also witnessed by a large number of public persons including Dev Raj, Rajiv Saini and B.S. Mehta. ➢ That since PCR was taking time to reach the spot, hence Anis alongwith Kapil Dagar reached at Police Station Maurice Nagar to inform the police but the officials of Police Station Maurice Nagar told them that the place of incident did not fall within their local jurisdiction and asked them to go to Police Station Mukherjee Nagar. ➢ That while Anis Raj, Kapil Dagar and Chandan again reached at the spot, PCR was present near NDPL Office and they called their other friends and thereafter, they all reached at Police Station Mukherjee Nagar where they came to know that Manoj @ Vicky who had been brought to Police Station claiming that he was a chain snatcher had St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 242 already been shifted to BJRM Hospital by the PCR.
➢ That they reached Mukherjee Nagar Police Station where the PCR Van Incharge W/HC Parwati (PW9) came and made inquiries and was told that Manoj @ Vicky was a chain snatcher but since both Manoj and Bhagwan Sahai were injured she shifted both to BJRM Hospital.
➢ That Manoj @ Vicky was still conscious when he reached Hospital and gave the history to doctors of as assault.
➢ That the family of Manoj @ Vicky came to the hospital and he informed his brother in law/ Jija Rajesh Patel that he had been beaten by accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh. ➢ That SI Inder Pal came to the Hospital and recorded the statement of Manoj @ Vicky on which he obtained his thumb impressions on the basis of which the FIR was registered under Section 325 Indian Penal code at around 8:05 PM on the same day.
➢ That SI Inderpal took the thumb impressions of Manoj @ Vicky on various documents while he was under treatment at BJRM Hospital. ➢ That on 11.12.2010 injured Manoj was shifted to Sushruta Trauma Center.
➢ That on 18.12.2010 at 1:10 PM Manoj @ Vicky expired and Section 302 IPC was added in the FIR and there was a huge public outcry and protest over the inaction of local police and for failure of act against culprits which was covered by various news channels. St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 243 ➢ That on seeing the news of the death of Manoj @ Vicky on various channels, the eye witnesses to the incident Dev Raj and Rajiv Saini came forward and informed the police of the incident. (204) The ocular evidence on record in the form of testimonies of witnesses Dev Raj, Anis Raj, Kapil Dagar, Rajeev Saini and Chandan Kumar establishes that the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu were the boys who first gave fist and leg blows and then gave danda blows to the victim Manoj @ Vicky. Further, it stands established that it was the accused Mohan Singh @ Bunty who picked up a flower pot lying outside a house and smashed it on the head of the victim and hence the ocular evidence conclusively connects the accused Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty with the offence. The oral testimony of these witnesses find due corroboration from the circumstantial evidence on record including the testimonies of B.S. Mehta and Rajender Singh.
(205) The medical evidence on record is also compatible to the prosecution that the death of the deceased Manoj @ Vicky was a homicidal death caused as a result of craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force by the other party i.e. accused.
(206) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 244 been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence.
(207) 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. (208) In view of the above, I hereby hold that the prosecution has been able to prove that all the accused Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty in furtherance of their common intention caused injuries to Manoj @ Vicky as a result of which he died due to shock and craniocerebral damage on account of multiple fracture and head injury. The prosecution has also been able to establish the necessary intent and knowledge (as contemplated under Section 299 Indian Penal Code), of the accused Sanjay Dhankad @ Nakli, Bhagwan Sahai @ St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 245 Chintu and Mohan Singh @ Bunty to commit the murder of Manoj @ Vicky, for which they are all held guilty of the offence under Section 302 read with 34 Indian Penal Code and are accordingly convicted. (209) Before I end, I may observe that in the cases of Dayal Singh & Ors. vs State Of Uttranchal in Criminal Appeal No.529 of 2010 decided on 3.8.2012 and in the case of State of Gujarat Vs. Kishanbhai Etc. in Criminal Appeal No. 1485/2008 decided on 7.1.2014, the Hon'ble Apex Court has obligated upon the Trial Courts to bring on record all the acts of omissions and lapses committed by the investigating officers etc. while observing that ".......Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation......". (210) In terms of the aforesaid the lapses and wrongs of the Investigating Officers and the then SHO Police Station Mukherjee Nagar as highlighted herein above, I hereby direct that a copy of this order be placed before the Commissioner of Police, Delhi and GNCT of Delhi (Home Department) through the Director of Prosecution, Delhi for information and appropriate action in accordance with law, in terms of the directions of St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 246 Hon'ble Supreme Court in the case of State of Gujarat Vs. Kishanbhai Etc. in Criminal Appeal No. 1485/2008 decided on 7.1.2014, copies of which have already been circulated by the Hon'ble Apex Court to Home Secretaries of all the States and UTs for compliance. (211) Be listed for arguments on sentence on 15.5.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 7.5.2014 ASJII(NW)/ ROHINI
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 247
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 51/2013 Unique Case ID No.: 02404R0078652011 State Vs. (1) Sanjay Dhankad @ Nakli S/o Sat Narain R/o House No. 94, Raj Pura Gur Mandi, PS Model Town, Delhi (Convicted) (2) Bhagwan Sahai @ Chintu S/o Narain Singh R/o Jhuggi No. T84, 206, Raj Pura Gur Mandi, PS Model Town, Delhi (Convicted) (3) Mohan Singh @ Bunty S/o Sh. Narender Singh R/o 146, DTC Colony, Rana Pratap Bagh, Delhi (Convicted) FIR No.: 440/2010 Police Station: Mukherjee Nagar Under Sections: 302/325/34 Indian Penal Code Date of conviction: 7.5.2014 Arguments heard on: 15.5.2014 Date on sentence: 20.5.2014 St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 248 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convict Sanjay Dhankar in JC with Sh. Mukesh Vats Advocate.
