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Delhi District Court

State vs Iliyass Mohammad @ Tahir on 7 December, 2021

  IN THE COURT OF SH. NAVEEN KUMAR KASHYAP :
       ADDL. SESSIONS JUDGE-04 (CENTRAL). TIS HAZARI
                       COURTS: DELHI

Sessions Case No.              :         28232/2016
FIR No.                        :         315/2014
PS                             :         Nabi Karim
U/Sec.                         :         302 IPC
Case ID                        :         DL CT01-002366-2014

State                Versus              Iliyass Mohammad @ Tahir
                                         Mohd. @ Iklass
                                         S/o Habib
                                         R/o H. No. Mohalla Balli Sarai,
                                         Kasba Atrauli, PS Atrauli,
                                         Distt. Aligarh UP

Date of Institution                  :             28/10/2014
Date of reserving order              :             06/09/2021
Date of Judgment                     :             07/12/2021

                               JUDGMENT

1. In nutshell, the case of prosecution is that on 12/07/2014 a DD no.19A was received from LHMC Hospital that one injured/victim/deceased in question Mr. Chhutwa @ Bittoo Kumar, admitted from New Delhi Railway Station, has died.

Further, as per the case of prosecution present accused Mr. Iliyas Mohd. @ Tahir Mohd. @ Iklass on Friday 11/07/2014, in the presence of eye witness PW2A / Ms. Rabia Amma and PW24 / Mr. Gulab using a thick 'danda' / stick, by hitting the deceased with the same repeatedly ,killed such victim Mr. Chhutwa. Such deceased was taken to Lady Harding Hospital, but expired later on as noted above.

Further, as per the case of prosecution, at the instance of such PW24 / Gulab site plan was prepared without scale. The SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 1/50 place of incident was found to fall in the compound known as 'inside parcel gate'. Further on inspection of scene of crime one iron board having blood stains was found and further one bed sheet having blood stains was also found. Postmortem of deceased was conducted on 15/07/2014. Later on, on 17/07/2014 during investigation such accused was arrested. Further as per the claim of prosecution, he even made a disclosure statement confessing the offence in question. Further, it is claimed that at the instance of such accused, danda / stick used in killing the deceased was also recovered. It is further found that such accused was involved in two FIRs No. 89/2012 u/s 27 NDPS Act and another FIR no. 317/2008 which was also u/s 27 NDPS Act.

Ultimately, present charge-sheet is filed for the offence u/s 302 IPC against the present accused.

2. Further, as per record on 02/12/2014 after hearing arguments on charge, charge u/s 302 IPC was framed against the present accused to which he pleaded not guilty and claimed trial. Further, as per record, accused did not have a Learned private counsel to engage,therefore, Learned Amicus Curiae was appointed by my learned Predecessor for such accused.

3. Further, as per record, prosecution examined in total 26 witnesses including the public witnesses PW24 / Gulab, PW2A / Ms. Rabia Amma, PW17 / Mr. Jaggu @ Sonu. Apart from this, prosecution also examined police witnesses including the IO who participated in the investigation. Further, prosecution also examined doctors / expert witnesses PW18, PW20, PW21 & PW23.

4. Further, statement of accused was recorded U/s 313 Cr.PC by my learned Predecessor and all the relevant SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 2/50 incriminating material was put to him. In his statement U/s 313 Cr.PC, the stands taken by the accused is that he does not know as to why such public and police witnesses have deposed against him. He further claimed that he was arrested at about 8:00-9:00 AM from platform No.16 at NDRS by two police officials. He further took the stand that he did not make any disclosure statement to the police and PW25 Inspector Sanjay Kumar obtained his signature on blank papers which were converted into the documents like disclosure statements later on. He further took a stand that alleged danda / weapon of offence was planted upon him. He further stated that PW24 Gulab has deposed falsely against him. He further took stand that he is falsely implicated in present FIR and IO has already shown him to all the witnesses. It is further claimed that at the instance of PW2A Rabia Amma and PW24 Gulab, he was falsely implicated in present case. But he does not know the reasons thereof. He further stated that he was a vagabond and he does not know the whereabouts of the persons with whom he was working as a 'coolie' at New Delhi Railway Station. Further, as per record, it is noted that accused did not choose to lead any evidence in defence.

5. Arguments in detail heard from both the sides.

6. It is argued by learned Addl.PP for the State that two of the public witnesses, who are the eye witnesses as per the prosecution case, namely PW2A and PW24, supported the prosecution story on all material particulars. It is further argued that although PW17 Jaggu @ Sonu resiled from his statement / stand given to the IO during investigation, still he even admitted that such victim was killed on that day at the time and place as per the prosecution story. Further, in any case he is not an eye SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 3/50 witness even as per the prosecution. Further, PW-17 is just a public witness examined by a prosecution relating to sequence of events after the offence in question was committed by the present accused, including taking the victim to hospital. It is further argued that on a bare reading of evidence public witnesses PW2A and PW24 read with medical evidence on record, it is more than clear that it is the accused who murdered the victim. It is further argued that having regard to the evidence of eye witnesses, nature of injury caused and the part of body on which such injury was caused, even clause-I of section 300 is attracted. Even otherwise, it is argued that such evidence on record during trial even satisfying clause 2 as well as clause 3 of section 300 IPC, as such injury was caused with intention to cause such bodily injury as the accused knew to be likely to cause death and in any case, such bodily injury intended by the accused to be inflicted upon the deceased was proved to be sufficient in the ordinary course of nature to cause death. It is further argued by learned Addl.PP for state that on a bare reading of evidence of PW18 Dr. B.L. Chaudhary who conducted the postmortem on the body of deceased Chhutwa @ Bittoo Kumar it can be seen that there were as many as 35 injury found inflicted upon the deceased. Further, as per such medical opinion the cause of death was shock consequent upon multiple injuries to the head and chest due to blunt force impact. Such injuries on vital organs brain and lungs were sufficient to cause death in the normal course collectively or individually. It is further stated that as such prosecution is able to prove the present offence against the present accused beyond reasonable doubt and as such he be convicted for the same.

7. On the other hand, it is argued by learned Amicus SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 4/50 Curiae Mr. Rajender Prasad Sarwan that on bare reading of evidence of eye witnesses / public witness PW24 and Tehrir DD entry No.19A dated 12/07/2014 Ex.PW7/A, it can be seen that there is discrepancy in the same. It is further argued that there is discrepancy in the statement of PW24 viz-a-viz his statement u/s 164 Cr.PC. It is further argued that on a bare perusal of statement u/s 164 Cr.PC of such PW24, it can be noted that the same is short and cryptic in nature whereas during his evidence in Court he made improvements at the instance of prosecution which is a matter of record. It is further argued that such statement u/s 164 Cr.PC by such PW24 is silent about the presence of PW2A and PW17. It is further argued that even daughter in law and daughter of PW2A were also present at the scene of alleged crime, as such, they were also material witnesses, still such two female witnesses were not examined by prosecution. It is further stated that PW17 did not support the alleged false version of prosecution and told the truth to the Court, including that no statement was recorded by the IO of such witness. It is further argued by learned counsel for accused that as per cross examination of such PW17 by defence counsel he admitted that PW24 Gulab was not present with PW2A Rabia Amma and such daughter in law and daughter Anita & Aarti at the parcel compound i.e. the alleged place/scene of crime and such PW-24 joined them near Sai Mandir when they were taking the victim to the hospital. It is further argued by learned counsel for accused that infact it is PW2A and PW24 who had beaten such victim and not the present accused, and as a result of such beating by PW24 and PW2A, such victim expired and present accused is falsely implicated for the same. It is further argued that present accused in any case died due to fall, SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 5/50 which is also the possibility as even admitted by the expert witness/Doctor, PW-18, during his cross examination. It is further argued that there is a discrepancy in the evidence of prosecution witnesses regarding recovery of danda / weapon of offence and same is planted upon the accused. It is further argued that there is inconsistency in the statement of witnesses and sequence of events including who was found present at the hospital. It is further argued that in fact accused did not leave the place and run away from that area and his conduct was natural as he did not commit the offence in question and was very much available in the same area even after the alleged incident in question. It is further argued that accused is not arrested on the spot or immediate thereafter, but only after five days. It is further argued that even otherwise accused did not come prepare in order to commit the offence in question, and even as per the prosecution story, he took the danda from the nearby place then and there. As such, it is argued by learned counsel for accused that in any case present accused deserves benefit of doubt and be acquitted of the charge alleged against him.

8. Before proceeding further, as per mandate laid down under Section 354 (1) (b)Cr.P.C following are the points of determination which are necessary to consider in order to arrive at a conclusion:

(I) Whether the accused person murdered the Deceased Mr. Chhutwa/Bittoo Kumar? If so, then.

(II) Whether the case of the accused person falls under any of the exception provided U/s. 300 IPC?

9. I have carefully considered and analysed the evidence on record in the light of submissions addressed by parties to the SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 6/50 lis.

"(I) Whether the accused person murdered the Deceased Mr. Chhutwa/Bittoo?"

