Delhi District Court
State vs 1. Ankit Aggarwal on 23 August, 2019
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST-02), DELHI.
Sessions Case No. 57728/16
Assigned to Sessions on 19.12.2011
FIR No. 283/2011
Police Station Janak Puri
Under Section 302/323/341/34 IPC & 27/54/59
Arms Act
Charged Under Section 302/323/341/34 IPC
State Vs 1. Ankit Aggarwal
s/o Late Vinod Kumar Aggarwal
R/o RZB-86, Bindapur Extn.,
Uttam Nagar, New Delhi
2. Pankaj @ Ishu
s/o late Pawan Kumar,
R/o RZB-85, Bindapur Extn.,
Uttam Nagar, New Delhi
3. Aman Sharma,
s/o Sh. Virender Kumar Sharma
R/o RZB-119, Bindapur Extn.,
Uttam Nagar, New Delhi
Arguments heard on 09.08.2019
Date of Judgment 23.08.2019
Final Order Convicted
Appearance(s) Sh. Ram Pyara, Ld. Addl. PP for the State.
Sh. A.K. Mishra, Ld. counsel for accused Ankit Aggarwal
Sh. Deepak Sharma, Ld. Counsel for accused Pankaj.
Dr. Chaudhary Shamsuddin, Ld. Counsel for accused Aman
JUDGMENT
(A) PRELUDE :
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C.
in respect of FIR No. 283/11 u/s 302/341/323/34 IPC and 27/54/59 Arms Act of PS Janak Puri was committed to the SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 1 of 61 Ld. District & Sessions Judge (West), Delhi vide order dated 13.12.2011 of the Ld. MM.
(B) PROSECUTION VERSION:
2. The brief factual matrix as per the case of the prosecution is that :
Accused Ankit Aggarwal, Pankaj and Aman Sharma were put on trial on the allegations that all three accused persons in furtherance of their common intention wrongfully restrained Ajay Kumar and Bharat, caused hurt to Ajay Kumar and committed the murder of Bharat by stabbing him and thereby they were charged for offences punishable under section 302/341/323/34 IPC.
The duty officer of PS Janak Puri received information from duty Ct. Virender Singh DDU Hospital regarding admission of one person namely Bharat having stabbing injuries who was brought by his friend Ajay and the said person Bharat had been declared brought dead by the doctor. The said information was reduced to writing vide DD No. 26A dated 02.09.2011. Thereafter, vide DD No. 26A dated 02.09.2011, Inspector Prabhu Dayal, SI Sikander Roy and HC Rajeev Kumar rushed to DDU hospital. Upon reaching the DDU hospital, Inspector Prabhu Dayal obtained MLC of the deceased Bharat whose dead body had been sent to mortuary. He met Ajay Kumar and made enquiries from him and recorded his statement wherein he alleged that on 02.09.2011 after taking leave from the shop where he was working, he reached near nala near his colony where he met with his friend Bharat whereafter both of them went to Sarvodya School, A-2 Block Janakpuri where they met one boy named Deepak from whom he SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 2 of 61 was to take Rs. 500/-. When he demanded his Rs. 500, Deepak refused to return on which, Ajay snatched his mobile phone make Sony Erricson and he gave the said mobile phone to his friend Mosim who was studying in 11 th class in the said school and both Ajay and Bharat returned to their colony. It is further alleged that between 1.30 pm and 2.00 pm, both Ajay and Bharat reached near the said school and Ajay called Mosim from the phone of Bharat and Mosin informed him that Deepak, his mother and two- three boys had come to his class and he handed over the mobile phone to Deepak. Thereafter, Ajay went inside the school to meet Mosin whereas Bharat remained outside. After meeting Mosin, Ajay informed Bharat that two-three boys were in search of him and Bharat as informed by Mosin. Thereafter, while both of them were returning to their colony on foot, at about 2.30 pm when they reached in front of Shanti Home Guest House, A-1 Block Janak Puri, three boys who were on a red colour Pulsar motorcycle of whom one was Ankit and second was Aman and third was driving the motorcycle. Those three boys stopped them. Ankit caught him and Aman caught Bharat and they started quarreling and beating them. During quarrel, both Ajay and Bharat tried to rescue themselves and run away, all three boys chased them. Ankit caught Ajay and Aman caught Bharat near Garg Nursing Home. Thereafter, Aman took out a knife from the pocket of his pant and hit Bharat thrice, at his chest, secondly on his left hand near wrist and thirdly, Bharat was hit on his left rib side. Bharat started screaming loudly and in the meantime, Ajay managed to rescue himself and ran towards his colony and called few persons from his colony, however, all three boys SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 3 of 61 had already left the spot. Thereafter, he alongwith one Gauri took Bharat to DDU hospital in a TSR where doctor declared him brought dead. On the basis of this statement, Insp. Prabhu Dayal prepared rukka and got the FIR registered U/S 302/34 IPC through SI Sikander Roy. IO called the Crime Team at the spot. Inspector Prabhu Dayal directed Ct. Mukesh to remain at the Mortuary while he alongwith HC Rajeev Kumar and complainant went to the spot and prepared the site plan at the instance of complainant.
Therefore, on 03.09.2011, on receipt of secret information, accused Ankit Aggarwal was apprehended at Uttam Nagar Bus terminal. Similarly, on 04.09.2011, accused Pankaj was apprehended at Dhaula Kuan and on 05.09.2011, accused Aman was apprehended. The post mortem on the body of deceased was got conducted and thereafter, body was handed over to his relatives. As per the PM report, the cause of death is due to haemorrhagic shock subsequent to stab injury to kidney. Injuries were sufficient to cause death in ordinary course of nature.
After the post mortem, the exhibits were seized and taken into possession by the IO. The clothes worn by the deceased were handed over by the doctor which were seized and taken into police possession. Exhibits were sent to FSL Rohini.
Thereafter, IO recorded statement of witness under Section 161 CrPC, obtained the reports as well as collected the other relevant evidence and prepared the charge sheet U/S 173 (2) Cr.P.C., which was filed in the court for the offences u/s 302/323/341/34 IPC for judicial verdict. (C) THE CHARGE:
SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 4 of 613. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP and accused persons, vide order dated 30.07.2012, found a prima facie case for the offence punishable under section 302/341/323/34 IPC against all the accused persons. Charge was accordingly framed to which all the accused persons pleaded not guilty and claimed trial.
(C) PROSECUTION EVIDENCE :
In order to prove its case, prosecution has examined in as much as 26 witnesses.
4. PW-1 is Sh Ajay Kumar. He is the complainant as well as the eye witness to the incident. He deposed that on 02.09.2011, he alongwith his friend Bharat went at school, situated in Janak Puri at about 12.30 noon as he had to take an amount of Rs. 500/- from Deepak. He demanded his amount but Deepak did not give the amount and on this he had taken the mobile phone make Sony Ericsson from Deepak and he gave the said mobile phone to one of his friend namely Mohsin who also used to study in the same school in class 11th. Thereafter, they both went to their residence. He further deposed that again at about 1.30 pm, they again went to the school. He had a talk with Mohsin and Mohsin stated to him that Deepak, his friends and mother were searching him. Mohsin also stated toh im that these persons had taken mobile phone from him. Thereafter, he alongwith Bharat proceeded from the school towards their residence. At about 02.00 pm, when he alongwith Bharat reached at Shanti Home, Janak Puri, three SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 5 of 61 persons namely Ankit, Aman and Ishu came on a red colour Pulsar motorcycle and they all started quarreling with them. They both started running. At that time, Ishu was on motorcycle. One of the accused uttered to apprehend them and on this third accused chased them on his motorcycle and got them at Giri Nursing Home. Aman caught hold of Bharat and Ankit caught hold of him. Accused Aman had taken out a knife and gave three stab injuries on the person of Bharat, first injury was on the chest, second on the hand and third near ribs. Thereafter, all three accused ran away from there on the same motorcycle. He further deposed that he went from there towards his colony and called Gauri. He alongwith Guari had taken injured Bharat in a TSR to DDU hospital. In the hospital, Bharat was declared brought dead by the doctor. He further deposed that when he had taken injured Bharat to the hospital in the TSR, blood also came on his clothes. He produced his pant, shirt and Baniyan before the police official who had taken the same into possession vide memo Ex.PW1/B. He further deposed that on 03.09.2011, at about 3.30 pm, he went at PS Janak Puri regarding progress of the case where he was informed by the IO that he had received secret information regarding presence of accused Ankit Aggarwal at Uttam Nagar Bus Terminal near Metro Station. Thereafter, he alongwith Inspector Prabhu Dayal and 2-3 police officials reached at Uttam Nagar Bus Terminal where accused Ankit Aggarwal was apprehended and he was interrogated by the police officials and police officials recorded his disclosure statement Ex.PW1/C and prepared arrest documents. He correctly identified accused Ankit in the court.
SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 6 of 61He further deposed that on 06.09.2011, at about 10.55 am, he went at the PS where he identified accused Aman Sharma who was in the custody of Inspector Prabhu Dayal and he stated before the IO that he was the same person who on 02.09.2011 stabbed Bharat in his presence. He correctly identified this accused in the court. He further deposed that on 21.09.2011, at about 4.45 pm, he was present at his residence, one HC whose name he did not remember came at his residence and he alongwith him went to the place of occurrence i.e A-1 Block, main Road, Janak Puri, New Delhi and at his pointing out, another police official took measurement and prepared rough notes. He correctly identified his clothes which are Ex.P-1.
5. PW-2 is Bittu Singh. He is the father of deceased Bharat.
He identified his son's body vide identification statement Ex.PW2/A and received the dead body vide receipt Ex.PW2/B.