Convict Bhagwan Sahai in JC with Sh. Narender Kumar Advocate.
Convict Mohan Singh in JC with Sh. Arun Yadav Advocate.
ORDER ON SENTENCE:
As per allegations on 10.12.2010 at about 3:00 PM at Hudson lane, DDA Market, on the road all the three accused i.e. Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty in furtherance of their common intention assaulted Manoj @ Vicky and caused head injury to him as a result of which Manoj @ Vicky died due to shock and cranio cerebral damage on account of multiple fracture and head injury.
On the basis of the testimonies of various eye witnesses particularly the friends of the deceased i.e. Anis Raj, Kapil Dagar and Chandan Kumar and the independent public witnesses i.e. Dev Raj and Rajiv Saini and also on the basis of the testimonies of other prosecution witnesses and the medical and circumstantial evidence on record; vide a detail judgment dated 7.5.2014 this court has held all the three accused Sanjay Dhankar @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 249 Bunty guilty of the offence under Section 302 r/w 34 Indian Penal Code and convicted accordingly.
Vide the detail judgment this Court has observed that the prosecution has been able to successfully prove and establish that on 10.12.2010, at about 3.00 PM, Manoj Kumar @ Vicky along with Anis Raj, Kapil Dagar and Chandan, who were good friends reached at DDA Market, Hudson Lane to take tea; that Chandan received a call on his mobile phone and therefore he went towards the gate to receive the call in privacy whereas Anis Raj, Kapil Dagar and Manoj @ Vicky (victim) were still standing on the Road; that in the meantime accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu came there and started arguing with Manoj @ Vicky; that both the accused Sanjay and Bhagwan Sahai then exhorted to finish Manoj @ Vicky who had escaped from their clutches previously; that both Sanjay and Bhagwan Sahai then started giving beatings to Manoj @ Vicky with fist and leg blows due to which Vicky fell down; that both the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu then brought the Dandas from the nearby stall (Thiya) of a Washerman (Dhobi) and started giving Danda blows on the person of Manoj @ Vicky; that Manoj tried to save his head from the blows of Danda given by both the accused persons with his both hands.
The prosecution has also been able to establish that in the meanwhile the accused Mohan Singh @ Bunty came to the spot and first gave him danda blows and then picked up a big flower pot made of cement, St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 250 which was lying there and hit that pot (Gamla) on the head of Manoj, who was lying on the road; that in the meantime Chandan had also reached there and on seeing the incident he started dialing number 100; that the pot was broken into pieces and even after hitting the pot on the head of Manoj, all the three accused continued to give beatings to Manoj; that during this incident Anis Raj, Kapil Dagar, Chandan and other public persons who had collected there tried to save Manoj but both the accused extended threats to face dire consequences to them and shown Dandas to them; that the assailants/ accused also slapped one old shopkeeper, who tried to intervene to save Manoj and Manoj @ Vicky who was lying on the road became senseless; that accused Sanjay, Bhagwan Sahai and Mohan Singh then falsely announced to every one present at the spot that Manoj @ Vicky was a chain snatcher who had snatched their chain and had been caught; that the accused Sanjay, Bhagwan Sahai and Mohan Singh then lifted Manoj @ Vicky from the road, threw him in a cycle rickshaw and all moved from there, saying that they were taking Manoj to the Police Station as he had tried to snatch their gold chain.