10. In the present case before proceedings further, it can be noted there are three public witnesses i.e. PW2A Rabia Amma, PW17 / Jaggu @ Sonu and PW24 / Complainant / Mohd. Gulab Further, apart from this PW1, PW2 & PW14 are from the crime team concerned. Further, PW3, PW4, PW5, PW6, PW7, PW10, PW11, PW12, PW13, PW15, PW16 and PW19 are the various police officials from the local police station who participated in the investigation and discharged various duties from recording of FIR, maalkhana duty, collecting samples, joining the investigation with IO. PW25 is the IO of the case. Apart from them, prosecution also examined doctors PW18 and PW23 who conducted the postmortem as well as PW20 / Dr. Kamal Gupta and Dr. Mukund Gupta PW21. Apart from them, prosecution also examined learned MM PW22 Ms. Ambika Singh who recorded the statement of PW24 u/s 164 Cr.PC. Further, prosecution also examined PW8 Vinod Anand and PW9 Mithu Kumar relative of deceased who identified the dead body of deceased Bittoo Kumar @ Chhutwa.

11. At this stage it may further be noted that in present case, direct/ocular evidence of PW2A and PW24 also find support and is consistent on material particular with police witnesses who participate in investigation immediately after the offence in question till conclusion of investigation and other expert witnesses .As such same is analysed at this stage.

12. PW1 Constable Ravinder Kumar was one of the member of Crime Team led by Incharge SI Dhan Singh / PW2 SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 7/50 who visited the place of incident. He further deposed that there at about 12:50 PM on 12/07/2014, IO SI Manish and Inspector whose name he did not remember met them and at the instance of IO SI Manish he clicked 29 photographs of the spot from various angles and the same are Ex.PW1/A1 to PW1/A23. He further stated that during his evidence in Court he brought the negatives of the same and the same are exhibited as Ex.PW1/B1 to Ex.PW1/B23. He further stated that on the same day he also went to the mortuary at Lady Harding Hospital and at the instance of IO he clicked six photographs of the dead body / victim. He further deposed that five positive of dead body are exhibited as Ex.PW1/A24 to A28 and five negatives are PW1/B24 to B28.

In his cross examination, he deposed on the line of examination in chief regarding the time and date of incident as well as sequence of taking such photographs. He denied suggestion that he did not visit the spots or did not take photographs of the spot and dead body. He further denied the suggestion that he did not join the investigation with crime team.

13. PW2 ,SI Dhan Singh, deposed in his examination in chief that on 12/07/2014 he was incharge Crime Team Central District Pahar Ganj Delhi and on receipt of information from Control Room, he alongwith other members of Crime Team HC Inder Jeet, finger print proficient, Constable Ravinder Kumar/photographer/PW-1 and driver reached the place of incident. There inspector Sanjay Kumar/PW-25 and SI Manish Kumar/PW-7 alongwith local police staff met him. He deposed that constable Ravinder Kumar / PW1 photographed the scene of crime. He further deposed that Head Constable Inderjeet Singh developed and lifted the chance print from the scene of crime. He SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 8/50 further deposed that he inspected the scene of crime and prepared the report Ex.PW2/A and handed over the same to the IO and statement of such PW2 was recorded by Inspector Sanjay Kumar.

In his cross examination by learned Counsel for accused, he deposed that Inspector Sanjay Kumar /PW25 recorded statement of Constable / photographer and HC Inderjeet in his presence. But he further deposed that did not notice if inspector Sanjay Kumar/PW-25 recorded statements of other officials at the spot. He denied the suggestion that he did not visit the spot of incident. He further denied the suggestion that he did not prepare the report Ex.PW2/A. He further denied the suggestion that no photographs were taken or that no chance prints were developed.

14. PW-14/Inspector Mahesh Kumar deposed that on 28/07/2014 he was posted as drafts man at crime branch PHQ. On that day at the request of Inspector Sanjay Kumar, he reached at PS Nabi Karim from there he alongwith Inspector Sanjay Kumar visited the place of incident i.e. Parcel ground, New Delhi Railway station. There at the instance of Inspector Sanjay Kumar, he took measurements and prepared rough notes. Later on 27/08/2014 he prepared scaled site plan and handed over the same to the IO. He further deposed that he has destroyed the rough notes after preparation of the scaled site plan. The scaled site plan is Ex.PW14/A bearing his signature at point A. In his cross examination, PW14 deposed that public persons were passing through the spot at that time. It is correct that he had not made any public person as witness on the above said proceedings. Further he denied suggestion that he alongwith the IO had not visited the spot or that due to that reason he have SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 9/50 not made any public persons as witness on the above said site plan or that he had not prepared the above said site plan at the instance of the IO or that the above said scaled site plan was prepared while sitting in the PS.

15. PW4 HC Preet Singh deposed that on 12.07.14 at about 12.40 a.m. (night) he received DD No. 3 A which EXPW4/A and he left for Lady Harding Hospital and collected the MLC of injured Chhutwa EXPW4/B. The injured Chhutwa was not available in the said hospital as he had already referred to RML Hospital. Thereafter, he reached at RML Hospital but the injured was not met him at RML Hospital. Thereafter he reached at the spot i.e open area in front of Parcel Yard, New Delhi Railway Station but no eye witness was found there, thereafter PW4 came back to police station and kept the abovesaid DD pending. In the morning time on the same day SI Munish kumar received DD no. 19 regarding death of injured. Thereafter, PW4 reached at the abovesaid spot which SI Munish Kumar was already present and he handed over the abovesaid MLC of injured to SI Munish. SI Munish / PW7 prepared tehrir Mark-A and the same was handed over to PW4. PW4 took the same to police station and got the FIR recorded by DO. Thereafter, he came back at the spot alongwith copy of FIR and original rukka and handed over the same to IO Insp. Sanjay Kumar / PW25 who was present at the spot. IO Insp Sanjay Kumar lifted blood stained earth, earth control, blood gauze, blood stained bedsheet and blood stained stone from the spot and kept the abovesaid exhibits in plastic container separately except blood stained stone as pullanda of blood stained stone was prepared and thereafter IO sealed the abovesaid container and pullanda with the seal of NBKRM II and SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 10/50 seized the same vide seizure memos EXPW4/ C to EXPW4/F respectively bearing signature of PW4 at point A. IO also lifted three empty quarter bottles of whiskey, one pair of black colour slipper, three white colour plastic glasses, one white colour chine bone plate, one steel katori and one steel spoon from the spot and seized the same vide seizure memo EXPW4/G bearing PW4 signature at point A. IO also recorded statement of PW4. PW4 further deposed that he can identify the case property if shown to him and PW4 correctly identified one blood stained stone which was seized from the spot and same is EXP-1. Likewise PW4 correctly identified one blood stained bedsheet seized from the spot and the same is EXP-2. Likewise PW4 correctly identified gauze having blood separately in transparent plastic container and both the plastic container were having the slip of FSL bearing case particulars, date and signature of the official examined by and both the abovesaid plastic container are having doctor tape and having seal of NBKRM II over the led of both the abovesaid container as EXP-3 and EXP-4 respectively. Likewise PW4 correctly identified bottle of whiskey, one pair black colour slipper ( chappal), three white colour plastic glass, one white colour china bone plate, one steel katori and one steep spoon which were seized from the spot and the same are EXP- 7(colly).

Such PW4 was cross examined at length by learned defence counsel. But on analysis of the same it can be seen that nothing material could be extracted. PW4 denied suggestion that despite availability of public persons/ labourers at the spot he had not inquired from them about the incident and whereabouts of the complainant. In fact PW4 clarified that he had not found any SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 11/50 such person there.

16. PW-10 Ct. Ashok Singh and PW11 Ct. Kana Ram deposed that as per direction of the IO, they deposited eight sealed exhibits and one sample seal in the FSL Rohini vide acknowledgment Ex.PW10/B and Ex. PW11/A and Ex.PW11/B.

17. PW-15 ASI Bhim Singh, on 12/07/2014 on the basis rukka recorded FIR No 315/14 in question u/s 302 IPC on computer through computer operator. The print out of the FIR is Ex.PW15/A(OSR) bearing his signature at point A. After recording of FIR he handed over the above said print out of the FIR and original rukka Ex.PW7/C after making his endorsement on the same at point D to D bearing his signature at point E to HC Preet / PW4 for being handed over to Inspector Sanjay Kumar / PW25 for investigation. PW15 further deposed that he also issued certificate u/s 65B of Indian Evidence Act Ex.PW15/D bearing his signature at point A.

18. PW7 SI Munish Kumar deposed that on 12/07/2014, he was posted at PS Nabi Karim. He further deposed that on that day at about 10:10 AM he received DD no.19A Ex.PW7/A regarding death of Chhutwa / victim in hospital who was admitted in hospital by his companion vide MLC No. 46497. He further deposed that he alongwith constable Jagdish / PW12 visited LHMC hospital and got the dead body of deceased preserved in mortuary of such hospital. He deputed such constable Jagdish / PW12 in the mortuary and thereafter he left for spot / place of incident where HC Preet / PW4 met him and he handed over MLC No.46497 to him. He further deposed that in the meanwhile Rabia and Mohd. Gulab met him at the spot and he inquired from both of them about the incident in question.