6. PW-3 HC Sanjeev Kumar. He has proved the present FIR as Ex.PW3/A and endorsement on the original rukka as Ex.PW3/B. He also proved the DD No. 30A as Ex.PW3/C.
7. PW-4 is HC Amar Singh. He is a formal witness being MHC(M). He has proved the entries made with regard to deposit of sealed parcels, sample seal and motorcycle No. DL1SU3504 alongwith its keys as Ex.PW4/A to Ex.PW4/D. He has also proved the entry vide which exhibits were sent to FSL Rohini as Ex.PW4/E.
8. PW-5 Sh. Ravinder Kumar, is the maternal uncle of the SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 7 of 61 deceased Bharat. He identified the dead body in DDU Mortuary and his identification statement is Ex.PW5/A.
9. PW-6 is SI Mahesh Kumar. He deposed that on 21.09.2011, he was posted as Draftsman in Crime Branch. On that day, on the request of Inspector Prabhu Dayal, he prepared scaled site plan on the basis of rought notes and measurements which is Ex.PW6/A.
10. PW-7 is Sh. Virpal Singh. He deposed that during September, 2011, he was working as Security Guard at Shanti Van Guest House. On 17.09.2011, at about 2.30- 3.00 pm, he heard the commotion from outside, out of curiosity, he went outside the gate, where he was on duty and saw some persons running towards left side leading to Pankha Road and some were running straight forward.
11. PW-8 is Sh. Vijay Shankar, the then Relieving Judge (West). He deposed that on 09.09.2011, an application for TIP of accused Pankaj @ Ishu was marked to him by Ld. ACMM (West). Same has been proved as Ex.PW8/A. The said application was adjourned for 13.09.2011. On 13.09.2011, he went to Tihar jail for conducting TIP, however, accused Pankaj @ Ishu refused to join the TIP proceedings. The TIP proceedings is Ex.PW8/B.
12. PW-9 Dr. Nishu Dhawan, CMO, DDU hospital deposed on behalf of Dr. Deep Shikha as she had worked under her supervision. She deposed that on 02.09.11, one patient named Bharat s/o Bittu Singh was brought by one Ajay in unconscious state. She examined the patient and declared SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 8 of 61 him brought dead. MLC is Ex.PW9/A.
13. PW-10 is Dr. Rita Baruah, DDU Hospital. She has deposed that on 02.09.2011, a patient Bharat was brought to the casualty in an unconscious state. Patient after examination was declared brought dead. Body was packed and sent for post mortem examination. Dr. Shikha, Sr. Resident had prepared the MLC in her presence. She identified her signatures. MLC is Ex.PW10/A.
14. PW-11 Rajesh Kumar has deposed that 03.09.2011, he took 09 photographs of the dead body of deceased Bharat. Photographs are now Ex.PW11/A-1 to A-9. Negatives of photographs are Ex.PW11/B-1 to B-9.
15. PW-12 is HC Virender Kumar who deposed that on 02.09.,2011, he was posted at PS Hari Nagar as Ct. On that, he was on duty at DDU hospital as Duty Constable. At about 3.30 pm, Bharat s/o Bittu Singh was got admitted in hospital by his friend Ajay Kumar in injured condition vide MLC No. 17876 and the doctor concerned decleared him as brought dead. He sent the information to the PS Janak Puri and same was reduced into DD No. 26-A. The doctor concerned had taken the banian and shirt of deceased Bharat and sealed it with the seal of CMO DDU Hospital and handed over to him. He handed over the sealed pullanda to Inspector Prabhu Dayal who seized the same vide seizure memo Ex.PW12/A.
16. PW-13 Ct. Mukesh is a formal witness. He had safeguarded the dead body of deceased in DDU Mortuary SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 9 of 61 on 02.09.2011. On 03.09.2011, at around 12-12.30 noon, father and maternal uncle of deceased identified the dead body. IO got photographed 09 photographs of the deceased and prepared the inquest papers. Post mortem of the dead body of deceased was got conducted by the IO.
17. PW-14 Mohd Mohsin deposed that he was residing at Jhuggi No. 68/121, J.J.Colony, Pankha Road, Uttam Nagar, Delhi. The Jhuggi No. 68/121 and H.No. A-801 are situated in front of each other. At the time of incident, he was residing in Jhuggi No. 68/121. He further deposed that on 02.09.2011, he was studying in Class XIth in Govt. Boys Sr. Secondary School, A-2 Block, Janak Puri, Delhi. On that day, at about 01:00 PM or 01:15 PM, he was present in my Class room. One Ajay, who was residing near his house, came to him and handed over one Soni Ericcson Mobile phone of black colour to him. While handing over the said mobile Phone, he told him that after some time, he will return and take the said Mobile phone from him. After about 15-20 minutes, one Deepak who was also studying in the same school, came to him alongwith his mother and brother. He told him that the said phone belongs to him and Ajay had snatched the said Mobile Phone from him. He asked him to return the phone and thereafter, he handed over the said phone to Deepak. After sometime, he received phone call of Ajay and he told that he was coming to take the mobile phone. He informed him that he had already given the said phone to Deepak. On this, Ajay asked him to come on the gate of school but he refused to reach at the gate of School. After about 15-20 minutes, Ajay came to him and after confirming and making inquiry SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 10 of 61 from him, he returned back.
He further deposed that in between the period of his refusal to Ajay of his coming at the gate of the school and arrival of Ajay in the classroom, one Ankit came outside his classroom. Ankit was calling him to came out, but he refused to come out as Teacher was already taking class. Ankit stayed outside his classroom for about 5-10 minutes and thereafter, he left.
He received the phone call of Ajay after coming of Ankit. During the conversation with Ajay, he informed him that he handed over the Mobile Phone to Deepak. He also informed Ajay that Ankit was searching and asking for him. Ajay came to him after about 15-20 minutes of coming of Ankit. At that time also, he informed Ajay that Ankit was searching him and thereafter, Ajay left. He had told the abovesaid facts to police official after about 15 days of the incident and thereafter, police official recorded his statement. He further deposed that he knew accused Ankit as he was studying in the same school, two years prior to 2011. He correctly identified the accued Ankit in the court.
18. PW-15 Mohd. Gauri deposed that he is a permanent resident of Mawana, Distt.Meerut, U.P. He deposed that he did not remember the date, month and year of the incident. However, it had taken place about 5 years back. At the time of incident, he was doing the business of selling of clothes at Pankha Road, J.J.Colony, Uttam Nagar, Delhi. He further deposed that on the date of incident, at about 01:30 PM - 02:00 PM, he was standing at the Chowk of J.J. Colony, alongwith his friend Sonu and Ajay. In the meanwhile, some persons came and informed that one boy had received knife injuries and the said persons also SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 11 of 61 informed that the said boy was at the shop of Doctor. He further deposed that they reached at the clinic of said doctor, where the injured was lying and it was situated at a distance of about 100 Mtrs. from the place where they were standing. Injured was earlier known to him and his name was Bharat. Some body part was excluded from his abdomen and he was bleeding. Thereafter, he alongwith Ajay took Bharat to DDU hospital, where he was declared "brought dead" by the doctor. He stayed there for about 15-20 minutes and thereafter, he left for his house. He further deposed that his vest got blood stained. When they were taking Bharat to the hospital, he tied his shirt on his wound. Clothes of Ajay were not got blood stained.
He further deposed that police firstly met in the hospital on the same day and made inquiries from him for about 2-3 minutes, but they had not recorded those inquiries on any paper. After about 15-20 days of the date of incident, police called him at PS Janak Puri. The police official asked him to become a witness in the present case, but he refused to become a witness. Police did not record his statement.
19. PW-16 Sh Vishal Gupta deposed that earlier he was having Kabari Shop at Bindapur Extension, Uttam Nagar from 2008 to 2013-2014. That shop was closed 3-4 years back. He further deposed that police met him in connection of this case in 2011. Police asked him about one Ankit. He told them that he knew Ankit who was residing in his neighborhood. He correctly identified accused Ankit in the Court room. He also knew accused Aman who was also correctly identified by him in the Court. Accused Aman SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 12 of 61 sometime visited his Kabari shop. As per his recollection accused Aman did not keep anything at his Kabari shop. He further deposed that when police met him in connection of this case they inquired from him about accused Aman and Ankit and police had also informed that they had committed a murder. He told to the police that he does not know about any murder. Police asked him whether accused Aman had kept any article in him shop then he asked police about the specific articles then police asked him whether Aman kept any knife in his Kabari shop. He told to police that accused Aman had not kept any knife with him in the Kabari shop. Police had recorded his statement which he told to police.
This witness was declared hostile by Ld. State Counsel and cross examined by him wherein he denied the suggestion that on 31.08.2011, at about 10 am, accused Aman had come to his shop and kept one knife in green knife cover in his shop.
20. PW-17 is Sh Rajat Gupta who deposed that he studied class Xth from Govt Boys Sr Sec School A-1 Block, Janak Puri, Delhi. He knew one Ajay who was also student of above said school prior to two years of his study in class Xth. Vishal Gupta is his brother and earlier he was having a Kabari shop. He further deposed that he knew accused Ankit Aggarwal, who was residing in his neighborhood. He correctly identified accused Ankit in the Court room. He further deposed that he knew him as he was residing in his colony where he was residing earlier i.e RZA-34, Partap Garden Uttam Nagar. He also knew him as he was also studying the above said school earlier to him. He deposed SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 13 of 61 that in year 2011, date and month he did not remember once police came to his house and enquired about Ankit. Police only enquired that where Ankit was residing. Police did not record his statement. After seeing in the Court room witness states that two persons present in the Court were also residing in the same locality. On asking their names, they told their name as Pankaj and Aman (who are accused in the present case). He further deposed that he never informed Ankit about the location of Ajay. He was declared hostile by Ld. State Counsel and was cross examined. During cross examination, he denied the suggestion of Ld. State Counsel that on 02.09.2011 at about 2.00 pm Ankit and Aman came to school while searching Ajay.