Further, it has been established that the above incident was also witnessed by a large number of public persons including Dev Raj, Rajiv Saini and B.S. Mehta; that since PCR was taking time to reach the spot, hence Anis alongwith Kapil Dagar reached at Police Station Maurice Nagar to inform the police but the officials of Police Station Maurice Nagar told them that the place of incident did not fall within their local jurisdiction and St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 251 asked them to go to Police Station Mukherjee Nagar; that while Anis Raj, Kapil Dagar and Chandan again reached at the spot, PCR was present near NDPL Office and they called their other friends and thereafter, they all reached at Police Station Mukherjee Nagar where they came to know that Manoj @ Vicky who had been brought to Police Station claiming that he was a chain snatcher had already been shifted to BJRM Hospital by the PCR; that they reached Mukherjee Nagar Police Station where the PCR Van Incharge W/HC Parwati came and made inquiries and was told that Manoj @ Vicky was a chain snatcher but since both Manoj and Bhagwan Sahai were injured she shifted both to BJRM Hospital; that Manoj @ Vicky was still conscious when he reached Hospital and gave the history to doctors of as assault; that the family of Manoj @ Vicky came to the hospital and he informed his brother in law/ Jija Rajesh Patel that he had been beaten by accused Sanjay Dhankad, Bhagwan Sahai and Mohan Singh.
It has also been established that SI Inder Pal came to the Hospital and recorded the statement of Manoj @ Vicky on which he obtained his thumb impressions on the basis of which the FIR was registered under Section 325 Indian Penal code at around 8:05 PM on the same day; that SI Inderpal took the thumb impressions of Manoj @ Vicky on various documents while he was under treatment at BJRM Hospital; that on 11.12.2010 injured Manoj was shifted to Sushruta Trauma Center; that on 18.12.2010 at 1:10 PM Manoj @ Vicky expired and Section 302 IPC was added in the FIR and there was a huge public outcry and protest over the St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 252 inaction of local police and for failure of act against culprits which was covered by various news channels; that on seeing the news of the death of Manoj @ Vicky on various channels, the eye witnesses to the incident Dev Raj and Rajiv Saini came forward and informed the police of the incident.
This Court has further observed that the ocular evidence on record in the form of testimonies of witnesses Dev Raj, Anis Raj, Kapil Dagar, Rajeev Saini and Chandan Kumar established that the accused Sanjay Dhankad @ Nakli and Bhagwan Sahai @ Chintu were the boys who first gave fist and leg blows and then gave danda blows to the victim Manoj @ Vicky. Further, it has been established that it was the accused Mohan Singh @ Bunty who picked up a flower pot lying outside a house and smashed it on the head of the victim and hence the ocular evidence conclusively connects the accused Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty with the offence. The oral testimony of these witnesses find due corroboration from the circumstantial evidence on record including the testimonies of B.S. Mehta and Rajender Singh.
The medical evidence on record is also found compatible to the prosecution that the death of the deceased Manoj @ Vicky was a homicidal death caused as a result of craniocerebral damage as a result of multiple fracture sustained and head injury subsequent to blunt force by the other party i.e. accused.
In view of the above, this court has held that the prosecution St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 253 has been able to prove that all the accused Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty in furtherance of their common intention caused injuries to Manoj @ Vicky as a result of which he died due to shock and craniocerebral damage on account of multiple fracture and head injury. It has also been held that the prosecution has been able to establish the necessary intent and knowledge (as contemplated under Section 299 Indian Penal Code), of the accused Sanjay Dhankad @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty to commit the murder of Manoj @ Vicky, for which they have been held guilty of the offence under Section 302 read with 34 Indian Penal Code and accordingly convicted.
Heard arguments on the point of sentence. The convict Sanjay Dhankar @ Nakli is stated to be a young boy of 27 years, having a family comprising of aged parents and three brothers. He is 8th class pass and is a Driver by profession.
The convict Bhagwan Sahai @ Chintu is stated to be a young boy of 24 years, having a family comprising of aged parents, three brothers and two sisters. He is 11th class pass and was a student at the time of incident.
The convict Mohan Singh @ Bunty is stated to be a young boy of 27 years, having a family comprising of aged parents, one younger brother and one sister. He was pursuing BCA in the year 2010 but could not St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 254 complete the same. He was working with BPO and was earning about Rs. 10,000/ in 2010.
Ld. Counsels for the convicts have vehemently argued that the all the convicts are young boys and in fact the convict Bhagwan Sahai has no record of previous criminal involvement. It is pointed out that the convicts Sanjay Dhankar @ Nakli and Mohan Singh @ Bunty were involved in another case bearing FIR No. 277/2009, PS Model Town, U/s. 324/325/34 IPC which has been compounded on 12.4.2014 in Lok Adalat. It is prayed that a lenient view be taken against the convicts.