He further recorded the statement of Mohd. Gulab / PW24 Ex.PW7/B. It is further stated that he made endorsement Ex.PW7/C on the same after getting the thumb impressions of such Mohd. Gulab. Thereafter, PW7 sent the above statement to Police Station through HC Preet / PW4 for getting the FIR registered. He further deposed that he requested the DO to send crime team at the spot. He further deposed that thereafter Inspector IO Sanjay Kumar reached the spot and even crime team also reached the spot and carried out their respective proceedings / investigation including lifting the blood, photographs and sealing the same in separate khaki colour envelope with the seal of NBKRM-II and gave mark A & B and seized the same vide seizure memo Ex.PW4/C. He further deposed that IO also seized empty bottle of liquor, blood stained stone, black colour slippers, plastic white colour glasses, bone china plates from the place of incident. He further deposed that IO recorded his statement. He further correctly identified such property produced in the Court Ex.P1 to P7.

In his cross examination by learned counsel for accused, such PW7 deposed that he did not record the statement of PW2A / Rabia. He further deposed that he sent HC Preet / PW4 with rukka at Police Station at 12:15 PM and he returned back after about 45 minutes at the spot. He further deposed that he do not remember how many photographs were taken by the Crime Team. He further deposed that he do not remember as to which place at the spot the blood stains stone was lying or whether same was shown in the site plan by the IO. He further deposed that he do not remember the length and width of Ex.PW4/E. He further deposed that he do not remember whether SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 13/50 IO mentioned in PW4/F that earth and earth control were lifted with the help of hammer and chheni. He further deposed that no danda was recovered in his presence. But he denied the suggestion that he did not visit the place of incident or did not participate in such investigation.

19. PW-12, Ct Jagdish Accompanied SI Munish Kumar / PW-7 during investigation.

20. HC Ashutosh deposed that on 12/07/2014, he was working as MHC(M) at PS Nabi Karim. He deposed in detail in his examination in chief regarding the various articles deposited by Inspector Sanjay Kumar/PW-25, in the Maalkhana Ex.PW19/A to PW19/M and again handing over the same back for the purpose of investigation / expert opinion from time to time.

During the cross examination by learned counsel for accused, he deposed that they do not mention the time of deposit of articles / pullanda in the maalkhana. But he denied the suggestion that no such articles were deposited with him. He further denied the suggestion that they were not properly sealed. He further denied the suggestion that he did not obtain any receipt for handing over the parcel or the proof of deposit of articles in the FSL. He further denied the suggestion RC produced on record are manipulated.

21. PW-8 Vinodanand deposed that on 15/07/14 he identified the dead body of his nephew Bittoo Kumar in the mortuary of LHMC in the presence of the IO vide his statement Ex.PW8/A bearing his signature at point A. Deceased Bittoo Kumar was residing in Delhi for last 2-3 years prior to the incident.

22. Likewise PW-9 Sh. Mitthu Kumar deposed that on 15/07/14 on receiving a call from police regarding the death of his brother Bittoo Kumar who was working and staying in Delhi for the last 2-3 years prior to the incident, he visited mortuary LHMC where he identified the dead body of his deceased brother Bittoo Kumar in the presence of the IO vide his statement Ex.PW9/A bearing his signature at point A. After postmortem of dead body of his deceased brother Bittoo Kumar, he received the dead body of his brother Bittoo Kumar vide receipt Ex.PW9/B bearing his signature at point A.

23. It may be noted for sake of record that there is not dispute as to the identity of dead body/deceased in question.

24. PW22 Ms. Ambika Singh, learned MM proved proceedings relating to u/s 164 Cr.PC statement of PW24 as Ex.PW22/C.

25. PW-17 Jaggu Orau @ Sonu is the third public witness examined by the prosecution. He deposed that he does not remember the exact date, month and year. However, at about quarter to 11, when he had come out from gate near power cabin, New Delhi Railway station, he saw one man Chhutwa crying in pain(Tadap raha tha) in front of the said power cabin near Laddu Ram ka Thia. He with the help of Gulab, Anita and Arti took injured Chhutwa in a battery rickshaw arranged by him to Lady Harding hospital and got him admitted in the above said hospital. His name and address was also taken in the above said hospital at the time of admission of Chhutwa. After getting chhutuwa admitted in the hospital, he came back to New Delhi railway station from the hospital.

From his examination in chief, it is clear that he did not SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 15/50 support the prosecution .As such, Learned Addl.PP prayed and was allowed to cross examine this witness/PW-17.

During his such cross examination in this manner and stage by learned Addl.PP, PW-17 deposed and denied that his statement recorded by the IO on 19/07/14 that he plied his battery rickshaw at New Delhi Railway station. But he admitted that he was residing at parcel gate compound with Gulab and Rabia Amma. He further admitted that Gulab / PW24 told him that Tahir/accused had beaten Chhutwa with danda mercilessly and Chhutwa has become unconscious and "Use hospital le jana hai". He further admitted that accused Tahir used to visit frequently at Parcel compound and PW17 knew him before the date of incident.

In his cross examination by Ld. Amicus curie for accused, he deposed that he had remained in the hospital for about 30-45 minutes. he He further deposed that Anita, Arti and Gulab had got down at the gate of hospital. He had taken the injured Chhutwa inside the hospital. He further deposed that Gulab was not present with Rabia Amma, Anita and Arti at parcel compound and he had joined them near Sai Mandir when they were taking injured Chhutwa to the hospital. He further deposed that after the incident he had left for his native place and stayed there for about one/one and half year. Thereafter, he came back to Delhi and stayed about one month and 7 days, thereafter, he left for Haridwar due to fear of police implicating him in this case.

26. PW6 HC Suresh Kumar and PW-16 HC Hemant Sharma are the police witnesses who joined the investigation of the present case with the IO Inspector Sanjay Kumar/PW-25. They deposed that one person namely Mohd. Gulab met them on SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 16/50 the way on 17/07/2014 and IO/PW-25 joined in the investigation. Thereafter, they reached at New Delhi Railway station. When they reached at out gate, Pahar Ganj side New Delhi Railway station, in the meantime Mohd. Gulab / PW24 pointed out a person and on the pointing out of Mohd. Gulab , they, PW6 and PW16 apprehended the said person who disclosed his name as Iliyas Mohd. @ Tahir. Both such PW6 and PW16 correctly identified such accused in Court. They further deposed that IO interrogated the accused and accused disclosed about his involvement in the present case by disclosing that he had beaten Chhutwa with danda. IO recorded disclosure statement Ex.PW6/D. IO arrested the accused vide his arrest memo and personal search memo Ex.PW6/A and Ex.PW6/B. They further deposed that accused Iliyas Mohd. @ Tahir led them behind parcel gate railway line new Delhi Railway station and got recovered a wooden danda from there. IO prepared pullanda above said danda with the help of cloth and sealed the same with the seal of NBKRM-II and seized the same vide seizure memo, Ex.PW6/E. IO had also prepared the site plan of the place of recovery of the above said danda which is Ex.PW16/A. PW6 & PW16 correctly identified danda in Court to be the same which was got recovered by accused from behind parcel gate railway line New Delhi, Ex.PW2/P1.

In their cross examination by learned counsel for accused, they deposed that IO had made inquiry from various persons about the accused before joining Mohd. Gulab but IO had not given any notice u/s 160 Cr.PC to the above said persons who were inquired about the accused. They further admitted that they do not remember whether the IO had recorded the name and SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 17/50 address of the said public persons. IO had also inquired owners of Khokas of Paanbidi, cold drink and tea etc about whereabouts of accused. IO had not given any notice u/s 160 Cr.PC to the above said owners of the khokas. They further clarified that IO had requested the above said public persons to be a witness of the arrest of accused, but they did not agree and left without telling their addresses. They denied suggestion that no such thing was occurred there or that due to that reason they had not stated the said facts in their statement u/s 161 Cr.PC. They denied suggestion that accused was not arrested at out gate on the pointing out of Mohd. Gulab or that they are deposing falsely or that Mohd. Gulab was never joined in investigation or that due to that reason Mohd. Gulab has not been shown as witness on any of above said document. They further denied the suggestion that accused had not got recovered above said wooden danda from above said place or that the said danda was planted upon him or that due to that reason no public witness was joined in the investigation at the time of recovery of danda or that all the said documents were not prepared at the said place as stated by them or that above said documents were prepared in PS.