21. PW-18 HC Mukesh deposed that on 02.09.2011, he was posted at PS Janak Puri as Constable and on that day, he was deputed by the IO to safeguard the dead body of Bharat at DDU mortuary. He further deposed that on 03.09.2011, the dead body was identified by father and mama of deceased and thereafter, the photographs of dead body was taken. IO conducted the inquest proceedings and the post mortem was conducted and thereafter, dead body was handed over to the father of deceased. After the post mortem, the autopsy surgeon had handed over the sealed pullandas and sample seal was seized by the IO.
22. PW-19 is Sh. Naresh Kumar, Senior Scientific Officer Biology, FSL Rohini Delhi. He has deposed that on 19.09.2011, six sealed parcels were received in FSL Rohini Delhi in connection with the present FIR. Same was marked SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 14 of 61 to him for examination. He further deposed that on biological examination, blood was detected on all the exhibits. He also examined the exhibits serologically. Human blood was found on all the exhibits except Ex.4. Blood group "A" was found on exhibits Ex.1a, Ex.1b, Ex.2a, Ex.2b,Ex.2.c, Ex.3a,Ex.3b and Ex.6a,Ex.6b,Ex.6c and remaining exhibits gave no reaction. After examination parcels were resealed with the seal of NK FSL, Delhi. He has proved his detailed biological report as Ex.19/A and his detailed serological report is Ex.19/B.
23. PW20 Ct. Sandeep Kumar deposed that on 05.09.2011, he was posted at PS- Janak Puri as Ct. On that day at about 03.30 pm, he was present in the police station. IO/ Inspector Prabhu Dayal Singh asked him to join the investigation. A raiding party was constituted comprising himself, SI Sukhbir, HC Rajeev and Inspector Prabhu Dayal Singh. They all went Dabiri More crossing in a private car of Inspt. Prabhu Dayal Singh. They reached at Dabiri More Crossing at about 04.00 pm. There a secret informer met Inspct. Prabhu Dayal Singh, who informed him that the main accused Aman Sharma would come at Dabiri More Crossing at a welding shop. Inspector Prabhu Dayal Singh/IO asked him to take position at the electric pole. He also instructed remaining members of raiding party to take their respective position. After 10-15 minutes IO signalled by pointing towards accused that he had come. HC Rajeev overpowered the accused Aman Sharma and then they all surrounded the accused. IO requested 2-3 public persons to join the proceedings but they left without disclosing their names and addresses. The accused Aman Sharma was SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 15 of 61 arrested and his personal search was conducted. IO recorded his disclosure statement. Rs.184/- was recovered during his personal search, it was taken into police possession.
Thereafter, accused Aman Sharma led them to main gate Talab wala park. Accused Aman Sharma got recovered the knife which was used in the commission of the offence from debris of bricks, stones and pebbles. There was a blood on the knife and it was large in length. IO prepared the sketch of the knife and took measurement of the knife. Total length of the knife was 31.2cm and remaining dimension of knife he was not able to recall. Handle of the knife was having studs of sliver colour. The pulanda of the knife was prepared and the same was sealed with the seal of PD and taken into police possession. Thereafter, accused Aman Sharma led them to A-24, Sai Nath Clinic. Accused Aman Sharma took them to the roof top of the said property. He told that he had thrown the clothes worn by him at the time of the commission of the offence at the roof of the said house. The clothes were found in a transparent plastic. Accused got recovered said transparent plastic containing blood stained clothes. There was a one blood stain T-shirt of dark blue colour, one blood stain white baniyan, one blood stain blue jeans and one underwear of dark brown colour in the transparent plastic. One knife cover was recovered from the right pocket of the jeans. There was blood on the knife cover. Thereafter, IO prepared the pulanda of the aforesaid recovered items and sealed with the seal of PD. Thereafter, accused Aman Sharma led them to the scene of crime i.e A-1 block main road, Garg Nursing Home, Janak Puri. Accused Aman Sharma pointed the scene of crime. IO prepared the pointing out memo at the instance of accused Aman Sharma. Thereafter, medical SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 16 of 61 examination of the accused Aman Sharma was got conducted and they returned to the police station. IO deposited the case property in PS- Malkhana. This witness identified the accused Aman correctly.
24. PW-21 HC Rajeev Kumar deposed that on 02.09.2011, he was posted in P.S. Janakpuri and was present in the police station. IO of the case Inspector Prabhu Dayal has received the DD. He did not remember, regarding the commission of offence. He along with IO Inspector Prabhu Dayal, SI Sikandar Roi went to DDU Hospital at about 4:45 PM. IO has reached in emergency department of DDU Hospital where Duty Constable Virender met the IO and handed over a sealed parcel sealed with the DDU Hospital as well as sample seal of DDU Hospital. IO has seized the same vide seizure memo Ex. PW12/A. The IO has also obtained the MLC of deceased Bharat. Dead body of deceased Bharat was already sent to mortuary DDU Hospital. One eye witness namely Ajay also met the IO in the emergency department of DDU Hospital. The IO had visited the mortuary of DDU Hospital and seen the dead body of Bharat and there were three injury marks on the body of deceased, one was on the left side of chest, second was on the upper hand of left wrist and third was below ribs left side. Thereafter IO left Ct. Mukesh Kumar to guard the dead body of deceased Bharat and thereafter IO came to the emergency department of DDU Hospital and recorded the statement of Ajay. The IO has made his endorsement on the statement of Ajay and handed the same to SI Shikander Roi for getting the register of the FIR. Thereafter IO along with eye witness Ajay along with me reached at SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 17 of 61 the scene of crime i.e A-1 Block, Main Road, near Iron Gate, near Garg Nursing Home, Main Road, Janakpuri. IO has inspected the scene of crime at the instance of eye witness Ajay. IO has also prepared the site plan on the scene of crime at the instance of Ajay. Meanwhile at about 7:50 PM, SI Shikander Roi reached at the scene of crime and the copy of the FIR and handed the FIR to IO Inspector Prabhu Dayal. IO has instructed him to go to the house of witness Ajay for bringing Ajay's clothes so that the clothes worn by Ajay could be seized as there were blood spots on his clothes. He went to the house of Ajay and bring his clothes and same were handed over to Ajay. Ajay has handed over his worn blood stained clothes i.e sky blue colour T-shirt, a baniyan and a jeans pant to the IO. The IO has converted the worn clothes of the Ajay into a pulanda and sealed the same with the seal of PD. The IO has handed over the seal to SI Shikander Roi after using the same. He further deposed that on 03.09.2011, he also joined the investigation of the present case along with IO Inspector Prabhu Dayal. He along with IO and maternal uncle (mama) of deceased went to the DDU Hospital Mortuary. The doctor at DDU Hospital mortuary conducted the post mortem of the body of deceased. The dead body of deceased was handed to the IO. Doctor at mortuary had handed two sealed parcels to the IO sealed with DFMT DDU Hospital along with sample seal. One parcel was containing the clothes of deceased and another was containing the blood gauge piece. Both the parcels were seized by the IO vide seizure memo Ex. PW21/A. Dead body of deceased was handed over to the maternal uncle (mama) Ravinder Kumar vide memo Ex. PW2/A. SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 18 of 61 He further deposed that on 03.09.2011, he again joined the investigation in the evening along with IO Prabhu Dayal as IO had a secret information regarding the accused Ankit Aggarwal as accused of the present case. The IO has prepared a raiding party comprising of IO, himself, SI Shikander Roi, HC Sukhi Ram and they left the police station at about 3:45 PM and reached at entry gate Uttam Nagar Bus Terminal, Delhi at about 4:00 PM and as per instruction of the IO, they took their position. They had reached at Uttam Bus Terminal by personal car of IO. IO was sitting in the car along with secret informer. At about 4:10 PM, accused Ankit Aggarwal deboarded from a DTC Bus as they were looking for the IO's indication. The IO has indicated by pointing towards accused Ankit Aggarwal that he is Ankit Aggarwal. First of all, he had apprehended the accused Ankit Aggarwal, meanwhile other members of raiding party namely SI Sikander and HC Sukhi Ram also overpowered the accused Ankit Aggarwal. Thereafter IO has also reached near them and enquired from accused Ankit Aggarwal. The accused Ankit Aggarwal firstly had not cooperated the investigation but after that IO had shown hardness the accused Ankit Aggarwal disclosed that he had acquainted with deceased Bharat and at that time Bharat had inflicted blade injury behind his ear and to take revenge from Bharat he along with his co-accused committed the offence. The disclosure statement of accused Ankit Aggarwal was recorded which is Ex. PW1/C. The IO has arrested the accused Ankit Aggarwal and his personal search was conducted.