On the other hand the Ld. Addl. Public Prosecutor has placed his reliance on the judgments of Bachan Singh Vs. State of Punjab reported in 1980 SCC (Crl.) 580 and Machhi Singh & Ors. Vs. State of Punjab reported in 1983 SCC (Crl.) 681 and has argued that keeping in view the facts and circumstances of the present case, there is no alternative before this court but to impose death sentence upon the convicts. It is also stated that the convicts have not been able to show any mitigating circumstances in their favour which could make out a case for imposition of sentence of imprisonment for life.
I have considered the submissions made before me. At the very outset, I may state that there can be no dispute as to the applicability of the various principles as laid down by Hon'ble Supreme Court of India in the aforesaid two cases viz Machhi Singh (Supra) and Bachan Singh (Supra) which are required to be keep in mind before awarding a death sentence in St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 255 any given case.
The law is well settled in the decision in Bachan Singh Vs. State of Punjab [AIR 1980 SC 898], wherein it was held that the death penalty can be inflicted only in the gravest of the grave cases. It was also held that such death penalty can be imposed only when the life imprisonment appears to be inadequate punishment. Again it was cautioned that while imposing the death sentence, there must be balance between circumstances regarding the accused and the mitigating circumstances and that there has to be overall consideration of the circumstances regarding the accused as also the offence. Some aggravating circumstances were also culled out, they being:
(a) Where the murder has been committed after previous planning and involves extreme brutality;
or
(b) Where the murder involves exceptional depravity. The mitigating circumstances which were mentioned in that judgment were:
(a) That the offence was committed under the influence of extreme mental or emotional disturbance;
(b) The age of the accused. If the accused is young or old, he shall not be sentenced to death;
(c) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society;
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 256
(d) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions (c) and (d) above;
(e) That in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence;
(f) That the accused acted under the duress or domination of another person; and
(g) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.
The law was further settled in the decision in Machhi Singh & Ors. Vs. State of Punjab [AIR 1983 SC 957], wherein the Hon'ble Supreme Court insisted upon the mitigating circumstances being balanced against the aggravating circumstances. The aggravating circumstances were described as under:
(a) When the murder is in extremely brutal manner so as to arouse intense and extreme indignation of the community.
(b) When the murder of a large number of persons of a
particular caste, community, or locality is
committed.
(c) When the murder of an innocent child, a helpless
woman is committed.
It was also observed by the Hon'ble Court that at the same time it must be kept in mind that the principle of there being a proportion St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 257 between punishment and offences ought not to be so mathematically followed so as to render the laws subtle, complicated and obscured. Brevity and simplicity are a superior good. Something of exact proportion may also be sacrificed to render the punishment more striking, more fit to inspire people with a sentiment of aversion for those vices which prepare the way for crimes.
The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is the desirability to keep the offender out of circulation.
Now, I would like to draw a balance sheet of aggravating and mitigating factors. The mitigating factors in the present case are that all the convicts namely Sanjay Dhankar @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty are young boys. The aggravating factors are that the deceased Manoj @ Vicky was also a young boy of 18 years and there was a previous history of disputes between the convicts and the deceased on account of which the victim Manoj @ Vicky was mercilessly beaten in broad day light within full public view without any fear of law and any person who tried to intervene was also threatened.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 258
After having considered the submissions made before me and the various aggravating and mitigating factors, I hold that the case in hand certainly does not fall within the category of Rarest of Rare or least even in category of Rare Case. Therefore I award the following sentences to the convicts Sanjay Dhankar @ Nakli, Bhagwan Sahai @ Chintu and Mohan Singh @ Bunty:
1. For the offence under Section 302 Indian Penal Code the convicts are sentenced to Rigorous Imprisonment for Life and fine to the tune of Rs.1,00,000/ (Rs. One Lac) each. In default of payment of fine the convicts shall undergo Simple Imprisonment for a period of Six Months each. The total fine amount of Rs. Three Lacs (i.e. Rs.
One Lac from each convict) if deposited by the convicts shall be given to the family of the deceased Manoj @ Vicky as compensation under Section 357 Cr.P.C.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period undergone by them during the trial.
The convicts are informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 259
Copy of the judgment and order of sentence be given to the convicts free of costs and one copy of sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 20.5.2014 ASJII(NW)/ ROHINI
St. Vs. Sanjay Dhankad Etc., FIR No. 440/10, PS Mukherjee Nagar Page No. 260