27. PW-25 Inspector Sanjay Kumar is the IO of the case. He proved the overall case of the prosecution and investigation carried out in the case. He deposed that on 12/07/14 he was posted at PS Nabi Karim. On that day he received DD No.19A Ex.PW7/A regarding death of Chhutwa. Accordingly, he alongwith Ct. Ajeet went to Lady Harding Medical College vide DD No.20A Ex.PW25/A where he came to know that the dead body was deposited in mortuary by SI Munish and was preserved for 72 hours upon his request Ex.PW25/B. Thereafter, he went to SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 18/50 the spot i.e. parcel gate near New Delhi Railway station where SI Munish met him. SI Munish had informed him that Chhutwa had been murdered and he had recorded statement of eye witnesses Gulab and sent the rukka to police station for getting the case registered through HC Preet. PW7 had also informed that the information had been conveyed to mobile crime team. Mobile crime team reached at the spot who inspected the scene of crime. Blood, blood stained stone, blood stained bed sheet, empty quarter bottle of liquor, glass, bowl, spoon, plate, slippers, etc were found at the spot. Photographer of mobile crime team had taken the photographs of the scene of crime. In the meanwhile, HC Preet came back to the spot and the investigation of the case was entrusted to PW25. He had received copy of FIR and original rukka alongwith other documents. Crime team incharge SI Dhan Singh prepared inspection report and handed over the same to PW25. The same is Ex.PW2/A. PW25 lifted the exhibits i.e. blood in gauze piece, blood stained stone, blood stained bed sheet, blood stained earth control and earth control and they were kept separately and sealed with the seal of NBKRM-II and seized vide their respective seizure memos Ex.PW4/C, PW4/D, PW4/E and PW4/F respectively. Empty quarter bottle, one pair black colour slipper, three plastic glass, one plate, one bowl and one spoon were also seized vide seizure memo Ex.PW4/G. 27.1. PW25 further deposed that eye witness Gulab also met him at the spot and upon his identification, the site plan was prepared. The same is Ex.PW24/A. He recorded supplementary statement of Gulab. Thereafter, they returned back to the police station where case property was deposited in the maalkhana. PW25 further recorded statements of variouis witnesses.

27.2. PW25 further deposed on 15/07/2014, the dead body was identified by relatives of deceased Chhutwa vide identification memo Ex.PW8/A and Ex.PW9/A. He had also prepared inquest papers including form 25.35 and the same is Ex.PW25/C. Upon PW25 request Ex.PW18/A, postmortem of deceased was conducted and after postmortem the dead body was handed over to the relative of deceased vide handing over memo Ex.PW9/B. 27.3. PW25 further deposed that on 17/07/2014, HC Suresh and Ct. Hemant had joined the investigation of the present case with PW25. PW25 had received secret information regarding the accused that accused would come at exit gate of New Delhi Railway Station. Accordingly, they left PS for New Delhi Railway Station and on the way, complainant Gulab met them and joined, thereafter, they reached at the exit gate of NDRS. At about 7:30 pm, accused was seen coming towards exit gate, complainant Gulab had identified him and informed them that he was the accused Tahir. Gulab was relieved due to his safety purposes and they had apprehended accused Tahir. PW25 further deposed that he interrogated accused who confessed his involvement in the present case. Accordingly, accused was arrested vide arrest memo Ex.PW6/A. PW25 further deposed and claimed that accused made disclosure statement vide memo Ex.PW6/D. PW25 further deposed that accused also got recovered wooden danda from nearby railway line which was used by him in the commission of the crime. The same was measured, details of which are mentioned in the seizure memo, the same was kept in a cloth pullanda and sealed with the seal of NBKRM-II and seized vide seizure memo Ex.PW6/E. Site plan SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 20/50 of place of recovery was also prepared and the same is Ex.PW16/A.

28. In cross examination he admitted that some public persons were requested to join the investigation, but they have not joined the investigation. PW25 deposed that he does not remember the name of the said public persons. PW25 further admitted that he had not given notice u/s 160 Cr.PC to the public persons who did not join investigation, nor he noted down the names and address of the public persons.

PW25 further admitted that no independent public persons had joined investigation at the time of arrest of the accused. He clarified that some public persons were requested to join the investigation, but they have not joined the investigation, but he does not remember the name of the said public persons. PW25 admitted that he had not given notice u/s 160 Cr.PC to the public persons who did not join investigation, nor he noted down the names and address of the public persons.

PW25 denied suggestion that recovery of wooden danda was not recovered at the instance of the accused. He denied that suggestion that wooden danda was planted by him to solve the present case.

29. At this stage, as far as the disclosure statement of accused is concerned, it is to be seen how much of such alleged disclosure statement can be read in evidence, if so at all.

Admittedly accused made his disclosure statement while in police custody and that too to a police officer.

Section 25 and 26, which have stood the test of the time for about one & half century, bars reading of any such statement given by accused person to the police or while in SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 21/50 police custody.

But section 27 of Indian Evidence Act creates an exception to section 25 and 26 of Indian Indian Evidence Act provided following two conditions are fulfilled:

i) if and when certain facts are deposed to as discovered in consequences of information received from an accused person in police custody, and

ii) if the information relates to the facts discovered.

30. But the Court must be cautious of the possibility of 'planted discovery' in order to bring the case within the ambit of section 27 and to by-pass the salutary main provisions of section 25 and 26 of Indian Evidence Act. The court must scrutinize the evidence on record keeping such precaution at the back of the mind. In order to utilise the provisions of section 27 against an accused person an ordinary recovery, if so at all, can not be turned into a discovery. The fact must be the consequence and the information the cause of its discovery. The information and the fact must be connected with each other as cause and effect and not vice-verse.

31. As far as present case is concerned, it is deposed by PW-25/IO as well as accompanied police official HC Suresh Kumar and PW-16 HC Hemant Sharma deposed that after his arrest, the accused made a disclosure statement Ex. PW-6/D, which was recorded by IO/PW-25. It is further deposed by such police witnesses that consequent thereto, accused also got recovered danda/weapon of offence from near railway line and same was used in the commission of crime.

32. At this stage, it may also be noted that it is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 22/50 reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.

33. At this stage it would be, pertinent to note that argument of the Learned Counsel for accused person relating to non-joining of public witnesses. It is argued by Learned Counsel for accused person that in the case of "Anoop Joshi Vs. State"

1992(2) C.C. Cases 314(HC), Hon'ble High Court of Delhi had observed as under:

"18. It is repeatedly laid down by this Court in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evidence that no such sincere efforts have been made, particularly when we find that shops were open and one or two shop-keepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigors of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".

34. It is further argued by Learned Counsel for accused person that in "Roop Chand Vs. The State of Haryana"

1999(1) C.L.R.69, the Punjab & Haryana High Court held as SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 23/50 under:

"3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".

4. It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join it is a very common excuse that the witnesses from the public refused to join the investigation. A police of officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating of officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police of officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful."

35. It is further argued by Learned Counsel for accused person that in case reported as 1992 Criminal Law Journal page 55 Hon'ble High Court of Delhi had also observed that stereotype versions were being churned out. It was observed:

".....The recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 24/50 witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the presence case,cast doubt. They have again churned out a stereotype version. Its rejection needs no Napolean on the Bridge at Arcola...."

36. In the present case, it is argued on behalf of accused that during the cross-examination, such police official PW-25, PW-6 and PW-16 admitted that there is no independent witness to the recovery of such case property/danda from accused at all, despite deposition of IO/PW-25 and PW-6 and PW-16 that public persons were coming and going near the spot. On the basis of this, in the light of such case law, it is claimed by the learned Counsel for accused that the testimony of all police witnesses be rejected qua such recovery of danda/weapon of offence.

37. On the other hand Learned Addl PP for state, argued to the contrary on this aspect. Learned Addl PP also referred to certain case law including the case of "Appabhai Vs. State of Gujrat" (AIR 1988 SC 696), where it has been held as under:

"..........it is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused."

38. Thus it is argued by Learned Addl P.P. that adverse inference cannot always be drawn on account of failure of the prosecution to join independent witnesses, despite presence and availability of public witness.

39. This court has considered the arguments and case law relied by both sides. This court is mindful of the fact that there is no presumption that the Police Officers are unreliable witnesses and, therefore, their evidence cannot be accepted.

40. Further as far as search of case property / weapon of offence etc. is concerned, it is also laid down by the Hon'ble Supreme Court time and again that the evidence of the investigating Officer conducting a search can be relied upon without corroboration ,but is equally settled law at the same time is that the question of corroboration depends upon the facts in each case.

41. At this stage, it may further be noted that Hon'ble Kerala High Court in the case of Manheri Rajan v. State, 1987 Cri LJ 563, para 17, held that unlike S. 100 or S. 165, Cr.P.C. there is no statutory provision insisting upon preparation of a search list and its attestation so far as the discovery under S. 27 of the Evidence Act pursuant to the information given by the accused is concerned.

But the same judgment of Manheri Rajan case says that if the Court feels that the uncorroborated testimony of the Police Officer by itself is capable of inspiring confidence, there is nothing forbidding the Court from acting upon the same. Corroboration, it is held in the above case should be insisted upon only where it is considered necessary.

42. Thus it is held by this court that whether non-joining of independent persons /witnesses would, at the time of arrest, or recovery of case property/weapon of offence etc.bin situation covered u/s 27 of Evidence Act), be fatal to the prosecution case or not, would depend on the facts and circumstance of each case, in view of appreciation of evidence on record. There can not be a universal rule for the same.