He further deposed that on 04.09.2011, he has also joined the investigation of the present case along with IO. IO had a secret information that one of the accused Pankaj was supposed to leave Delhi and constituted a raiding SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 19 of 61 party namely IO, himself, SI Sikander Roy, HC Sukhi Ram. On 04.09.2011, they left the police station at 7:15 AM, they reached at Daula Kuan Bus Stand opposite Metro Station at about 7:45 AM. The IO has directed them to take position and they took their position as per instruction of IO. IO was present in the car along with accused Ankit Aggarwal. After some time accused Pankaj had deboarded from a bus. They were following the instruction of IO. IO has pointed out/indicated towards the accused Pankaj. Accused Pankaj was apprehended and interrogated by the IO. The accused Pankaj was arrested and his personal search was conducted. The disclosure statement of the accused Pankaj was recorded. Accused Pankaj had disclosed the fact that he had parked the motorcycle make Pulsar of red colour bearing no. DL 9SU-35 but complete number is not remember to him at present. The accused had disclosed that said motorcycle was used in commission of offence. Accused Pankaj has disclosed that he can get arrest his co- accused Aman Sharma. Accused Pankaj also disclosed that he can identify the scene of crime. The accused Pankaj had led them at the site where the motorcycle was parked and got recovered the motorcycle. The motorcycle was seized by the IO. Thereafter, accused Pankaj led them at the scene of crime. On the pointing out of accused Ankit Aggarwal and Pankaj pointing out memo of scene of crime was prepared which is Ex. PW21/E. He further deposed that On 05.09.2011, he joined the investigation of the present case along with IO Prabhu Dayal, SI Sukhbir and Ct. Sandeep. IO had a secret information that father of accused Aman is having a welding shop behind the police station Dabri and accused Aman will come there at about SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 20 of 61 4:00 PM to meet his father. Thereafter, he along with SI Prabhu Dayal, SI Sukhbir and Ct. Sandeep reached near Dabri Crossing in the private car. The members of raiding party took their position near Dabri Crossing Bus-stand. At Dabri Cross secret informer met the IO. At the spot, IO requested 4-5 persons to join the investigation but none of them joined and they left the spot without disclosing their names and addresses. Thereafter, all members of raiding party took their position there and started waiting for the accused. At around 4:10 PM, one person was seen by them while coming from the front side. Thereafter IO made an indication towards a person who was apprehended and other members of raiding party also reached there. On enquiry the name of said person revealed as Aman Sharma. The said Aman Sharma was interrogated by the IO in their presence. The said Aman Sharma admitted his guilt. Thereafter the arrest memo of Aman Sharma was prepared and personal search of accused Aman was conducted. From the personal search of accused a sum of Rs 125/- was recovered. The accused Aman made a disclosure statement which is Ex. PW21/H. The accused disclosed that the weapon of offence .e knife has been kept concealed by him in Talab wala park Binda pur left side of the gate of said park near a peepal tree and electric pole under the stones and brick heap and he can get the same recovered from there.
The accused further disclosed that the clothes which he was wearing, were stained with blood when he was hiding the blood stained knife under his garments and at that time his clothes were stained with blood. The said clothes and cover of said knife were kept by him in a SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 21 of 61 transparent polythene and the said polythene was thrown by him on the roof of Sai Nath Clinic Anup Nagar and he can also led them and get the same recovered from there. He further disclosed that he can point out the place of incident.
Thereafter, the accused led them to the disclosed place where he had kept concealed the knife. He had taken out the knife and produced before the IO. The IO checked the knife and it was found with blood stains. The IO kept the said knife on a white paper and the rough sketch of the knife was prepared. The sketch of the same is Ex. PW21/J The measurement of knife was also done. The total length of knife was 31.2 CM. The length of blade was 20 CM. The handle was 11.2 CM. The Width of blade was 4.3 CM. The handle was fixed with hard plastic of black colour. The knife was kept in a cloth and it was converted into a parcel sealed with the seal of PD.
Thereafter, accused led them to the disclosed place where he had thrown his blood stained clothes and cover of knife. From there the accused from the roof of said clinic got recovered one transparent polythene bag. On checking the polythene bag by the IO, it was found containing therein one blue colour t-shirt, one vest with grey colour strip and one blue colour jeans pant and one underwear. There were cuts with sharp object on vest, underwear and blue colour jeans pant, the same were blood stained. On checking the left pocket of jeans pant, one cover of knife of green colour was recovered. All the recovered four articles were again kept in the same transparent polythene bag and it was kept in a white cloth. It was converted into a parcel, sealed with the seal of PD and it was seized vide SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 22 of 61 memo Ex. PW21/L. Thereafter, accused Aman led them to scene of crime and at his instance pointing out memo Ex. PW21/M was prepared. He further deposed that on 09.09.2011, he again joined the investigation of the present case. On that day, he accompanied the IO to Tis Hazari Court. Thereafter, after attending the court, he accompanied the IO to Tetarpur, Tagore Garden there from a shop, photographer Rajesh produced nine photographs along with negatives of the dead body of deceased taken from different angles. The said photographs and negatives were seized by the IO vide Ex. PW21/N. Thereafter, They returned at police station. On 19.09.2011, he again joined the investigation and he was present at police station. On that day, the IO had handed over to him a filled up FSL form and at his instruction he collected four sealed parcels which were sealed with the seal of DFMT DDU Hospital along with two sample seal and two sealed parcels sealed with the seal of PD. At the instruction of IO from MHC(M) P.S. Janakpuri, he took the said exhibits to FSL Rohini for analysis vide RC no. 36/21/11 dated 19.09.2011. He deposited the said exhibits at FSL Rohini.
He further deposed that on 21.09.2011, he again joined the investigation and he was present at police station. On that day, the draftsman SI Mahesh Kumar came at Police Station and he along with the IO went to the spot. From there, he went to the house of complainant Ajay at the instruction of IO and brought the complainant at the spot. There at the instance of complainant Ajay, SI Mahesh prepared rough note of the place of incident. On that day also IO recorded his statement. The accused persons SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 23 of 61 namely Ankit Aggarwal, Aman Sharma and Pankaj @ Ishu were correctly identified by this witness. He correctly identified the clothes which were produced by the complainant before the IO. The said clothes are collectively Ex. P1. He also correctly identified the knife which was got recovered by accused Aman Sharma. The knife is Ex. P2.
He also correctly identified the clothes and weapon cover which were got recovered by the accused Aman Sharma. The same are collectively Ex. P3. He also deposed that the photographs Ex. PW11/A1 to A9 and negatives Ex. PW11/B1 to B9 are the same which were seized by the IO from the photographer Tetarpur Tagore Garden, New Delhi from the shop of photographer namely Rajesh. He also correctly identified the motorcycle Red Colour Pulsar which was used in the crime as Ex.P-X.
25. PW-22 ASI Sukhi Ram has deposed that on 03.09.2011, he was posted in PS Janakpuri as Head Constable. On that day, at about 3:45 PM, IO Inspector Prabhu Dayal asked him to join the investigation. He told him that accused Ankit Aggarwal would come at Uttam Nagar Bus Terminal and they must proceed there to arrest him. Thereafter, he along with IO, HC Rajiv, SI Sikander Roy and complainant Ajay Kumar went to Uttam Nagar Bus Terminal in the private car of IO Inspector Prabhu Dayal. They reached there at about 4 PM. He stood at the entry gate no. 1 of Uttam Nagar East metro station. IO along with Ajay Kr. took the position at the gate of Bus Terminal. ASI Sikander Roy took the position at the south side of the bus terminal and HC Rajiv in the North side. Thereafter, at about 4:10 PM, accused Ankit Aggarwal whose name was disclosed later on SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 24 of 61 got down from a bus. Ajay Kumar indicated that this is the accused Ankit Aggarwal then SI Sikander Roy apprehended him and they all immediately surrounded the accused. IO interrogated the accused. IO requested 4-5 public persons to join the proceedings but none agreed and left the place without disclosing their names and addresses. IO recorded the disclosure statement of accused Ankit Aggarwal. He was arrested and his personal search was conducted. Upon personal search one card of youth congress, two passport size photographs of accused himself, one copy of DL of the accused and Rs. 105/-, one black purse and used bus tickets were found. He took the accused to DDU Hospital for his medical examination and brought to the PS after his medical.
He further deposed that again on 04.09.2011, he joined the investigation with the IO Inspector Prabhu Dayal, HC Rajiv, SI Sikandar Roy. Accused Ankit Aggarwal was in custody also accompanied them. On that day at about 7:15 am, they went to Dhaula Kuan by the same private car of IO. They reached there at about 7:45 AM. He remained in the car with accused Ankit Aggarwal. IO instructed the remaining staff to take their respective positions. Then at about 10:08 AM, accused got down from the bus. Accused Ankit Aggawal pointed towards him and told that he is accused Pankaj @ Ishu. IO overpowered the accused Pankaj and apprehended him. IO again requested the public persons to join the investigation but one agreed. Accused Pankaj was arrested and his personal search was conducted. One handkerchief and cash amount of Rs. 25/- were found upon his personal search. The disclosure statement was recorded. Thereafter accused took them to H. No. 114, Bindapur Village, Uttam Nagar, Delhi. They reached there and one motorcycle SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 25 of 61 was found parked near printing press & rice shop. The accused Pankaj pointed out towards the said motorcycle and told that this is the same motorcycle which was used in committing the offence on 02.09.2011 and he himself left the motorcycle at the aforesaid place. The registration number of the motorcycle was DL 9SU 3504. The said motorcycle was taken into police possession. Thereafter, they came back at the scene of crime i.e. near Garg Nursing Home, A1 Block, Janakpuri, New Delhi. A pointing out memo was prepared by the IO at the instance of accused persons. Both the accused Ankit and Pankaj were correctly identified by this witness.
26. PW-23 Inspector Prabhu Dayal is the IO of the case. He has deposed that on 02.09.2011, he was posted as Inspector Investigation in PS Janakpuri. On that day, on the receipt of DD no. 26A, he along with SI Sikander Roy and HC Rajiv reached at DDU Hospital, Delhi. There he came to know that injured namely Bharat was admitted in the hospital vide MLC No. 17876 / 11. The doctor had mentioned in the said MLC that the patient was brought dead and body packed and sent to mortuary.
He further deposed that duty constable DDU Hospital Virender met him in the causality of the hospital and handed over to him a sealed pulanada and sample seals which were seized vide seizure memo Ex. PW12/A. In the meantime, Ct. Mukesh reached at the hospital and reported to him. Thereafter, he along with the staff went to the mortuary DDU Hospital and saw the dead body. There were three injury marks on the dead body of the deceased Bharat. One injury was on the left side below the nipple. Second injury was on the left hand upper side wrist. Third SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 26 of 61 injury was below the ribs. Ct. Mukesh was entrusted to supervise the dead body of the deceased.
Then he met eye witness/ complainant Ajay Kumar in the hospital. He enquired from him regarding the incident. He recorded his statement Ex. PW1/A and prepared the rukka on the basis of the said statement and sent SI Sikandar Roy to police station with rukka for registration of FIR.
Thereafter, he along with HC Rajiv and Ajay Kumar reached at the scene of crime i.e. A-1 Block, Janakpuri, Near Gagan Nursing home, Pankha road, Delhi. Then at the instance of complainant Ajay Kumar he prepared the site plan Ex. PW23/B. In the meantime, SI Sikander Roy reached at the spot and handed over to him copy of FIR and original rukka.
Then he sent HC Rajiv to bring the clothes of complainant from his jhuggi pankha road. After about 15- 20 minutes HC Rajiv came to the spot with clothes of complainant. Then the complainant was asked to change his clothes and the blood stained clothes which he was wearing at that time were taken into possession. The clothes included blood stained sky blue shirt, blood stained baniyan having grey strips and blood stained blue jeans. He prepared the pullanda of the said clothes and sealed with the seal of PD. The seal was handed over to SI Sikander Roy after use. He recorded the statement of witnesses. Thereafter, he along with staff returned to the police station and deposited the case property in PS Malkhana.
He further deposed that on 03.09.2011, he along with HC Rajiv and relative of deceased reached at mortuary SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 27 of 61 DDU Hospital, Delhi. Father of deceased namely Sh. Bittoo Singh and maternal uncle of deceased namely Ravinder Kumar identified the dead body of the deceased Thereafter, the dead body of the deceased was photographed by calling a photographer. The said photographs were seized and he recorded the statement of photographer Rajesh. Then he filled up the inquest papers. He made request for postmortem of the deceased. Thereafter, postmortem of the deceased was got conducted and dead body was handed over to the father of the deceased. The doctor handed over to him sealed pullanda and sample seal which were taken into police possession. Then he returned to the police station and deposited the exhibits in the malkhana. He further deposed that on 03.09.2011, itself at about 3:30 PM, complainant Ajay Kumar came to the police station. And in the meantime, at about 3:45 PM, a secret informer informed him that accused Ankit Aggarwal who is involved in the present case would come at Uttam Nagar Bus Terminal at about 4 PM in order to escape. Thereafter, he constituted a raiding party comprising of SI Sikandar Roy, HC Rajiv, HC Sukhi Ram and complainant Ajay Kumar. Then they went to Uttam Nagar Bus Terminal by his own private car. They reached at the entry gate of Uttam Nagar Bus Terminal at about 4 PM. He instructed the members of the raiding party to take their respective positions and he remained with complainant in the car. After a few minutes accused Ankit Aggarwal came at the entry gate of the bus terminal and the complainant identified the accused by saying that he is Ankit Aggarwal who had committed the offence along with his associates Aman and one another person. Then he got SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 28 of 61 down from the car and asked the staff by pointing out to apprehend the accused. Immediately SI Sikandar apprehended the accused Ankit Aggarwal. He interrogated the accused Ankit and recorded his disclosure statement and arrested the accused. His personal search was conducted. Some of the articles were found during his personal search such as learning DL, ID Proof of accused, two passport size photographs, Rs 105/- and one used purse and some used bus tickets. He prepared the site plan of the place of arrest of accused Ankit Aggarwal and recorded the statement of witnesses. Medical examination of the accused was got conducted through HC Sukhi Ram. And they returned to the police station. Case property was deposited in malkhana.
He further deposed that on 04.09.2011, at about 7:15 AM, secret informer informed that the second accused involved in the present case would escape from Dhaula Kuan. He made DD entry regarding the aforesaid information vide DD no. 9A which is marked as Mark A. Then he constituted a raiding party comprising of SI Sikandar Roy, HC Rajiv, HC Sukhi Ram and accused Ankit Aggarwal was also removed from the lockup and was made to join the investigation. Thereafter they all left the police station in his private alto car and reached at Dhaula Kuan bus stop at about 7:45 AM. Accused Ankit Aggarwal was made to remain in the car in the custody of HC Sukhi Ram and SI Sikandar Roy and HC Rajiv were asked to take their position at bus stop. After sometime accused Pankaj got down from DTC bus and started moving towards them on the footpath of main road. Accused Ankit Aggarwal identified accused Pankaj. Then he got down from the car SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 29 of 61 and overpowered the accused Pankaj and apprehended him. He interrogated the accused Pankaj @ Ishu and recorded is disclosure statement. He arrested accused and conducted his personal search. Rs. 25 and one handkerchief of white colour was found during his personal search. He prepared the site plan of the place of arrest of accused Pankaj.
Accused Pankaj had disclosed that the motorcycle which was used in the commission of the crime was parked in Village Bindapur, Uttam Nagar, Delhi. Thereafter, they left for village Bindapur and accused led them to H. No. 114, Village Bindapur. One motorcycle was parked there near printing press and rice shop. Accused Pankaj got recovered red pulsar motorcycle bearing no. DL 9SU 3504. Accused Pankaj further disclosed that the said motorcycle belongs to Manoj and he had borrowed from him to commit the crime. He requested owners of rice shop and printing press to join the investigation but they refused to join the investigation. He seized the motorcycle.
Thereafter, he made inquiries from Mukesh Kumar, R/o H. No. 114 Anoop Nagar, Bindapur, Delhi who told that accused Pankaj had taken motor cycle from him on 02.09.2011. Thereafter both the accused persons led them to the scene of crime i.e. A-1 Block, Janakpuri, Near Garg Nursing Home. He prepared the pointing out memo at the instance of both the accused persons. Accused Pankaj was kept in muffled face throughout the proceedings. He recorded the statement of witnesses. And then got both the accused medically examined. Thereafter, both the accused were produced in the court. Accused Pankaj was produced in Court in muffled face. Accused Pankaj was sent SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 30 of 61 to JC for 14 days and 3 days PC of accused Ankit Aggarwal was granted by Hon'ble Court. Thereafter they returned to the police station and case property was deposited in malkhana.
He further deposed that on 05.09.2011, a secret information was received that accused Aman would come to meet his father at welding shop behind PS Dabri and he would come from the side of Dabri Chowk. He entered the said information in DD register vide DD no. 41/B, dated 05.09.2011 which is mark B. Thereafter, he along with SI Sukhbir, HC Rajiv and HC Sandeep reached Dabri Chowk in his private car. Secret informer met him there. Raiding party was instructed to take their position and secret informer was with him in him car. At about 4:15 PM, accused Aman was seen coming from Dabri Chowk and the secret informer told him by pointing towards him that the said person is accused Aman who is wanted in the present case. He got down from the car and instructed his staff to apprehend him. Then HC Rajiv firstly apprehended accused Aman and then the secret informer was asked to leave the spot. He interrogated accused Aman and recorded his disclosure statement. He arrested accused Aman and his personal search was conducted. He prepared the site plan of the place of arrest. Accused Aman disclosed that he could get recover the knife used in committing the offence from Talab wala park, Bindapur and also his blood stained cloths worn by him at the time of committing the offence as well as the cover of the knife from the roof of Sai Nath Clinic, Bindapur. Thereafter accused Aman led them to Talab Wala Park Bindapur and got recovered the knife which was concealed under the construction material. He SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 31 of 61 took the measurement of the knife and prepared its sketch. The total length of the knife was 31.2 cm, length of blade was 20 cm and width of the blade was 4.3 cm. Length of the handle was 11.2 cm. Handle of the knife was covered with hard black plastic. The upper side of blade was having Ari type feature. Thereafter he prepared the pulanda of the knife and sealed with the seal of PD and seized it. On interrogation accused Aman disclosed that he had brought the said knife from Haridwar when he had gone there with Kawar. He prepared the site plan of place of recovery of knife.
Thereafter accused led them to Sai Nath Clinic, Property No.A-24, Anup Nagar Bindapur. There he asked the Doctor of the clinic to formally join the investigation but he refused to join investigation out of fear that the accused person could harm him. He tried to assure him that the security will be provided to him but he did not get ready to join the investigation. However, he remained with them during the recovery proceedings. Accused Aman led them to the room of Sai Nath Clinic and got recovered his clothes and knife cover in a transparent plastic cover ( Panni) . He checked the said panni. There were one blood stained dark blue T Shirt, one blood stained baniyan of white colour, one blood stained brown colour underwear and one blood stained blue colour jeans and one green colour knife cover in the panni. On being checked, there was a sharp cut on the baniyan, jeans pant and underwear. He prepared the pulanda of said articles and sealed with the seal of PD and the same was taken into possession. Seal was handed over to S I Sukhbir after use. All the accused namely Ankit Aggarwal, Pankaj and Aman Sharma were correctly SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 32 of 61 identified by this witness.
He correctly identified the clothes being worn by the accused Aman. He also correctly identified the knife which was recovered at the instance of accused Aman.
From Sai Nath Clinic, we went to scene of crime i.e. A- 1 Block, Near Iron Gate, Garg Nursing home. There accused Aman Sharma pointed out the scene of crime and he prepared pointing out memo at his instance. Then he recorded the statement of witnesses and got the medical examination of accused Aman Sharma conducted in DDU Hospital. Thereafter, they returned to the police station and case property was deposited in malkhana. Accused persons were put behind police lock up.
He further deposed that on 06.09.2011, at about 10:45 AM, accused Aman Sharma and Ankit Aggarwal were taken out from lock up for interrogation. While he was interrogating the accused persons in the IO room, complainant Ajay Kumar came to IO room in police station and identified the accused Aman Sharma. He recorded the statement of Ajay Kumar to this effect. He produced both the accused persons in Court after their medical examination and both were sent to JC.