43. In this backgrounds of law, including case laws, coming back to the facts of present case, out of the disclosure statement Ex.PW-6/D of accused, it may be noted that in present case, there are some lapses on the part of police officials in not making sincere efforts to join the public witnesses at the time of recovery of such wooden danda/weapon of offence despite the fact that it is the case of prosecution that such fact that such wooden danda/weapon of offence was not visible and discovered only consequent to disclosure statement of the accused and as such, such discovery is saved and covered u/s 27 of Evidence Act. But it raises some doubt on the exact manner and place from where the danda was recovered. In this regard, it may be further noted that PW-2A/eye witness deposed in her cross-examination that accused left the danda/such weapon of offence on the spot of incident only after committing such offence in question.

As such, this court doubts the recovery of danda in the manner as claimed by the police official. But having noted so, because of such procedural lapses, the overall case cannot suffer as far as present case is concerned, as there is categorical, consistent evidence of PW-2A and PW-24 that accused used a wooden danda which was lying nearby in committing the offence in question. Further, both such witnesses correctly identified such SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 27/50 wooden danda in court as the danda used in committing the offence, as is discussed later on.

44. It may further be noted that nothing except bald denial has surfaced when the incriminating evidence aforesaid was put to the accused during his statement under section 313 CrPC. All what was stated by the accused in his statement u/s 313 Cr.PC is that he was easy pray and as such false implicated by police. Further, in any case, accused did not lead any evidence to substantiate his defence.

45. In this background of facts and circumstances, as per the case of prosecution , PW-24 Mohd. Gulab is the main as well as eye witness of present case. He is also the complainant in presence case at whose instance the FIR in question was registered.

Such PW- 24 deposed in court that in the year of 2014, he was residing at footpath near parcel gate, New Delhi Railway Station and used to pick regs. One Ms.Amma Rabia(PW-2A), alongwith her daughter in law and daughter were also residing near the parcel gate. PW -24 further deposed that deceased Chhutwa was also residing there. Accused Tahir used to come at the place of Amma Rabia and he was also residing nearby the railway station. PW -24 further correctly identified accused Tahir present in the court , as the perpetrator of crime in question. PW

-24 further deposed and alleged that present accused was was a thief and used to consume smack.

PW -24 further deposed that although he do not remember the exact date due to lapse of time, on the day of incident it was about 10-10:30 pm, in the year of 2014 when present accused Tahir came to the place of Amma Rabia/PW-2A, SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 28/50 where PW-24 alongwith deceased Chhutwa were consuming liquor. Accused Tahir asked to Chhutwa to return his money which was stolen. Accused Tahir was having suspicion towards Chhutwa. Chhutwa replied that he had not taken his money. Upon which, accused Tahir started quarreling and abusing to Chhutwa and lifted a danda / stick which was lying nearby the spot and started beating mercilessly to Chhutwa by the said danda / stick. Accused had given several blows of stick all over the body of Chhutwa including head.

PW -24 further deposed that when he alongwith Amma/PW-2A tried to save Chhutwa, the present accused threatened them to leave from there otherwise they would be killed(by accused). PW -24 further deposed that Accused Tahir had repeatedly beaten Chhutwa by the said danda till Chhutwa became unconscious. PW -24 further deposed that thereafter, accused Tahir left from there.

PW -24 further deposed that Chhutwa was bleeding and he was shifted to the hospital by him,PW-2A alongwith one Sonu/PW-17, who was serving in parcel house. Deceased Chhutwa was shifted to the Lady harding hospital by a battery rickshaw and admitted him there. PW-24 further deposed that later on he came to know that Chhutwa had expired.

PW-24 further deposed that Police recorded his statement on the next date of incident. The same is already Ex.PW7/B bearing his thumb impressions at point B. PW-24 further deposed that he had shown the place of occurrence to the police and the site plan is Ex.PW24/A, bearing his thumb impression at point A. PW -24 further deposed that his statement was also recorded by a lady judge/PW-22 in the court upon SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 29/50 which he appended his thumb impressions,which statement u/s 164 Cr.PC is already Ex.PW22/C bearing his thumb impression at point B. PW-24 further correctly identified the danda / stick as the same by which accused Tahir had repeatedly beaten the deceased Chhutwa and was seized by the IO and which was already Ex.PW2/P1.

46. Further Learned Addl.PP sought permission to put some leading question to this prime witness PW-24 and same was allowed by my Ld predecessor. And during such examination by the Ld PP, PW-24 further deposed that it is correct on 09/07/2014, at about 8 pm, when I alongwith Amma, her daughter in law Anita and Chhutwa were sitting near parcel gate, accused Tahir came there inebriated condition and slept there and woke up after about half an hour and asked as to who had taken his money and made suspicion towards Chhutwa, upon which Chhutwa had stated that he had not taken / removed any money, thereafter, accused Tahir left from there. PW-24 further deposed that the incident in question took place on 11/07/2014.

47. During his cross examination by Ld counsel for accused PW-24 admitted that that there was no other jhuggi except the jhuggi of Rabia Amma. PW-24 further admitted that the distance between parcel godown of railway station and the jhuggi of Rabia Amma can be traveled within 5 minutes on foot. PW-24 further admitted that one of the gate of parcel was situated near the jhuggi of Rabia Amma and the another gate was just few paces away from that gate. PW-24 further admitted that public used to 'to and fro' from the said gate in day as well as at late night hour.

PW-24 further admitted that on the day of incident, he was sitting at the jhuggi of Rabia Amma from 9 pm. Daughter in law of Rabia Amma was also there.

But such PW-24 denied the suggestion that no such incident as mentioned by me in my complaint as ever occurred on 11/07/14. PW-24 further denied the suggestion that on the day of incident after arrival of Tahir at the jhuggi of Rabia Amma, he alongwith Rabia Amma/PW-2A, Chhutwa and Tahir, altogether had consumed liquor. Instead PW-24 voluntraily deposed that it was himself alongwith Rabia Amma and Chhutwa who were sitting together at a distance of 2-4 paces from the said jhuggi. PW-24 further denied the suggestion that he alongwith Rabia Amma/PW-2A, Chhutwa and accused Tahir were highly intoxicated.

PW-24 further denied the suggestion that some altercation took place between Chhutwa and Tahir on 11/07/14 and he alongwith Rabia Amma/PW-2A and Anita had intervened in the said altercation and asked Tahir to leave the place and Tahir left that place immediately. PW-24 further denied the suggestion that after leaving of accused Tahir, Chhutwa created scene with him and Rabia Amma and due to that they had quarreled with Chhutwa and also beaten him with danda and he became unconscious. PW-24 further denied the suggestion that at the instance of Anita, we had taken the Chhutwa to the hospital for medical treatment to save themselves. PW-24 further denied the suggestion that he alongwith Rabia Amma after causing the injuries to Chhutwa had fled away from the spot. PW-24 further denied the suggestion that he had left Delhi after the incident as he had given merciless beatings to Chhutwa with the help of SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 31/50 Rabia Amma by a danda. PW-24 further denied the suggestion that accused had not inflicted any injury to Chhutwa by danda or accused had not threatened him or Rabia Amma.

PW-24 further denied the suggestion that he was not present at the spot therefore, PW-24 had not seen if any person was coming or going by the side of Sonu/PW-17. PW-24 further denied the suggestion that he had also not seen Sonu/PW-17 coming.

PW-24 admitted that there was no electricity pole at the gate which was situated near the jhuggi. But He clarified that there was sufficient light coming from railway station. PW-24 admitted that injured was not shifted by the rickshaw of Sonu,however, it was battery rickshaw of someone else and the same was arranged by Sonu. PW-24 admitted that Sonu was not a driver of battery rickshaw. PW-24 further denied the suggestion that he alongwith Rabia Amma had not shifted the injured to hospital. PW-24 further denied the suggestion that only Sonu and Anita took injured to the hospital.

PW-24 further denied the suggestion that that no article was lying at the spot. PW-24 further denied the suggestion that that danda has been planted upon the accused. PW-24 further denied the suggestion that I had not stated anything to the police and he had merely signed his statement. PW-24 further denied the suggestion that he, Rabia Amma and Anita had falsely implicated accused to save themselves.

48. Likewise, during her examination in chief , PW-2A, Ms. Rabia Amma deposed that on 11.07.2014 at about 9/9:30 pm, she was sitting inside the parcel gate with Gulab/PW-24 and deceased Chhutwa. PW-2A further deposed that in the meantime, SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 32/50 accused Tahir also came there. Like PW-24, PW2A too correctly identified the accused in court .PW-2A further deposed that Chhutwa was taking meal. Accused Tahir told Chhutwa to return his money which he had taken but Chhutwa replied that he had not taken any money. On this, accused Tahir started abusing Chhutwa. Consequently, Chhutwa also abused him. Accused Tahir picked up a danda lying there and started beating Chhutwa. PW-2A further deposed that she and Gulab tried to save Chhutwa from accused Tahir. PW-2A further deposed that Accused Tahir told them to flee away, otherwise they would be killed. Thereafter, they went towards parcel gate. PW-2A further deposed that Accused Tahir assaulted Chhutuva mercilessly with danda. Consequently, Chhutuva became unconscious and thereafter accused Tahir had fled away from there.