He further deposed that on 07.09.2011, he took two sealed pullandas from MHC(M) PS Janakpuri vide DD entry 22A which is mark PW 23/A and handed over the sealed pullanda to Dr. Komal DDU Hospital. He obtained the subsequent opinion written by Dr. Komal Singh along with sketch of knife prepared by her. He deposited the case property in sealed condition in malkhana after subsequent opinion vide a DD no. 25A.
He further deposed that on 08.09.2011, he moved an SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 33 of 61 application for the TIP of accused Pankaj @ Ishu vide an application Ex. PW23/K . TIP was conducted in Tihar Jail on 13.09.2011. He took the complainant to Tihar Jail. However, the accused Pankaj @ Ishu refused to join the TIP proceedings. Then he obtained the copy of TIP proceedings by moving an application in this regard.
He further deposed that on 17.09.2011, he along with HC Rajiv went to JJ Colony, Pankha Road, Uttam Nagar, New Delhi. He interrogated Mohd. Mosin and recorded his statement U/s 161 Cr.PC. Then he went to the Garg Nursing home and recorded the statement of Mamta, U/s 161 Cr.PC, who was the receptionist at the said nursing home. He also recorded the statement U/s 161 Cr.PC of Vir Pal who was security guard at Shanti Home Guest House.
He further deposed that on 19.09.2011, he sent exhibits to FSL Rohini through HC Rajiv Kumar. And he along with complainant went to Tis Hazari Court. And at about 1 pm, all the three accused persons were brought to the Court. Complainant on seeing accused Pankaj @ Ishu told that he is the same person who was involved in the crime and correctly identified him. He recorded the statement of complainant to this effect. Thereafter, he returned to the police station. Thereafter, PW Vishal Gupta joined the investigation in police station. He made inquiry from him and recorded his statement U/s 161 Cr.PC. He also recorded the statement of MHC (M) CP HC Amar Singh and HC Rajiv. He obtained the scaled site plan from the drafts man SI Mahesh Kumar and recorded his statement. During investigation he also went to the house of Rajat Gupta then aged 15 years and recorded his statement in the presence of his parents. He prepared the charge sheet SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 34 of 61 and filed the same in the Court. Subsequently, he also filed supplementary charge sheet.
27. PW-24 is Inspector Sukhbir Singh. He is a witness who joined the investigation on 05.09.2011 alongwith PW-23 and PW-21. He is a witness to the arrest of accused Aman and the recovery of weapon of offence, clothes worn by him and knife cover at the instance of accused Aman. He correctly identified the clothes, weapon of offence (knife) and the accused in the court.
28. PW-25 Dr. Komal Singh, Sr. Chief Medical Officer (HAG), DDU Hospital. He deposed that on 03.09.2011,he conducted the post mortem on the dead body of deceased Bharat and prepared report Ex.PW25/A. As per the said report, the cause of death was haemorrhagic shock subsequent to stab injury to the kidney. Injury no. 3 is sufficient to cause death in ordinary course of nature. He further opined that all the cut marks could be possible by the knife used by the assailants. His opinion is Ex.PW25/B. The sketch of knife prepared by this witness is Ex.PW25/C. Subsequent opinion is Ex.PW25/D.
29. PW-26 is Inspector Sikander Roy. He is a witness who joined the investigation on 02.09.2011, 03.09.2011 and 04.09.2011 alongwith PW-23 and PW-21. He is a witness to the arrest of accused Ankit Aggarwal and Pankaj @ Pankaj @ Ishu Aman and the recovery of Bajaj Pulsar motorcycle bearing regn No. DL 9AC 3504 which was used in the crime at the instance of accused Pankaj @ Ishu. He correctly identified accused Ankit Aggarwal and Pankaj @ Ishu as SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 35 of 61 well as motorcycle in the court.
30. After conclusion of prosecution evidence, statement of all the accused persons under Section 313 Cr.P.C. were recorded wherein all of them have taken the plea of false implication in the present case. In support of their defence, accused persons have examined one witness.
31. DW-1 is Mohd Ali @ Sonu. He deposed that he is a driver by profession and plying a commercial car Swift Dezire. He was residing at the above address since last 25- 30 years. In the year 2011, month and date, he did not remember, he had only heard about the incident of this case as some boys of the locality came running and informed him about the incident. At that time, he was standing at the Pankha Road alongwith one Gauri and Ajay. The said boys told him that one boy namely Bharat sustained injury and was taken to nearby clinic in the colony. Accordingly, they all three i.e. himself, Gauri and Ajay went to the clinic. He found that the injured Bharat was there but he did not know his actual name. In the clinic, doctor had advised to take the injured to the hospital. From the said clinic, Gauri and Ajay took the injured to the hospital and he came back to his house.
REASONS AND DECISION.
32. I have heard the Ld Addl P.P for the State and Ld Counsels for both the accused. I have given my thoughtful consideration to the submissions being made by them and I also perused the record carefully.
SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 36 of 6133. Ld Defence Counsels have vehemently argued that the prosecution has failed to prove its case beyond reasonable doubt. It is argued that there is not an iota of evidence available on record to connect the accused persons with the instant case.
Arguments on behalf of accused Ankit Aggarwal
34. It is argued that though PW-1 Ajay has deposed that he was present at the spot and in his presence, accused Aman stabbed deceased Bharat with knife whereas PW-15 Mohd. Gauri has deposed that on the date of incident at about 1.30-2 pm, he was standing at the chowk of JJ Colony alongwith his friend Sonu and Ajay and in the meanwhile someone informed them that one boy had received knife injuries and is at the clinic of doctor.
35. In view of the testimonies of PW-1 and PW15, it is argued that since both are prosecution witnesses, however, both are contradictory. It is further argued that as per the case of the prosecution, PW-1 is the eye witness to the incident, however, PW-15 has contradicted his claim of his presence at the time of incident. Therefore, merely on this ground, the entire prosecution story case fails.
36. Another argument raised on behalf of accused Ankit is that the alleged place of incident is even in dispute. It is argued that there no evidence has been produced on record i.e photographs which could support the prosecution story. It is further argued that though IO has deposed that SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 37 of 61 he took photographs of the spot, no photographs of the spot have been placed on record which further raises suspicion on the prosecution story.
37. It is also argued that the prosecution has completely failed to show any motive behind the murder. No motive whatsoever has been explained by the prosecution which could support the case of the prosecution. Even PW-16 Vishal Gupta and PW-17 Rajat Gupta have not supported the prosecution story.
38. Another argument raised on behalf of this accused is that IO neither recovered the mobile phones of the accused, witnesses and deceased nor collected the call detail record to establish the prosecution case which further weakens the prosecution story.
39. To substantiate his arguments, Ld. Counsel for accused Ankit has relied on case titled as Kadir Vs. State 1986 Lawsuit (Del) 458 passed by Hon'ble High Court of Delhi.
40. It is therefore argued that prosecution has completely failed to establish its case and hence, accused is liable to be acquitted.
Arguments on behalf of accused Pankaj @ Ishu
41. It is vehemently argued that as per the prosecution case, the snatching of the mobile phone from Deepak is presumed to be the motive behind the offence by the prosecution, however, it is surprising that though the SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 38 of 61 mobile was allegedly snatched by PW-1 Ajay, however, deceased Bharat was murdered. Therefore, prosecution has failed to show as to what was the motive behind the commission of crime.
42. It is also argued that it is quite surprising that Deepak who appears to be an important witness has not even been cited as a witness for the reasons best known to the IO.
43. It is also argued that PW-15 specifically deposed that clothes of PW-1 Ajay were not got blood stains, whereas clothes of PW-15 were blood stained, however, the IO took the blood stained clothes of PW-1 and not of PW-15 which raises suspicion on the conduct of the IO of the case.
44. It is also argued that even PW-16 Vishal Gupta who was examined to establish the source of weapon of offence turned hostile and did not support the prosecution story.
45. It is further argued that chance prints were not taken from the recovered knife to connect it with the present case. It is also argued that no public person has been made a witness to the alleged recovery of weapon of offence which further raises doubt on the prosecution story.
46. It is further argued that mobile phone locations of accused, complainant and deceased were not taken by the police intentionally as these were not supporting the prosecution case.
47. It is further argued that PW-14 Mohd Mosin is not a SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 39 of 61 reliable witness as he admitted during his cross examination that he was deposing after reading his statement recorded by the police and that he falsely deposed regarding coming of accused Ankit in his school and asking about Ajay.
48. It is also argued that DW-1 Sonu has corroborated the version of PW-15 and hence, raised serious doubt over the testimony of PW-1 who is alleged to be the only eye witness to the incident.
49. To substantiate his arguments, Ld. Counsel for accused Pankaj @ Ishu has relied on case law titled Shanker & Anr. Vs. State of M.P. 2018 (2) LRC 576 (SC) and Rakesh @ Sonu & Ors. Vs. State NCT of Delhi 2018 (2) LRC 491 (Del).
Arguments on behalf of accused Aman
50. It is vehemently argued that Deepak, owner of mobile not examined, hence, no motive is proved as snatching of mobile was the bone of contention as per the case of the prosecution.
51. It is further argued that as per PW-15, the deceased was first taken to a doctor's clinic, however, no witness from the said clinic was examined by the prosecution which raises doubt on the prosecution story.
52. It is further argued that there is no scientific evidence to connect the accused with the weapon of offence as no SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 40 of 61 chance prints were taken from the knife.
53. It is further argued that blood group on knife does not match blood group of any of the accused.
54. It is further argued that in view of testimony of PW- 15 who has not supported the case of prosecution, it becomes clear that PW-1 Ajay is a planted witness as his presence at the spot becomes doubtful in view of the testimonies of PW-15 and DW-1.