PW-2A further deposed that they saw Chhutwa was lying unconscious and was bleeding from his head and mouth. PW-2A further deposed that Gulab/PW-24 called Sonu/PW-17 with his battery operated rickshaw and they took Chhutwa in that rickshaw to the hospital where he was declared dead.

PW-2A further deposed that Chhutwa expired due to beatings given by accused Tahir in the abovesaid manner. PW-2A further deposed that she can identify the danda, if shown to her used by accused Tahir while assaulting Chhutwa. And she correctly identified the same and has stated that "ISSI SE TAHIR NE CHHUTUVA KO MARA THA". The said danda is Ex.

PW2/P1.

49. During her cross examination by Ld counsel for accused PW-2A/ Rabia Amma admitted that there was no other present besides herself, deceased Chhutwa and Gulab/PW-24, SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 33/50 when Chhutwa was taking meal inside the parcel gate. She further deposed that when she was asked by accused Tahir to leave the spot, she and Gulab/PW-24 had gone at a distance of about 10 paces. PW-2A further clarified that the spot is a thoroughfare, but occurrence had taken place inside the room which is not a thoroughfare. PW-2A further clarified that parcel room is a government building and she is residing there in a jhuggi situated neare Parcel room alongwith her grand-daughter (the daughter of her daughter) and her son-in-law Govind. During her cross examination by Ld counsel for accused PW-2A/ Rabia Amma admitted that she did not call any public person to the help deceased Chhutwa. But PW-2A further clarified that there was no police official from Railways near the spot or the place where she was standing on that day and time. PW-2A further clarified that there was no official from the Railway Parcel present near the spot that day and time. PW-2A further clarified that she reached near Chhutwa after about 5 minutes of leaving that place by accused tahir.

PW-2A further deposed in her such cross examination that Deceased was removed from the spot to Lady Harding Hospital in a battery operated rickshaw after about 30 minutes. PW-2A further admitted that battery rickshaw could not reach exactly near the spot as such battery rickshaw was parked at a distance of about 20 feet from the spot which was called by Gulab/PW-24. PW-2A further clarified that when Gulab had gone to call the rickshaw, I was alone at the spot with Ghhutua.

PW-2A further deposed that she and Gulab left the hospital at about 1:30 am. Till she remained in the hospital, she did not see any police official there. Sonu/PW-17 left the hospital SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 34/50 immediately after dropping Chhutwa at the hospital.

PW-2A further deposed that the police officials met her on the next day in the morning at about 10/11 am of the incident. Police officials made enquiries from her about the manner of incident, weapon of offence used by accused in hitting Chhutwa etc. PW-2A further deposed that she had stated to the Police that accused had assaulted deceased with danda. PW-2A further deposed that when she had tried to save Chhuta, she was pushed by the accused (and there is court observation by court that the witness has shown the same by gesture).

PW-2A further admitted that accused had left the danda at the spot.

PW-2A further deposed that police officials had noted down her statement on the same day when she was examined. PW-2A further deposed that subsequent to that day also, she was enquired by the police officials and was called in the police station also. PW-2A further deposed that she had put her thumb impression on the documents and same was not blank. PW-2A denied the suggestion that she had put her thumb impression on the blank papers. PW-2A further denied the suggestion that she is a stock witness of the police. PW-2A further clairied in this regard that it was the first time that she deposed in a Court. PW- 2A further denied the suggestion that she is deposing falsely only to involve the accused in the present case.

50. Further having regard to nature of offence and the manner in which it is alleged to be committed , it would be fruitful to note the relevant expert evidence at this stage.

51. PW18 Dr. B.L. Chaudhary and PW23 Dr. Rahul Band are two important expert witnesses. They deposed that on SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 35/50 15.07.2014, they conducted the postmortem on the dead body of Chhutwa @ Bittoo S/o Shatrughan, aged about 25 years male on the request of the IO Inspector Sanjay Singh. The dead body of deceased was identified by its relatives. The dead body received wearing cream colour T-shirt, black trouser and blue underwear. T-shirt was stained with blood stains both on the front and back side. Underwear was soiled with fecal matter. 51.1. They further deposed that on the external examination, the following ante-mortem injuries were found :-

".........1. Lacerated wound of size 2x0.4 cm x scalp deep, obliquely present over right parietal region, lower end directed posteriorly and inferiorly, present 10 cm above tragus of right ear.

2. Lacerated wound of size, 1 x 0.2 cm x skin deep, present over lateral aspect of size external ear over antihelix.

3. Lacerated wound of size 0.9 x 0.2 cm x skin deep, present over lateral aspect of right external ear over helix.

4. A reddish curved abrasion of size 0.9 x 0.1 cm present 2 cm above and lateral to lateral angle of left eye.

5. A reddish abrasion, curved of size 0.8 x 0.1 cm, present over upper eyelid of left eye.

6. Lacerated wound of size 3 x 0.5 cm x skin deep, obliquely placed present over left cheek, lower end directed inferolaterally, inferior end present 2.5 cm lateral to left angle of mouth.

7. Lacerated wound of size 2.7 x 0.5 cm x skin deep, present parallel and 0.5 cm medial to Injury No.6.

8. Abrasion, reddish in colour of size 3 x 0.2 cm, present obliquely over left cheek, lower end directed inferolaterally, inferior end 2 cm above and front of left angle of mandible.

9. Reddish coloured abrasion, 2 x 0.2 cm, present parallel and 0.5 cm in front of Injury No.8.

10. Reddish coloured abrasion, 1 x 0.5 cm, present 0.5 cm in front of lower end of Injury No.9.

11. Reddish coloured abrasion of size 1 x 0.5 cm, present on inner side of right angle of mouth.

12. Reddish coloured abrasion, 3 x 0.4 cm, present horizontally over right side of chin, 3 cm below right angle of mouth.

13. Reddish coloured abrasion of size 1.5 x 0.4 cm present 1 cm below Injury No.12.

14. Lacerated wound of size 2 x 1 cm x skin deep, present on lower margin of right side mandible, 4 cm lateral to midline.

15. Lacerated wound of size, 1 x 0.5 cm x skin deep, present 2 cm lateral to Injury No.14.

16. Bluish red contusion of size 6 x 4 cm, present over superolateral aspect of left shoulder.

17. Bluish red contusion of size 18 x 16 cm, present over medial posterior and lateral aspect of left arm just above elbow joint.

18. Multiple reddish coloured abrasions, varying in size from 0.7 x 0.6 cm to 0.2 x 0.1 cm, present over knuckles and first interphalangiel joints of left hand.

19. Lacerated wound of size 1 x 0.5 cm x skin deep, present over thenar eminence of left hand.

20. Bluish red contusion of size 3 x 1 cm present over superolateral aspect of right shoulder.

21. Bite mark (contusion), reddish, patterned like 'rounded shape' of size 2.3 x 2 cm, present over lateral aspect of right arm, 6 cm below tip of acromion process.

22. Curved lacerated wound of size 5 cm x 1 cm x skin deep, present over lateral aspect of right arm, 10 cm below tip of acromion process.

23. Bluish red contusion of size 18 x 9 cm, present on posterior and lateral aspect of right arm, just above elbow joint.

24. Bit mark (contusion), reddish, patterned like 'rounded shape' of size 2.3 x 2 cm, present over posterolateral aspect of right forearm, 11 cm above wrist joint.

25. Lacerated wound of size 1.2 x 1 cm x skin deep, present 1 cm medial to Injury No.24.

26. Abrasion, reddish in colour of size, 1 x 0.5 cm, present over lateral aspect of right hand at base of thumb.

27. Lacerated wound of size 1.5 x 0.5 cm x skin deep, present over posterior aspect of proximal phalynax of middle finger of right hand.

28. Reddish contused abrasion of size, 3 x present over posterolateral aspect of lower end of neck on left side, 7 cm lateral to midline.

29. Bluish red contusion of size 5 x 2.8 cm, present horizontally on lateral aspect of left side of chest, 10 cm below from anterior axillary fold.

30. Bluish red contusion of size 4.5 x 2.8 cm present just below and parallel Injury No.29.

31. Multiple bluish red contusions varying in size from 8 x 3 cm to 11 x 3 cm, present over right side of back overlying 4th to 9th rib.

32. Abrasion, reddish in colour of size 2 x 1 cm present over midline back overlying L1 vertebra.

33. Lacerated wound of size 2 x 0.5 cm x skin deep, present over front of right leg, 18 cm below tibial SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 37/50 tuberosity.

34. Bluish red contusion of size, 12 x 10 cm, present over front of left knee.

35. Multiple reddish abrasion varying in size from 3 x 0.5 cm to 0.5 x 0.4 cm present over front and lateral aspect of lower half of left leg....."