55. It is further argued that no blood was picked up from the spot which makes it clear that there was no blood at the spot and hence, no such incident took place at the alleged place of incident.
Arguments Advanced on behalf of State
56. While opposing the arguments of the accused persons, Ld Addl PP for the State has argued that all the PWs examined by the prosecution has firmly stood the test of cross examination and have been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of PWs.
57. It is more particularly argued that present case is SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 41 of 61 based on direct evidence i.e PW-1 Ajay as well as of scientific evidence i.e FSL report and post mortem report.
58. It is argued that PW-1/complainant is the star witness of the prosecution. He has categorically deposed about the role of each accused and the manner in which all of them committed the murder of deceased by stabbing him with knife. It is further argued that his testimony has remained unchallenged and unimpeached.
59. As regards the argument of defence that PW-1 is a planted/interested witness, it is submitted that PW-1 is a natural witness who was with the deceased at the time of incident and he witnessed the entire incident. As regards the testimony of PW-15, he was in custody and might have been won over by the accused person in jail and therefore, merely because of him not supporting the case of the prosecution does not weaken the prosecution case.
60. As regards the argument that no witness from the clinic where deceased was taken first was examined, it is submitted that this is not the case of the prosecution that deceased was first taken to clinic and from there he was taken to DDU hospital. As per the prosecution case, he was directly taken to DDU hospital as deposed by PW-1 Ajay and hence, there was no question of examining any witness from the said clinic.
61. It is further argued that vehicle used in the crime i.e Bajaj Pulsar motorcycle was got recovered at the instance of accused Pankaj @ Ishu and weapon of offence i.e knife SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 42 of 61 was got recovered at the instance of accused Aman. The recovery of weapon of offence and motorcycle used in the crime at the instance of accused further proves the involvement of accused persons in the murder of deceased Bharat.
62. It is further argued that as per FSL report, the blood found on the clothes of accused Aman matched with the blood group of deceased which further corroborates the prosecution story that it was accused Aman who stabbed the deceased with knife.
63. It is also argued that as per FSL report, the blood on the clothes of PW-1 matched with the blood group of deceased which further proves this fact that he had taken the deceased to DDU hospital in injured condition after being stabbed by accused Aman and during this process, his clothes got stains of blood of deceased.
64. It is also argued that accused Pankaj @ Ishu has refused to participate in the TIP proceeding which makes it clear that he was involved in the committing of murder of deceased.
65. I have given my thoughtful consideration to the record and the arguments advanced as well as the case laws relied by accused persons.
66. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 43 of 61 chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. 1997 (3) Crimes 55 titled Sadhu Singh Vs State of Punjab.
67. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case..... Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response. Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case."SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 44 of 61
68. Before adverting to the analysis of evidence which has come on record it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
69. In the instant case, the accused persons have been charged with the offence u/s 302 IPC.
70. The court shall firstly deal with the essential ingredients which prosecution is required to prove in order to establish the charge against the accused.
71. The offence of murder U/s 302 IPC is the most heinous crimes under the penal law which provides a maximum punishment uptil death. Section 302 IPC provides for punishment for murder in a very simple language thereby laying down that "whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine". The substantive offence of murder is defined u/s 300 IPC which provides for an inclusive definition of murder, at the same time distinguishing it with section 299 IPC where the culpable homicide not amounting to murder has been explained. The offence of murder requires a perfect combination of important ingredients of crime which are mens rea and actus reus. It also prescribes that there should be a complete coherence between the actus and mens rea at the time of death of a person is committed. The section further provides that in case the degree of actus or mens rea is lessoned, or the circumstances falls under any of the exceptions as enumerated, in such an eventuality, the offence again slips SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 45 of 61 back to Section 299 IPC. Simply stating in every offence of murder, there shall a culpable homicide as defined under section 299 IPC but not vice a versa. Reliance placed on (1997) 2 Crimes 78 titled Narsingh Challan Vs. State of Orissa.
72. When a death is caused by injuries, the case either covered within the purview of section 300, firstly, where the act is caused by intention of causing death or it may fall under section 300 thirdly where the intention of the accused is to cause bodily injuries on the deceased which are of such nature that they are sufficient in ordinary course of nature to cause death. The emphasize in later case is on sufficiency of injuries inflicted. This sufficiency is actually of such a nature that there is high probability of death being ensued in ordinary course of nature. When they do actually exist and death ensues as a result of causing of such intended injuries, the offence is murder. Reliance placed on 1997 CR. L.J. 2430 State Vs. Vishnu Daga Pagar.
73. Further pertinent to mention here that in cases like death / murder, generally there are hardly any eye witness and law postulates in a criminal trial, two kinds of evidence adduced before the Court, one is the ocular evidence or the eye witness account which is basically taken to be a direct evidence and is based on the deposition of eye witness(es) on the basis of his/her observation made at the time of commission of crime. The other kind of evidence is circumstantial evidence which is basically known to be an indirect evidence, deduced from the existing facts and is an SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 46 of 61 inference drawn from proved facts. Now, this kind of evidence is also an admissible evidence in a criminal trial but this kind of evidence has to be treated with a lot of caution and circumspection by the criminal Court because of the inherent subjectivity in drawing the conclusions by the Court concerned. The law regarding the nature and character of proof of circumstantial evidence has been settled by several authorities of Hon'ble Supreme Court and the Hon'ble High Courts in India. The locus classicus of the decision was rendered by Hon'ble Justice Mahajan of the Hon'ble Apex Court in Hanumant Vs State of Madhya Pradesh 1953 Crl L J 129 who expounded the concomitants of the proof of a case based on circumstantial evidence by holding:
"The circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved.. it must be such as to show that within all human probability the act must have been done by the accused."
74. This was followed consistently by the Court in India in all future decision and was succinctly reiterated by a Full Bench Judgment of the Hon'ble Apex court in Sharad Birdhichand Sarda Vs State of Maharastra, 1984 Crl L J 1738 where the Hon'ble Court while discussing the entire gamut of decision has laid down the five golden principals of proof in a case based on circumstantial evidence thereby laying down that the following conditions must be fulfilled before a case against an accused can be fully established:
SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 47 of 61(1) the circumstances from which the conclusion of guilt is to be drawn should fully established.
2) the facts so established should be consistently only with the hypothesis of the guilt of the accused that is to say, they should not be explained on any other hypothesis except that the accused is guilty.
3) the circumstances should be of a conclusive nature and tendency.
4) they should exclude every possible hypothesis except that 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."
75. The two basic ingredients necessary for proving a case u/s 302 IPC are the intention to commit offence (mens rea) and the act done to execute that intention (actus reas). For better appreciation of the case at hand, Sec. 300 IPC which provides the definition of murder is reproduced as under:
"300.Murder.- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, Secondly, -if it is done with the intention of causing such bodily injury SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 48 of 61 as the offender knows to be likely to cause the death of the person to whom the harm is caused, or-
Thirdly.-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-
Fourthly.-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 of such injury as aforesaid."
76. Now, I shall proceed to deal with the arguments raised by defence in the light of section 300 IPC.
77. In the present case, both the prosecution as well as defence have heavily relied on the testimony of their star witnesses i.e PW-1 Ajay and DW-1 Sonu respectively to establish their case. Therefore, before proceeding further to decide the case, I shall try to ascertain the veracity of both these witnesses which is very crucial to the fate of this case.
78. Ld. Defence Counsels have argued that the testimony of PW-1 is not reliable at all as his testimony is contradicted by PW-15 Mohd. Gauri who has categorically deposed that on the date of incident, at about 01:30 PM - 02:00 PM, he SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 49 of 61 was standing at the Chowk of J.J. Colony, alongwith his friend Sonu and Ajay. In the meanwhile, some persons came and informed that one boy had received knife injuries and the said persons also informed that the said boy was at the shop of Doctor. He further deposed that they reached at the clinic of said doctor, where the injured was lying and it was situated at a distance of about 100 Mtrs. from the place where they were standing. Injured was earlier known to him and his name was Bharat. Some body part was excluded from his abdomen and he was bleeding. Thereafter, he alongwith Ajay took Bharat to DDU hospital, where he was declared "brought dead" by the doctor. He stayed there for about 15-20 minutes and thereafter, he left for his house. He further deposed that his vest got blood stained. When they were taking Bharat to the hospital, he tied his shirt on his wound.
79. It is interesting to note that PW-15 had also deposed that clothes of Ajay were not blood stained. This statement is against the record. In his statement given to the IO u/s 161 Cr.P.C, he had stated that deceased Bharat was on the lap of PW-1 Ajay whereas he had his legs on his lap. Further, as per FSL report, the blood on the clothes of PW-1 Ajay matched with the blood group of deceased and hence, the deposition of PW-15 appears doubtful in view of the scientific evidence which has come on record.
80. It is also pertinent to mention here that at the time of recording of testimony of PW-15, he was produced from judicial custody being involved in two cases of murder and attempt to murder. Therefore, in view of his involvement in SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 50 of 61 serious offences, his testimony becomes doubtful and cannot be relied at all and does not in any manner affect the testimony of PW-1.
81. As regards the testimony of DW-1 Sonu, he has deposed that he alongwith Ajay(PW-1) and Gauri (PW-15) was standing at Pankha Road when some boys of the locality came running and told that one boy namely Bharat had sustained injury and was taken to nearby clinic. He further deposed that thereafter all three of them went to the said clinic where doctor advised to take the injured to hospital and accordingly, Gauri and Ajay took the injured to hospital.
82. In his cross examination by Ld. State Counsel, when DW-1 was specifically asked if he knew Ajay s/o Dal Chand r/o A-691, JJ Colony, Pankha Road, Delhi, he replied in negative.
83. In order to test the veracity and credibility of the testimony of PW-1 and DW-1, I deem it appropriate to discuss some case laws of Hon'ble Supreme Court of India on this point.