51.2. They further deposed that during internal examination, following injuries were found :-

".....Subscalpal extravasation of blood in the area of size 3 x 2 cm present in left parietal region. Skull and vertebrae were intact. Thin layer of subdural hemorrhage present on left side. Subarchnoid hemorrhage was present on left cerebral hemisphere. Brain matter was congested and oedematous, flattening of gyri and obliteration of sulci was present. Fracture of 4th rib was seen in mid axilary line with extravasation of blood in surrounding tissues, extensive extravasation of blood was present underlying on 4th to 10th ribs on right side lateral aspect. Plural cavity contains about 800 ml of blood on each side. Contusion of lungs was seen involving lower lobe of right lung on lateral and posterior aspect and posteromedial aspect of lower lobe of left lung. Rest of lung appeared pale. On cut section contusion hemorrhagic exudate oozing out. In abdominal cavity contains about 500 ml of free blood with clots. Liver showed laceration of size 2 x 0.5 cm and 2.5 x 0.5 cm both parenchymal deep on antero-superior aspect of right lobe of the liver. ...."

51.3. They further deposed that after postmortem they had opined that the cause of death was shock consequent upon multiple injuries to head and chest due to blunt force impact. Injuries to vital organs brain and lungs were sufficient to cause death in normal course collectively or individually. However, viscera was preserved to rule out any intoxication, blood in gauze piece for cross matching and swabs from white marks alongwith control swabs. All articles and viscera were sealed and handing over to Investigating Officer. The above said clothes i.e. Trouser and T-shirt of deceased were also sealed and seized and were handed over to the IO. All injuries were ante-mortem in nature and fresh in duration. Their detailed post-mortem report in this SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 38/50 regard was Ex.PW18/A. 51.4. They further deposed that on 20.08.2014, IO submitted an application alongwith copy of PM record and FIR of the present case for giving subsequent opinion regarding weapon of offence. IO also produced a sealed cloth pullanda duly sealed with the seal of NBKRM-II (14 in number seals) mentioning detail of the present case on cloth pullanda. The above said pullanda was obtained and found one wooden stick (danda i.e. handle of fawda) having reddish brown stains at three places on surface of danda and colour stains also seen on the surface of the danda and we had put our signature on the danda. They examined the above said weapon of offence as well as the injuries mentioned in the PM report and opined that the injuries were mentioned in PM report could be possible by said weapon or similar weapon except Injury No.21 and 24 which were caused by bite. Their details of subsequent opinion was Ex.PW18/B. 51.4. During cross examination such PW18 Dr. B.L. Chaudhary deposed that Ex.PW18/A was prepared by Dr. Rahul Band / PW23 in his handwriting and he took about 30 minutes to complete such documents. PW18 further deposed that he measured the injuries with the help of inch-tape. He further deposed that depth of wounds were measured by recognizing the involvement of tissues those were involved in the injury. He further deposed that after examination of injury of the dead body they gave the opinion about the nature and type of injuries. He further deposed that after examination in this way in the present case, injuries were found to be result of blunt force impact. He admitted that accused was not produced at that time and as such he did not examine the same. But he further admitted that all the SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 39/50 injuries mentioned in his examination in chief except injury No.21 & 24 may be received due to fall from height. He further deposed that PW18/B was prepared by PW18 on his computer and same was under his control. He further deposed that they took about one and half hour to conduct the postmortem and to prepare Ex.PW18/A. He denied the suggestion that such report Ex.PW18/B was prepared at the instance of IO. He further denied the suggestion that at the time of such postmortem of dead body of victim in question, he was not present in the mortuary. He further denied the suggestion that he signed such PM report later on.

52. Likewise during his cross examination by learned counsel for accused, PW23 Dr. Rahul deposed that the postmortem on the dead body of deceased was conducted with the help of Dr. B.L.Chaudhary. No other associate was with them while postmortem.

52.1. Further the following questions were put to PW23 and he answered the same. Same is reproduced herein below:-

".......Q. How you had ascertained that the injuries were sufficient to cause death.

Ans. During internal examination there was intracranial hemorrhage in the form of sub arachnoid and subdural hemorrhage associated with brain congestion and oedema. Also in chest cavity there was 800 ml of blood on either side and right lung was contused. These injuries to vital organs like brain and lung are sufficient to cause death collectively or individually in ordinary course of nature. ....."

PW23 further deposed that it took about 2-3 hours to complete the postmortem of the deceased. PW23 denied the suggestion that false opinion with regard to opinion of weapon has been given at the instance of IO to support PM report.

53. On a careful analysis of the evidence of these two important eye witnesses PW-24 and PW-2A, as per the SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 40/50 prosecution, on whose testimony basically the case of prosecution stands, it can be seen that both such witnesses not only supported the prosecution, as also argued by learned Addl.PP for State, on all material particulars, but also supported each other version except some on minor details which is natural in case of truthful, natural witness, which is a settled law now. The same gives further credibility to the story of prosecution. Further Court has to be mindful of the fact of poor social, economic background of PW2A and PW24 and that they are unfamiliar with legal world and came for first time in any Court proceedings. Both such witnesses in detail, in a natural manner described the place of incident, time of incident, the manner in which accused assaulted the deceased Chhutwa as well as the immediate motive of the same that accused was suspecting that such deceased had stolen his money. Even otherwise, it is settled law in a case of present nature when there is a clear and consistent evidence regarding commission of offence, the motive takes a back seat. Further, such PW24 and PW2A are natural witnesses. In fact, it is not even denied by the accused that such deceased or PW2A and PW24 are not known to him or that they did not know him. Further, the presence of PW2A and PW24 was also natural and consistent with the prosecution story. The deceased, the accused and these two witnesses were living nearby and were known very well to each other. Further, it can be noted that at the of his evidence in Court, PW24 deposed that he do not remember the exact date due to lapse of time which was also quite natural as the incident took place in July, 2014 whereas such witness was examined in Court after about 4 years in September, 2018. Further, such witness, it can be seen from his SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 41/50 job profile at the time of incident, was a reg picker as such it has to be noted that he was belonging to a lower economic strata and was living unauthorizedly in railway station area, therefore, it quite not unnatural for him to be afraid from police system and to find a new place of work in Gujarat in order to get away from such heinous offence which happened to take place in his presence.

54. Further, on analysis of his statement given to the Magistrate / PW22 u/s 164 Cr.PC viz-a-viz his deposition in Court, this Court do not find any material inconsistency. The statement given to the Magistrate is a short statement whereas during his evidence in Court, he has just elaborated the incident in detail. In any case, there is no contradiction between the two particularly including in view of the fact that in his original statement to the Police, based on which FIR was registered, he has already given all the details including the name of witnesses present as well as motive of crime and identity of accused as well as of the victim.

55. Further, it can be noted on analysis of evidence of such public witnesses that present accused was giving such merciless beating to deceased Chhutwa that PW2A as well as PW24 tried to save Chhutwa. But present accused threatened them to leave otherwise he would also kill them. It means that at that time present accused was having the intention to kill such deceased Chhutwa that is why PW2A and PW24 tried to stop him and save Chhutwa. Further that is why present accused warned them of similar consequences with them. Further, such accused is well body built up, which is also noted during his presence in Court. It is further deposed by PW24 that present accused did not stop and SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 42/50 continued to beat such Chhutwa till such Chhutwa became unconscious and thereafter only present accused left from there. This act of accused,which is proved on record, speaks for itself. In fact, the dead body,blood, beating marks, and PM report also speaking a lot about the act and intention of accused. Further, such deceased Chhutwa was bleeding from head and mouth and as such had to be immediately taken to hospital.

56. In this regard, it may also be noted that PW-24 further denied the suggestion that accused had not inflicted any injury to Chhutwa by danda or accused had not threatened him or Rabia Amma.

57. For the sake of record, it may also be noted that infact such PW-24 denied the suggestion that no such incident as mentioned by him in his complaint as ever occurred on 11/07/14. PW-24 further denied the suggestion that on the day of incident after arrival of Tahir at the jhuggi of Rabia Amma, he alongwith Rabia Amma/PW-2A, Chhutwa and Tahir, altogether had consumed liquor. Instead PW-24 voluntraily deposed that it was himself alongwith Rabia Amma and Chhutwa who were sitting together at a distance of 2-4 paces from the said jhuggi. PW-24 further denied the suggestion that he alongwith Rabia Amma/PW-2A, Chhutwa and accused Tahir were highly intoxicated.

58. Therefore, it can be concluded safely that although, the accused did not come prepare with any weapon etc. but then and there he caused a multiple injuries which were 35 in numbers, as such, in the considered view of this Court even if it is taken that death of the deceased is not caused with intention of causing death by such accused of the deceased Chhutwa, but, the manner SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 43/50 in which bodily injuries were caused, the force used to cause the same, number of the same and the part of body including the head on which such injuries are caused by the present accused, shows that such injuries are caused with intention which the accused knew to be likely to cause death of such deceased Chhutwa.