84. In Darya Singh vs State of Punjab reported as AIR 1965 SC 328, this is what the Supreme Court had to say on evaluation of evidence of an interested witness:-
"6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 51 of 61 alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully. But a person may be interested in the victim, being his relation or otherwise, and may not necessarily be hostile to the accused. In the case, the fact that the witness was related to the victim or was his friend, may not necessarily introduce any infirmity in his evidence. But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal courts examine the evidence given by such witness very carefully and scrutinize all the infirmities in that evidence before deciding to act upon it...It may be relevant to remember that though the witness is hostile to the assailant, it is not likely that he would deliberately omit to name the real assailant and substitute in his place the name of the enemy of the family out of malice. The desire to punish the victim would be so powerful in his mind that he would unhesitatingly name the real assailant and would not think of substituting in his place the enemy of the family though he was not concerned with the assault. It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor which has to be borne in mind in appreciating the evidence of interested SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 52 of 61 witnesses. On principle, however, it is difficult to accept the plea that if a witness is shown to be a relative of the deceased and it is also shown that he shared the hostility of the victim towards the assailant, his evidence can never be accepted unless it is corroborated on material particulars."
85. In Seeman alias Veeranam vs State reported as (2005) 11 SCC 142, the aforesaid legal position was explained by the Supreme Court in the following manner:-
"4. It is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the Court while scrutinizing the evidence of the interested sole witness. The prosecution's non- production of one independent witness who has been named in the FIR by itself cannot be taken to be a circumstance to discredit the evidence of the interested witness and disbelieve the prosecution SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 53 of 61 case. It is well settled that it is the quality of the evidence and not the quantity of the evidence which is required to be judged by the court to place credence on the statement."
86. In Jayabalan vs. UT of Pondicherry reported as (2010) 1 SCC 199, once again, the Supreme Court highlighted the caution required to be taken in appreciating the evidence given by the interested witness as under:-
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The Court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavor of the court must be to look for consistency."
87. In Waman vs. State of Maharashtra reported as (2011) 7 SCC 295, while dealing with the case of related witness, the Supreme Court summarized the law in the following words:-
"20. It is clear that merely because the witnesses are related to the complainant or the deceased, their evidence cannot be thrown out. If their evidence is found to be consistent and true, the fact of being a SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 54 of 61 relative cannot by itself discredit their evidence. In other words, the relationship is not a factor to affect the credibility of a witness and the courts have to scrutinize their evidence meticulously with a little care."
88. Further, Hon'ble Supreme Court in case titled as Sarwan Singh vs State of Punjab, (1976) 4SCC 369 has held as under:-
"The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration."
89. In the light of above judgments, I am of the considered opinion that the testimony of PW-1 Ajay is consistent and hence, appears probable and can be safely relied upon. As regards testimony of DW-1, same is not free from doubts as after reading his deposition including cross examination, it appears that he is a tutored witness as that of PW-15 Mohd Gauri.
90. As regards the argument that both PW-16 and PW-17 have not supported the case of the prosecution, I am of the considered opinion that their not supporting the prosecution case do not prove fatal to the fate of this case.
SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 55 of 6191. This court is conscious of the fact that there are certain glaring lacunas in the story of the prosecution like non lifting of earth material of the crime spot, non production of the photographs of the place of incident, non examination of Deepak, non recovery of mobile phones and call detail records, however, at the same time, there are important evidences like FSL report, post mortem report and recovery of weapon of offence and vehicles used in the crime as well the direct testimony of PW-1 Ajay.
92. Moreover, the disclosure statements of accused persons are of vital evidence against them.
93. It is the settled principle of law that where the disclosures made by accused persons lead to the recovery of weapon of offence or other incriminating evidences, same are admissible in evidence.
94. In the present case, pursuant to the disclosure statement of accused Pankaj @ Ishu, the motorcycle Bajaj pulsar was got recovered. Similarly, pursuant to disclosure made by accused Ankit, weapon of offence i.e knife was got recovered as well as blood stained clothes worn by him.
95. Except few short comings as pointed out in the investigation and three prosecution witnesses i.e PW-15, PW-16 and PW-17 turning hostile, all the remaining prosecution witnesses have corroborated each other and have successfully stood the test of cross examination and nothing contrary whatsoever has come during their cross SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 56 of 61 examination.
96. Another argument raised by defence is that prosecution failed to prove any clear motive and hence in the absence of any motive, the prosecution case fails.
97. Though it is the settled proposition of criminal law that for any crime, there must be mens rea.
98. For the purpose of determining this essential ingredient of motive (mens rea), I have carefully perused the disclosure statements of accused persons, which is now of vital evidentiary value because of recovery of weapon of offence and vehicle used in the crime. Accused Ankit Aggarwal in his disclosure statement has stated he was informed by his friend Rajat who was studying in A-1 Block Govt. School Janak Puri that Ajay who had inflicted blade injury above his left ear two years back, had come to the school alongwith his friend. In order to take revenge, he called other two accused persons.
99. On a perusal of his disclosure statement, it is clear that he called his two associates/co-accused to teach Ajay a lesson and during that process, while Ajay managed to rescue himself, his friend Bharat was caught by Ankit and accused Aman inflicted injuries on deceased Bharat. Therefore, it cannot be said that there was no motive, the motive was there to teach Ajay a lesson, however, during the scuffle, accused Aman injured Bharat and Ajay managed to save himself.
SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 57 of 61100. Even otherwise, it has been held in a number of decisions of Hon'ble Apex Court and is now a settled proposition of criminal law that where there is direct evidence, motive is immaterial.
101. PW-25 Dr. Komal Singh who conducted the post mortem on the dead body of deceased Bharat opined in his report Ex.PW25/A that the cause of death was hemorrhagic shock subsequent to stab injury to the kidney. Injury no. 3 is sufficient to cause death in ordinary course of nature. He further opined that all the cut marks could be possible by the knife used by the assailants.
102. The above testimony of PW-25 further corroborates the prosecution story that the deceased was murdered by stabbing injuries inflicted by knife.
103. The testimonies of other witnesses (police witnesses) i.e IO of the case and the staff accompanying him also corroborates the version of other public witnesses.
104. The case laws relied on by Ld. Counsel for accused persons are not applicable to the facts and circumstances of the present case because of distinguishable facts.
105. The accused persons have merely taken the general plea of false implication and no specific suggestion has been put by any of the accused to PW-1 as to why accused persons have been named by him in his complaint. No probable defence has been put forth by the accused persons and in the absence of any defence, the prosecution SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 58 of 61 story appears probable.
106. As regards the argument of defence that chance prints were not lifted from the knife or photographs of the crime not produced or that no CDRs were collected to corroborate the allegations against the accused persons, though these evidences would have been of much assistance to this court in arriving at the decision in this case, however, it is also a fact that in this case, there is direct evidence in the form of testimony of PW-1 Ajay as well as scientific evidences in the form of the post mortem report and FSL report wherein it is clearly mentioned that the blood on the clothes of PW-1 Ajay (who took the deceased to hospital) and accused Aman (who stabbed deceased with knife) matched with the blood group of deceased coupled with the recovery of weapon of offence and motorcyle used in the crime at the instance of accused Aman and Pankaj @ Ishu respectively.
107. It is the settled proposition of law that merely the fact that there are certain lacunas in the case does not itself discredit the testimony of the prosecution witnesses where the facts and circumstances and the testimonies of the witness directly point towards the guilt of the accused.
108. In the present case, though it is apparent that the investigation has not been done properly leaving so many lacunas for the reasons best known to the IO of the case, however, at the same time, this court cannot take its eye off the cogent evidence in the form of PW-1 and scientific evidence by way of FSL report, post mortem, all of them SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 59 of 61 indicating the involvement of accused persons in the crime.
109. In Dayal Singh Vs. State of Uttaranchal AIR 2012 Supreme Court 3046, Hon'ble Supreme Court of India while dealing with the aspect of defective investigation referring to the cases Ram Bali V. State of Uttar Pradesh (2004) 10 SCC 598 : [(AIR 2004 SC 2329:
2004 AIR SCW 2748)], the judgment in Karnel Singh V. State of M.P. [(1995) 5 SCC 518: (AIR 1995 SC 2472: 1995 AIR SCW 3644)] had 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'.
110. This court is conscious of the settled principle of law which says that there is reasonable doubt, the benefit of it must go to the accused persons.
111. Therefore, keeping this proposition in mind, this court is cautious and conscious in holding that the doubts that have become apparent in the present case are not so reasonable as to give benefit of doubt to the accused persons.
112. In view of judgment Dayal Singh (supra), this court is further fortified in its decision in holding that all three accused persons in furtherance of their common intention, restrained the deceased as well as PW-1 Ajay and SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 60 of 61 thereafter, caused the death of deceased by stabbing him with knife on 02.09.2011.
113. Therefore, in view of the above discussion, this court is of the considered opinion that prosecution has been able to bring home the guilt of the accused persons.
(E) CONCLUSION:
114. In view of above discussion, this court holds that all three accused are held guilty for committing offence punishable u/s 302/341/323/34 IPC.
115. Let they be heard on the point of sentence.
116. As I have observed above, the IO of this case has done very shoddy investigation in this case, hence, a copy of this judgment be sent to the Commissioner of Police, Delhi for taking appropriate action at his end.
Digitally signed by POORAN POORAN CHAND CHAND Date: 2019.08.26 ANNOUNCED IN THE OPEN 15:41:46 +0530 COURT ON THIS 23.08.2019 (POORAN CHAND ) ADDITIONAL SESSIONS JUDGE-02 (WEST):DELHI SC No. 57728/16 State Vs. Ankit Aggarwal etc. Page 61 of 61