59. Further, in the background of such evidence of eye witnesses PW24 and PW2A, there is evidence of doctors / PW18 and 23 which correlates with the nature and the type of injuries and the danda used in causing the same by the accused upon the deceased Chhutwa. On analys of evidence of such PW18 Dr. B.L. Chaudhary and PW23 Dr. Rahul Band, it is clear, as also pointed out by learned Addl.PP for State, that cause of death was shock consequent upon multiple injuries to head and chest due to blunt force impact. Therefore, injuries to vital organs brain and lungs were sufficient to cause death in normal course collectively or individually. Therefore, even otherwise, it is held that the present accused had the intention of causing bodily injury which he actually caused and in view of such evidence of doctors and nature of injuries actually caused, it is held that such bodily injury which were intended to be inflicted by the present accused are sufficient in any case collectively, to cause in the ordinary course of nature death of the deceased Chhutwa. It may further be noted that as per evidence on record, all such multiple injuries were caused by the present individual person only.

60. At this sage it may be noted that this Court do not find force in the arguments of learned Amicus Curiae / learned defence counsel that it is the PW2A and PW24 who caused the death of the deceased Chhutwa. Infact, till such incident in SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 44/50 question, such deceased Chhutwa, PW2A, PW24 as well as present accused were living in the same vicinity and belonging to same lower income economic status and were living in or near such make shift unauthorized premises near the railway station. It is further clear from evidence available on record that they had a good relationship with each other and were even having liquors together earlier also. There was no motive at all for such PW2A and PW24 to cause such death. Further on perusal of cross examination, although suggestions to this effect were given to such witnesses but such defence taken by the accused held to be after thought.

In this regard, it can be noted that infact as many as three unconsistence defences are taken by the accused. Same can be seen on a perusal of cross examination of prosecution witnesses particularly PW2A and PW24. There is suggestion by the defence counsel that PW2A is deposing against the accused as she is a stock witnesses of police. The same is not only denied by PW2A, infact she further clarified that she deposing in Court for the first time. Still no evidence to contrary lead by defence. In any case, such suggestion from the accused side suggests that defence side is presuming and want the Court to believe that she is deposing against the accused as she is a stock witnesses. Such defence is inconsistence with another defence taken during cross examination, as noted above, that it is not the accused but such PW2A and PW24 who killed the deceased.

61. Further, on close analysis of cross examination of PW24 / complainant, it can be seen that a suggestion was given to such witnesses that he was not even present at the time of such incident, meaning thereby that taking still another inconsistence SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 45/50 defence, it is tried to convince the Court that PW24 is not the eye witness. Same is also inconsistence with the earlier defence noted above that it is PW24 with PW2A who killed the deceased in question.

62. Further, on analysis of PW2A and PW24, it can further be noted that both of them were further consistent in deposing regarding subsequent sequence of events after accused Tahir left the spot of crime after committing such offence, including the police proceedings which took place thereafter apart from taking such unconscious Chhutwa to the hospital in the e-rickshaw driven by PW17 / Sonu.

63. It may further be noted that a objection is taken by the defence that despite presence of one Anita, relative of PW2A, she is not examined as a prosecution witness. It is further claimed / argued on behalf of defence that infact in order to hide their misdeed, PW2A and PW24, at the instance of such Anita, took the deceased Chhotwa to hospital after beating him themselves.

It is already noted above that such defence is held to be after thought in the facts and circumstances of the present case. Further, it is settled law that it is a prerogative of the prosecution to chose its witnesses. Further in the present case when there are two natural eye witnesses PW24 and PW2A, non examination of such witnesses Anita, relative of PW2A, who was living with such PW2A is not of material consequence.

64. Further, in any case, it can be noted in this regard that no attempt is made by the defence to call and examine such Anita in his defence in order to substantiate the stand / defence taken by such accused.

65. It may further be noted that there is some discrepancy / SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 46/50 inconsistency when evidence of PW2A and PW24 is pitted the evidence of another public witness PW17. It is deposed by PW17 Sonu, who even otherwise did not support the prosecution (which is clear on bare reading of his evidence in Court) in contrast to PW24 and PW2A who deposed that they alongwith such PW17 took the deceased Chhutwa to hospital, that he / PW17 with the help of PW24 / Gulab, Anita and Aarti took the injured Chhutwa in an e-rickshaw arranged by such PW17. Further, he in his cross examination by learned counsel for accused stated that Gulab/PW24 was not present but PW2A, Anita and Aarti were present at the parcel compound and PW24 met them in near Sai Mandir only when they were taking injured to the hospital.

But as also argued by learned Addl.PP for State, it is held by this Court that in any case such PW17 is not an eye witness nor so claimed by him nor by prosecution. In fact, as per the prosecution case, as also deposed by such PW17, such PW17 helped in taking the deceased to the hospital. But even such PW17 admitted that accused Tahir whom he correctly identified in Court used to visit frequently at the place of incident. Further, in his cross examination he admitted that he left the place after the incident for fear of police implicating him in this case. Further from his evidence on record, it is clear that he is not supporting the prosecution case, but in any case his evidence / role in the present case was only in taking the deceased to the hospital in e-rickshaw which is not in dispute. Further, who alongwith such PW17 took the deceased to hospital after the incident also do not have much importance as in any case it is deposed even by this witness that ultimately PW2A and PW24 joined him while taking the injured Chhutwa to hospital.

66. Further as far as recovery of danda / weapon of offence is concerned, it is pointed out by learned counsel for accused that during her cross examination, PW2A admitted that accused has left such danda / such stick at the spot. Whereas as per the story of prosecution, which can be seen from the evidence of IO PW25 and other witnesses including PW24 was recovered later on at the instance of accused.

It is correct that such evidence / admission by PW2A in her cross examination is inconsistent the overall stand taken by the prosecution regarding recovery of such danda which was used to commit the offence in question by the accused. But having noted so, it is also be noted that the same witness PW2A and PW24 consistently stated that in any case accused has murdered the victim with such danda only and both of them correctly identified such danda in Court also. Further with lapse of time of about 4 years, it is quite possible that at the time of production of such danda in court at evidence stage, blood stains were no more visible.

67. As such, based on such facts and circumstances and material available on record particularly the evidence of PW2A Rabia Amma and PW24 Gulab read with expert evidence of PW18 and PW23, present accused Iliyass Mohammad @ Tahir Mohd. @ Iklass is held guilty for the offence of murder punishable U/s 302 IPC.

(II) Whether the case of the accused person falls under any of the exception provided U/s. 300 IPC?

68. On going through the material on record including the statement u/s 313 Cr.PC of accused, it can be noted that defence taken by the accused is that he is falsely implicated in present SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 48/50 case and someone else has committed the offence in question of murdering the deceased. In any case, it is not the defence of the accused himself that he falls under any of the exception to section 300 IPC.

69. But even otherwise on perusal of evidence on record particularly the evidence of PW2A and PW24 as discussed in detail above, it can be seen that both such witnesses deposed that as accused suspected that the deceased has stolen his money and such deceased Chhutwa has denied the same, therefore, as a result such accused committed murder of such deceased as held above. Further on scrutiny of such evidence of PW2A and PW24 read with exception-1 to the section 300 IPC, it cannot be said that such provocation of denial by the deceased that he has not stolen money of accused, was grave in any case. Further, as per evidence on record, it is the accused who came at the spot and started inquiry and questioning from the deceased, therefore, it is held that such provocation, which is not grave and sudden in present case, he is even otherwise sought by such offender / accused only. As such, it is held by this Court that such accused is not entitled to the benefit of exception-1.

70. Further, it is not the case of accused or the prosecution that such accused murdered the deceased in exercise of his rights of private defence. In fact, present accused was the aggressor. As such, his case is not even saved under exception-2 to section 300 IPC.

71. Further, accused is not a public servant therefore, exception-3 to section 300 is not applicable at all.

72. Further, as far as exception-4 is concerned although, on the basis of evidence on record as already discussed in detail SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 49/50 above, such murder is committed without premeditation, in the heat of passion upon a sudden quarrel, as it is the evidence on record that accused did not come prepare with any arms / weapon of offence and lifted then and there a wooden danda in question and started hitting the deceased with the same. But, in any case, it was not a sudden "fight" which terms contemplates that both the parties participating in the act, because as per evidence on record, it was the accused who was hitting repeatedly such deceased Chhutwa and such deceased Chhutwa did not attack. Further, under these circumstances, even otherwise this Court holds that such offender / accused has taken undue advantage, further, he has hit such deceased Chhutwa in cruel manner which is also reflected that he did not stop and kept hitting him and caused as many as 33 injuries on such Chhutwa and stopped only when such deceased Chhutwa became unconscious.

73. Further on bare reading of exception-5 to section 300, it is clear that same is not applicable at all under the facts and circumstances of the present case.

74. Thus, it is held that case of accused is not saved / covered by any of exception to section 300 IPC.

Announced in the open (NAVEEN KUMAR KASHYAP) Court on 07/12/2021 ASJ-04(Central)/THC/Delhi SC No.: 28232/2016 State Vs. Iliyas Mohd. @ Tahir Mohd. Page No. 50/50